LawSquawker • Thomas & Wan's Blawg

Thank God this surgeon has finally lost his license ...no comfort to the patients he maimed or killed though: Physicians who complained about Duntsch to the Texas Medical Board and to the hospitals he worked at described his practice in superlative terms. They used phrases like “the worst surgeon I’ve ever seen.” One doctor I spoke with, brought in to repair one of Duntsch’s spinal fusion cases, remarked that it seemed Duntsch had learned everything perfectly just so he could do the opposite. Another doctor compared Duntsch to Hannibal Lecter three times in eight minutes. Enforcement by the Texas Medical Board can only make things better--bad doctors only hurt and kill patients...and make things more difficult for good doctors...the Texas Observer has a well-written piece about the lack of enforcement.  Hopefully things will change for the better before more innocent patients are maimed or killed: Public Citizen concluded that the board moves slowly because it’s understaff...

Nice to see the courage from UH law student Benjamin Kemmy   to highlight the hypocrisy of tort "reformers" in Texas...and the greatness of our 16th President--a great trial lawyer. My favorite example is the 1857 case,  Macready v. City of Alton . Mary Macready, a New York actress, was walking down the street in Alton, Ill., and fell through some sidewalk construction and badly injured her ankle, leg and back. Lincoln demanded $20,000 but was only able to recover $300 at a jury trial. Imagine that! Not more than four years before he began prosecuting the war to save the Union, the Great Emancipator was prosecuting a simple P.I. case! But if you know a little bit about Lincoln, and you’re a not a member of Texans for Lawsuit Reform, that shouldn’t come as too big of a surprise. Lincoln, a true lover of the American justice system, had great respect for its foundational practice—the trial by jury. Juries, as Lincoln well knew, are one of the indispensible features o...

The latest from the Dallas Morning News confirms what most attorneys already know--in Texas, civil jury trials are disappearing.  Walk into the Harris County Civil Courthouse and wander around the empty floors--it feels like an abandoned building.  The Seventh Amendment is being eroded by many things: the high costs of litigation, tort "reform," arbitration and people who distrust ordinary Texans to serve on a jury.  A sad state of affairs.   “The Texas appellate courts have all but told trial judges that they need to grant more motions for summary judgment and let fewer cases go to trial,” said Steve McConnico, an Austin lawyer. “We write motions for summary judgment today for our corporate clients that we would have laughed at only a few years ago,” said McConnico, whose clients include large energy and pharmaceutical companies. “The Texas Supreme Court has made proving causation and damages in all kinds of cases much more difficult. “It is sad that this valuable...

A New York Times Op-Ed summarizes a study showing that hospitals learn from litigation and make changes to help protect all of us: Over 95 percent of the hospitals in my study integrate information from lawsuits into patient safety efforts. And risk managers and patient-safety personnel overwhelmingly report that lawsuit data have proved useful in efforts to identify and address error. A good goal for every industry, whether it is in the medical field, legal field, petroleum industry--learn from your mistakes so you don't do it again.  Common sense, right?  Unfortunately, sometimes, it takes a lawsuit to bring about learning...

Rick Perry's strategist is now blaming Gov. Perry's doctors for his continued back pain and laments the fact that he can't sue because of tort reform...which, of course, Gov. Perry signed into law in 2003... Mr. Carney blamed bad advice from a doctor, who said the Texas governor would recover from surgery more quickly than he did. Sadly, Mr. Carney continued, Mr. Perry has no recourse against the doctor because Texas has strict limits in medical malpractice cases, making such lawsuits mostly a waste of time. “It’s just a fact; it’s not an excuse,” the strategist offered, according to a  Washington Post  account. “We passed tort reform in Texas, so we can’t actually sue the doctors for what they told him.” Back in 2003, the Texas Legislature passed tort reform and later Governor Rick Perry and his wife pushed voters to change the constitution.  "Proposition 12 protects your family," said Anita Perry in a television commercial.

I read this in Newsweek while getting ready for work this morning.  I'd like to say it surprised me, but unfortunately, it doesn't.  We live in a free country where we can get candid reviews on everything from restaurants to lawnmowers to investments, but when it comes to the most important thing--our health (and life itself)--we have almost no information about our hospitals . A 2010  New England Journal of Medicine  study concluded that as many as 25 percent of all hospitalized patients will experience a preventable medical error of some kind, and 100,000 will die annually because of errors. If medical error were a disease, it would be the sixth-leading cause of death in the country. How can we as consumers of healthcare make informed choices when we don't have information on where the best and safest care is provided? Take, for instance, the National Practitioner Data Bank collected by the U.S. Department of Health and Human Services, which is also known...

A letter from Tea Partier Mark McCaig of Texans for Individual Rights/StopTLR to Republican officials in Texas who want to continue suing the federal government--these are some of the same Republicans that want to keep individuals and small businesses from suing for negligence caused by others, i.e. "tort reform."   Make no mistake- there is absolutely NO difference between Attorney General Abbott going to court to defend the rights of Texans and a private attorney going to court to stand up for those who have been harmed. Likewise, Texas Monthly reiterates what we have long known:   T exas Tort Reform Has Had No Effect on Physician Supply, Lowering Costs ...and not surprisingly Gov. Rick Perry gets it wrong also... Four researchers—including a University of Texas law professor— concluded  that there was no evidence that Texas physicians were leaving the state prior to the 2003 law, or that there was a significant increase in physicians moving to Texas because o...

KXAN of Austin has more on the recent report by Public Citizen showing that 58% of sanctioned Texas doctors have still not been disciplined: Report: Dangerous docs not sanctioned Some facts contained in the 18-page report regarding the severity of the doctors' offenses include: Many of the physicians were disciplined by hospitals and other health care institutions because they were deemed an immediate threat to the health and safety of patients, incompetent or negligent, they committed sexual misconduct or insurance fraud, they abused drugs or alcohol, or they provided substandard care to patients. A quarter of the 459 physicians have been sanctioned by health care facilities more than once. Nearly half of the 459 physicians had one or more medical malpractice reports.

Yet another thing Texas chooses to underfund...the Texas Medical Board...  Choosing not to discipline gross misconduct of these bad apples brings down the good work that most physicians provide to us, thus lowering the health care standards to the detriment of everyone.  As Public Citizen reports,  459 Physicians Have Been Sanctioned by Texas Hospitals and Other Health Care Institutions But Not Disciplined by the State Medical Board: Fifty-eight percent of Texas doctors who have been sanctioned for serious offenses by health care entities, mainly hospitals, over the past two decades have never been disciplined by the state medical board . This shows that the state must do a much better job to protect patients from such dangerous doctors, Public Citizen told Gov. Rick Perry today. Some facts contained in the report regarding the severity of the offenses of the 459 doctors who escaped board sanctions include: • Many of the physicians were disciplined by hospit...

Unfortunately, the Texas judicial system continues to be stacked against injured parties and in favor of negligent people and insurance companies: A personal tragedy has turned into a very public legal fight for one Texas family. It's a story that may shed some light on weaknesses within the state's judicial system. Imagine not being able to remember where you were sitting at a restaurant after a simple trip to the restroom. That’s the life Michelle Gaines leads today. A traumatic brain injury suffered in a devastating car wreck in 2006 robbed her of a healthy mind. Then, a jury in her community awarded her $8 million, before a court of appeals overturned it. Now, the Texas Supreme Court is refusing to hear the case .

This from the American Association of Justice : Less than a quarter of the claims that doctors filed with an insurer seeking coverage for medical malpractice liability resulted in payments to the patients who alleged harm, according to a study published in the New England Journal of Medicine . The low rate of payments shows that insurers deny far more claims than they pay--and that the so-called medical malpractice crisis is nonexistent, plaintiff lawyers say. The study, " Malpractice Risk According to Physician Specialty ," looked at data between 1991 and 2005 for all the physicians covered by one national insurer. It found that while 7.4 percent of physicians faced a malpractice claim annually, only 1.6 percent had a claim that led to a payment. Seventy-eight percent of claims did not result in payments. The study considered only claims filed with the insurer, not lawsuits filed in court. "What this new study tells us is that the supposed wa...

Scary. Very scary. From KRIS Corpus Christi and Texas Watch : Corpus Christi neurosurgeon Stefan Konasiewicz is on trial in Minnesota this week for medical malpractice. Konasiewicz left a trail of medical incompetence in Minnesota that has resulted in nine medical malpractice lawsuits , some involving patient deaths, as well as a public reprimand by the Minnesota Board of Medical Practice . Rather than face the music in Minnesota Konasiewicz fled to Texas where lax oversight and a broken legal system allow bad doctors to keep seeing patients, turning our state into a safe haven for dangerous doctors like Konasiewicz. The Texas Medical Board, which is tasked with policing the medical profession, isn’t required to disclose – or even look into – cases of medical malpractice when a doctor moves from another state. So, patients have no way of knowing what their physician’s track record is . On top of that, if you are injured (or worse), the law is structured such tha...

Just a note to pass along for the upcoming weekend as we celebrate July 4th--BE SAFE and avoid the hospital! A recent study published by the Journal of General Internal Medicine reported a 10 percent spike in teaching hospital deaths during the month of July due to medical errors. CNN reports on the effect--here's an excerpt: Typically, medical students graduate in June and begin their first year of residency training — internship — in July. This group of eager new interns invades the hospital to learn, care for patients, and make medical decisions. One problem. They don’t know what they’re doing. Like most interns, I arrived with four years of medical school under my belt, an M.D. after my name, and virtually no practical knowledge of medicine. Although I wore the long white coat of a doctor, I kept my pockets packed with condensed medical manuals that we called our “peripheral brains” to make up for the lack of knowledge held in my actual brain. Thank God for these m...

Tort reformers and Gov. Perry tout the success of Texas's medical malpractice tort reform as a cost control measure. But, this article from the Washington Post shows that Texas spending on Medicare has actually gone up since 2003: For instance, we could look at Texas, where non-economic damages on malpractice lawsuits were capped at $250,000 about eight years ago. You might remember when Rick Perry and Newt Gingrich said: Texas, for example, has adopted approaches to controlling health-care costs while improving choice, advancing quality of care and expanding coverage. Consider the successful 2003 tort reform. So what happened to costs of care after that law was put in place? Public Citizen analyzed just that (pdf) using data from the Dartmouth Atlas of Health Care ( Selected Medicare Reimbursement Measures ): Texas is blue, the nation is red, and the law went into place at the dotted line. If anything, Texas’s Medicare spending seems to have gone up faster than the ...

The U.S. Food and Drug Administration announced Wednesday that it would restrict access to GlaxoSmithKline PLC's diabetes drug Avandia and pull it from retail pharmacies because of the drug's link to increased risks of heart attack and stroke. After Nov. 18, Avandia will no longer be available at pharmacies , and doctors and patients will need to enroll in an FDA program in order to prescribe and receive the medicine, according to the agency.

The Texas House just passed the "Loser Pays" bill without any debate. In reality, a "winner" in a lawsuit could end up owing the "loser" money! We can stop this now if you contact your Texas Senator and give him or her this example courtesy of my colleague Steve Waldman : The "Loser Pays" bill that was just ramrodded through the Texas House, without debate, should be called "Winner Pays." If this bill becomes law, the winner of the lawsuit may have to pay the loser's attorney's fees. There is no cap on the amount the winner has to pay . A plaintiff - and this includes a small business - can win a lawsuit and go bankrupt . The following scenario can actually happen: 1. Joe's Lawn Service ("Mom and Pop" small business) buys 10 Hodna (company name changed to protect...) tractors at a cost of $100,000. 2. The tractors do not work, costing Joe to lose most of his landscape busine...

There is hope that the U.S. Supreme Court will hear a case that could allow military personnel who are victims of medical malpractice to sue military medical providers. This is a sad and horrible case in which Air Force Staff Sgt. Dean Patrick Witt was hospitalized in 2003 for what should have been a routine appendectomy at Travis Air Force Base in Fairfield, Calif. After surgery, a nurse anesthetist inserted a breathing tube into his esophagus instead of his trachea or airway, depriving his brain of oxygen. Witt, of Oroville, Calif., died after his family removed him from life support three months later. Current law protects the military and prevents Staff Sgt. Witt's family from receiving any justice for this malpractice. Veterans, military families and others who oppose the decades-old law, the Feres Doctrine , that shields military medical personnel from malpractice lawsuits are rallying around a case they consider the best chance in a generation to change the protect...

I thought this piece by Maureen Dowd was very sobering and very funny. We are so afraid to speak up sometimes that it costs us our lives: When my brother went into the hospital with pneumonia, he quickly contracted four other infections in the intensive care unit. Anguished, I asked a young doctor why this was happening. Wearing a white lab coat and blue tie, he did a show-and-tell. He leaned over Michael and let his tie brush my sedated brother’s hospital gown. “It could be anything,” he said. “It could be my tie spreading germs.” I was dumbfounded. “Then why do you wear a tie?” I asked. He shrugged and left for rounds.

"The great enemy of the truth is very often not the lie -- deliberate, contrived and dishonest, but the myth -- persistent, persuasive, unrealistic." John F. Kennedy Here is a site that dispels many of the email forwards and that "I heard that" stories about lawsuits. Unfortunately, the truth often times is merely something that is repeated over and over again.

What is the sixth biggest killer in America? Car wrecks? Cancer? Heart attacks? No, it's medical errors... Preventable medical errors kill and seriously injure hundreds of thousands of Americans every year. Any discussion of medical negligence that does not involve preventable medical errors ignores this fundamental problem. And while some interested parties would prefer to focus on doctors’ insurance premiums, health care costs, or alternative compensation systems—anything other than the negligence itself—reducing medical errors is the best way to address all the related problems. Preventing medical errors will lower health care costs, reduce doctors’ insurance premiums, and protect the health and well-being of patients. Justice.org has the full story .