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Friday, October 18th 2013

Competency Not Guaranteed By Malpractice Threat

Been a while since I wrote about medical malpractice reform. It used to dominate posts on this blog. But an interesting story from Texas is making the rounds and so it seemed appropriate to comment.

I had this idea, even through medical school, that all physicians were essentially equivalent. Of course there are the great surgeons or clinicians. But in general, you get a level of basic competency that means for the most common things it probably doesn’t matter which surgeon takes your gallbladder out or does your lumbar fusion.

Training has taught me that such is not the case. But sometimes the disparities are stunning.

Dr. Randall Kirby was another surgeon at Baylor Plano. In January 2012, he assisted on one of [Dr. Christopher] Duntsch’s surgeries. Kirby had spent 16 years performing general surgery in the Dallas area, in which time he’d assisted on more than 2,000 spine operations. Duntsch, he said, was the worst.

“His performance,” Kirby wrote, “was pathetic . . . He was functioning at a first- or second-year neurosurgical resident level but had no apparent insight into how bad his technique was.”

Another surgeon took to faxing the UTHSC a picture of Dr. Duntsch to make sure he had actually graduated from neurosurgical residency, convinced he was an impostor.

“He had amputated a nerve root,” Henderson said. “It was just gone. And in its place is where he had placed the fusion. He’d made multiple screw holes on the left everywhere but where he had needed to be. On the right side, there was a screw through a portion of the S1 nerve root.”

At first, Henderson thought Duntsch might be an impostor. He faxed over a picture of Duntsch to the residency program at the University of Tennessee Health Science Center to see if Duntsch had graduated.

“I couldn’t believe a trained surgeon could do this,” Henderson told me. “He just had no recognition of the proper anatomy. He had no idea what he was doing. At every step of the way, you would have to know the right thing to do so you could do the wrong thing, because he did all the wrong things.”

The facts conceded, its difficult to buy the conclusions of the Texas Observer.

Up until 2003, medical care in Texas was regulated by a system of checks. Hospital management, the court system and the Texas Medical Board formed a web of regulation that penalized and prevented bad care.

[I]n the past 10 years, a series of conservative reforms have severely limited patients’ options for holding doctors and hospitals accountable for bad care. In 2003, the Republican-dominated Texas Legislature capped pain-and-suffering damages in medical malpractice lawsuits at $250,000. Even if a plaintiff wins the maximum award, after you pay your lawyer and your experts and go through, potentially, years of trial, not much is left.

The Legislature has also made suing hospitals difficult.


The medical malpractice cap and the near-immunity for hospitals snapped two threads from the regulatory web. What remained was the Texas Medical Board.

But the Medical Board wasn’t designed to be an aggressive enforcer. It was mostly designed to monitor doctors’ licenses and make sure the state’s medical practitioners are keeping up with professional standards.


What all this means is that the Texas Legislature has committed the state to a policy of medical deregulation—a free-market system in which doctors can practice as they please with limited government interference. Only their consciences, and those of their fellow doctors, limit them.

It’s true that since capping malpractice awards, complaints to the Texas Medical Board and medical board investigations of physicians has gone up. But such may easily reflect legislation that broadened the responsibilities of the Texas Medical Board, to conduct such investigations, rather than the legislation capping awards.

The increases in investigations and disciplinary actions were mainly driven by the legislature, according to Dr. Stewart. The lawmakers mandated greater oversight by the medical board, so that undoubtedly led to an increase in enforcement.

The limited evidence seems to imply that the threat of litigation serves as no significant deterrence against medical error or poor medical outcomes.

Among the key rationales typically invoked to support a system of medical malpractice law is the notion that fear over medical liability may incentivize a physician to provide a level of quality that she would not have otherwise provided absent the law.


[T]he literature has generally failed to provide systematic support for any contention that the existing medical liability system is effective in improving health care quality.


[T]here is little evidence to suggest that the geographic standardization of medical malpractice law is associated with a corresponding standardization of observed quality, implying that healthcare quality may not be so responsive to liability standard

I’m disheartened to see such at the heart of the Texas Observer’s thesis. And to have been picked up by economists and other journalists.

That is a totally baseless argument. The errors that occurred in the Texas Observer story – all of them – would’ve still occurred in pre-cap Texas.

We can have a legitimate debate on whether the caps hinder justice for those patients injured. Whether they deserve more compensation. I’ve voiced my thoughts on such. The fact that most claims are frivolous and the costs of defense of such claims are enormous, and the fact that most truly injured by negligence don’t even seek compensation factors strongly into my opinion.

What we shouldn’t pretend, but what the Texas Observer does, is that tort reform in Texas made these horrors more likely or even inevitable. It didn’t. The threat of litigation doesn’t deter medical errors.