The last post I wrote was about (former) neurosurgeon Christopher Duntsch, who was recently convicted of a first degree felony related to his medically negligent treatment of an elderly patient’s back pain. There were extenuating circumstances in this case. Dr. Duntsch had established a pattern of egregious medical mistakes. When patients developed complications after surgery, Dr. Duntsch also had apparently tried to cover up his mistakes instead of seeking help. Then there was an e-mail that Dr. Duntsch purportedly sent to a friend in which Dr. Duntsch referred to himself as a “stone cold killer.” Earlier this week, Dr. Duntsch was sentenced to life in prison for his actions.
Dr. Duntsch’s case is an outlier. In general, I have a lot of concerns about charging physicians criminally for the medical care they provide. In the past, I’ve discussed how increasing liability for medical malpractice and “suing our way to better health care” just doesn’t work. Increasing the risk of practicing medicine has a few effects.
First of all, it decreases availability of medical care. Physicians who don’t like risk will leave risky specialties or will leave risky states. Here’s an article about how a Florida (which is a high-risk state for medical practice) legislator was whining because there was a physician shortage. Think about it. Suppose that several of the houses in your neighborhood were purchased by families who stay up late at night using drugs, who have shootouts in the streets, and who try to get kids in the neighborhood to join gangs. How would you respond to that increased risk to your family?
Second, increasing risk in medicine will increase the practice of defensive medicine. Physicians who are risk adverse will engage in more testing and more referrals, which may minimally improve outcomes but at a tremendous cost to patients and to the medical system.
There are other effects of increasing liability for physicians such as eroding the physician-patient relationship, increasing physician burnout, and increasing insurance costs, but I’m getting off on a tangent.
If you accept the premise that increasing civil liability for medical mistakes has an adverse effect on availability and cost of medical care, can you imagine what a chilling effect that criminal prosecution for medical mistakes would have on the practice of medicine in this country?
Enter attorney Christopher Hamilton, Esq. from Standly Hamilton LLC in Dallas. Mr. Hamilton told reporters for ABC News that Texas’ cap on some lawsuit damages may cause more criminal prosecutions of physicians in Texas in the future. Mr. Hamilton also asserted that if it weren’t for Texas’ malpractice caps, hospitals would have caught on to Dr. Duntsch’s egregious medical practices and would have “kicked out a doctor like this much sooner.” He continues by stating that “A lot of times, hospitals only find out about poor outcomes when a lawsuit is brought.” Finally, Mr. Hamilton goes on record as stating that the Duntsch case is “a circumstance where the civil system was not able to weed out a bad apple because of the damage caps.”
Let me see if I get this straight …
Caps on pain and suffering may increase criminal prosecution of physicians for malpractice.
Caps on pain and suffering prevent lawyers from “weeding out” poor physicians.
Filing a lawsuit alerts hospitals to the fact that a physician’s practice may have caused poor outcomes
But … even though hospitals may be alerted to a physician’s poor practice patterns by a lawsuit being filed, damage caps render hospitals powerless to take action against the physicians.
Makes perfect sense to me. I think the only thing that Mr. Hamilton missed was that damage caps caused Hurricane Katrina.
To make medical practice extra safe, we should just make damages $10 million for any incident of malpractice (even a missed piece of lint in the belly button), should make sure that lawyers get at least a 50% cut of those damages, and maybe add in public caning for doctors with low patient satisfaction scores. I’m sure that Mr. Hamilton would agree that these measures would fix everything.
I think it’s a stretch to say that any physician would intentionally injure a patient. My guess is that Dr. Duntsch was just a horribly bad doctor. Despite his impressive credentials, he had little practical knowledge in how to perform neurosurgery. In other words, my guess was that he didn’t know how much about medicine he didn’t know. See Dunning-Krueger effect. The only thing that doesn’t fit is the “stone cold killer” e-mail, but I don’t know all of the facts behind that statement.
Using this outlier case to push lame and illogical arguments in an attempt to fear-monger your way to larger jury verdicts is pretty pathetic, Mr. Hamilton.