The final betrayal of the public, and specifically the victims of Dr. Christopher Duntsch, aka Dr. Death, actually took place years before his surgical rampage through the Dallas area. In 2003, the Texas legislature, responding to what it claimed was a malpractice crisis, enacted a special law applicable only to medical malpractice cases. Under the terms of the law, non-economic damages arising out of medical malpractice were capped at $250,000. Lost your wife and mother of your children to a bad doctor and she wasn’t working outside the home? $250,000 max award. Lost your baby because the doctor didn’t come to the hospital when your baby got in trouble? $250,000 max award. Lost your arm, but you were already on disability when it happened? $250,000 max award. Chronic pain every moment for the rest of your life? $250,000 max award.
Of course, the Texas legislature trumpeted the cap on malpractice awards as a great victory for the citizens of the Lone Star State. Malpractice caps would usher in a golden era in which doctors would flock to Texas to enjoy its freedom from frivolous lawsuits. Costs of insurance for doctors would go down and the savings would be passed on to patients, resulting in lower medical bills. A win-win for everyone. That this golden era would be based on depriving victims of their legal rights went unmentioned. Anyway, these people should be happy to sacrifice their rights for the good of the rest of the citizens of Texas.
To the surprise of no one who understands how these things work, there was no golden era for the citizens of Texas. Doctors did not flock to Texas and most definitely the cost of medical care did not go down. Two groups did enjoy a golden era and continue to do so: Doctors, whose insurance premiums went down and who pocketed the savings; and malpractice insurance companies, that no longer have to worry about those pesky victims seeking justice for the loss of their loved ones or for the physical injuries done to them.
As it was intended to do, the law capping malpractice awards made it very difficult for patients, who were horrifically injured but who did not have large economic losses, to find lawyers willing to represent them against the doctors who injured them. Medical malpractice cases are complex and expensive. They require a lot of lawyer time, for which the lawyer does not get paid unless she wins the case. The lawyer’s fee is usually a percentage of the recovery so, if the recovery ls limited to $250,000, the lawyer’s fee will similarly be limited. Malpractice cases almost always involve numerous expert witnesses, who charge upwards of $600 per hour. It is very hard for an experienced, competent lawyer to accept a malpractice case in which the total recovery is capped at $250,000. Since most of the victims of Dr. Death were older or disabled or earning only low incomes when they went to see him, they did not have large economic losses. As a result, they got turned down by the best malpractice lawyers in Texas thanks to the efforts of the Texas legislature.
As you can see, the Texas law giving doctors special protections that no one else in society gets was not based on the lawsuits against them being frivolous. It doesn’t matter under the law how clear the malpractice was. It doesn’t matter if the doctor who hurt you was Dr. Duntsch, who apparently could not perform a good surgery to save his life, or some other doctor. The only thing that matters is that the most seriously injured people get their rights taken away from them so that doctors and their insurance companies can make more money.
The problem of getting justice for the victims of Dr. Duntsch was further complicated by the sheer number of them. Even if a good attorney was willing to take a victim’s case, what little insurance Dr. Duntsch had could never compensate all of his victims, even after capping their non-economic losses at $250,000. Any lawyer accepting as clients patients of Dr. Duntsch was going to have to participate in the division of a very small pie. One lawyer took 14 of his patients as clients, mostly out of a sense of duty rather than because of the economics of the representation. Ultimately, 19 of Duntsch’s patients received some form of settlement. The settlements were confidential and small.
So there you have it. The patients of Dr. Duntsch were betrayed by the medical system and by the Texas legislature. The medical system made sure it protected itself first, even if that meant putting the public in danger and despite all of its prattle to the contrary. The Texas legislature, which received substantial contributions from individual doctors and from their insurance companies, made sure their donors were preferred over the rest of the citizens of Texas.
And worst of all, nothing has changed.
The post A Complete and Total Failure – Part Three first appeared on Sandweg & Ager PC.