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Dr. Death podcast illustrates many things, including the role of tort reform on patient safety.

Posted Monday, October 15, 2018 by Tyler Goldberg-Hoss

If you have not heard, there is a new podcast out called “Dr. Death.” It chronicles Texas neurosurgeon Chris Duntsch and the egregious and multiple surgical errors he made, eventually resulting in his being punished with the unprecedented sentence of life in prison.

There are multiple interesting threads within the story: the lives of the people Dr. Duntsch ruined; the medical system which allowed Duntsch to continue performing surgery in spite of this; the inside look into the relationships between different health care providers in the OR and in the hospital; the flagrant, shocking surgical errors made by Duntsch.

One thread is particularly noteworthy to attorneys who represent injured patients who have claims against health care providers – how tort reform in Texas contributed to Duntsch continuing to harm people as long as he did.

Texas, along with most other states, has passed laws restricting the rights of injured patients from bringing claims against health care providers. Ostensibly, the reasons given in support of such caps include saving money on insurance (and reducing the cost of health care for everyone), and protecting doctors from frivolous lawsuits which result in doctors leaving the state.

One significant law passed in many states, including Texas, is a cap on what are called “noneconomic” or pain and suffering damages. This means that, while a patient can bring a lawsuit to recover all of the “economic” harm done to the patient (past and likely future medical bills, lost wages, etc.), the state caps the amount of money a jury can award a claimant for noneconomic damages – the pain, suffering, loss of enjoyment of life, disability, disfigurement, and similar harms.

Texas capped these types of damages at $250,000. The result was that the number of medical malpractice suits plummeted, because it was not worth an attorney’s time, effort and energy to take many such claims because the possible recovery was not worth the risk and expense.

In the cases involving Duntsch, many of his patients who were maimed or killed were elderly or who had low incomes. In many of those situations, because of the cap, it was difficult for many of them to find attorneys willing to take their case.

Lawsuits – particularly as many as would have been brought in this circumstance – would have likely raised eyebrows of Dr. Duntsch’s employers, and likely the hospitals that credentialed him to perform surgeries within its walls. He would have had an increasingly difficult time obtaining the necessary malpractice insurance. All of these things would have worked prevent Dr. Duntsch from continuing to harm patients for as long as he did.

Instead, without such lawsuits, there is even less accountability for health care providers like Dr. Duntsch.

Washington State is one of the few states with no caps on noneconomic damages, and only minor barriers to justice for victims of medical negligence. It is not for lack of trying on the part of the health care industry and corporations which insure them. Such laws impeding patients’ rights have been passed, only for the state Supreme Court to strike them down as unconstitutional.

You can listen to the Dr. Death podcast here:

Dr. Death

You can read about it here:

A Surgeon So Bad It Was Criminal

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