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.