Lawsuits Accuse Neurosurgeon of Gross Negligence, Challenge State Statute Limiting Hospital Liability for Medical Malpractice

A series of lawsuits allege that a neurosurgeon botched multiple surgeries, causing debilitating and sometimes fatal injuries. The lawsuits also seek to hold the Plano, Texas hospital that employed the doctor liable, but a state law stands in the plaintiffs’ way. The so-called hospital shield law, enacted in Texas in 2003 as part of a package of “tort reform” bills, requires a plaintiff to prove that a hospital specifically intended to cause harm in order to hold the hospital liable for the medical malpractice of a doctor. While Maryland has enacted some “tort reform” provisions, it does not have a law like this one. The plaintiffs claim that the hospital shield law violates the state constitution’s guarantee of open courts.

In one of the lawsuits, Passmore, et al v. Baylor Health Care System, et al, the plaintiff claims that Baylor Regional Medical Center (BRMC) hired Dr. Christopher Duntsch as a spinal surgeon in the summer of 2011. Duntsch reportedly had a history, of which BMRC knew or should have known, of alcohol abuse and drug use, and of evading drug screening. He had, on several occasions during his recent residency program, been reported for drug use shortly before a scheduled surgery. His performance at the hospital was allegedly “erratic and disorganized,” his drug and alcohol use allegedly continued, as did his evasion of drug screening.

The plaintiff in Passmore underwent surgery on December 20, 2011. Another surgeon present during the procedure allegedly found Dunsch’s behavior “alarming,” including operating near the plaintiff’s spine without a clear view. Operating room staff and BRMC employees reportedly witnessed an altercation between the surgeon and Dunsch, in which the surgeon tried to forcibly stop the procedure. No BRMC reported the altercation despite policies requiring them to do so, and the plaintiff underwent a second surgery by Dunsch on January 6, 2012 that caused further injury. The plaintiff states that he would not have consented to the second procedure had he known at the time what happened during the first procedure. He now suffers from near-constant pain and is unable to lift “objects of any significant weight.”

Other lawsuits allege that surgical errors caused severe pain, nerve damage, and paralysis. The lawsuits generally claim negligence against BRMC and its corporate parent, including failures to following proper nursing practices, to report concerns about Dunsch’s performance and competence through the chain of command, and to inform the plaintiff of concerns regarding Dunsch. Some of the lawsuits name Dunsch as a defendant, but any relief will likely have to come from BRMC, since the state suspended Dunsch’s medical license in the summer of 2013 and revoked it in December.

Texas law requires proof of “malice” in order to recover from a hospital for the medical malpractice of one of its physicians. State law used to define “malice” as either “specific intent…to cause substantial injury or harm” or “gross negligence,” but a 2003 bill removed “gross negligence” from the definition. The lawsuits claim that this violates the “Open Court” provision of the Texas Constitution, which is similar to Art. 5(a) of the Maryland Declaration of Rights, by “eliminating a common law right arbitrarily.”

For more than two decades, Wais, Vogelstein, Forman & Offutt’s medical malpractice attorneys have helped Maryland patients and their families recover damages for injuries caused by the negligence of doctors and other medical professionals. To schedule a free and confidential consultation to discuss how we may assist you, please contact us today online, at (410) 567-0800.