Analysis Health Systems

Texas Attorney General Defends Hospital That Employed ‘Sociopathic’ Neurosurgeon

Andrea Grimes & Jessica Mason Pieklo

Greg Abbott wants to defend a state statute that Texas hospital patients say prevents them from being able to hold hospitals, and the doctors they grant privileges to, accountable when they practice bad medicine.

Texas hospital patients who have been injured by their doctors already face a rugged legal landscape when they seek restitution in medical malpractice suits, but a new intervention by the state’s attorney general, Greg Abbott, may limit their options even further.

Abbott has asked a federal court for permission to defend four civil lawsuits—none of which name the State of Texas—that have been filed against a hospital that plaintiffs say did nothing to stop a “sociopathic” neurosurgeon from practicing in its facility.

Dr. Christopher Duntsch, who was granted surgical privileges at Baylor Regional Medical Center of Plano in 2011, practiced medicine and performed “minimally invasive” procedures in North Texas hospitals for two years before his license was revoked in 2013, at which time he’d left two patients dead and four paralyzed.

According to court documents, the plaintiffs allege that Baylor knew that Duntsch had substantial substance abuse issues and was a dangerous doctor, but did nothing to stop him. Duntsch, who now lives in Colorado and has filed bankruptcy, is effectively judgment-proof: He has no money to go toward compensating his victims for their injuries.

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That leaves the hospital, but the only way the hospital can or will contribute is if plaintiffs can prove their case, which under Texas law requires them to prove that Baylor acted with actual intent to harm patients by not properly supervising Duntsch or by keeping him a credentialed surgeon as long as it did.

Duntsch’s former patients argue that the hospital is being protected by a Texas law, HB 4, which they argue is unconstitutional. But unlike lawsuits involving abortion regulations, for example, the plaintiffs are not suing the state to block the law. That means the State of Texas is not a party to this dispute and could, if it wanted to, let this private lawsuit move forward without devoting a single state dollar to it.

Instead, Republican Attorney General Greg Abbott is coming to the law’s, and the hospital’s, defense—at the same time that he is defending HB 2, Texas’ omnibus anti-abortion law that was enacted, conservatives say, because the hospital admitting privileges that the law requires of abortion-providing doctors will guarantee a higher standard of care.

In inserting his office into this case—one in which admitting privileges not only did not increase the standard of care, but created a situation wherein a hospital appears to have had a vested interest in protecting a negligent, and potentially deliberately harmful but money-making doctor to whom it had granted admitting privileges—Abbott is seeking to make it harder for patients who are victims of bad doctors at hospitals to obtain restitution for harm done.

If Abbott cares about Texans who would be harmed by bad doctors—bad doctors with hospital admitting privileges—it seems a strange move to go out of his way to ensure that patients have as little recourse as possible to address that harm.

As it turns out, Republicans in Texas have a long history of attacking health-care access in the state, and it’s a history not confined to only curbing abortion access and cutting off family planning services.

Back in 2003, Texas conservatives drastically re-shaped the state’s medical malpractice laws with HB 4, to the extent that, for most Texans, the possibility of holding negligent doctors and hospitals liable for bad medical care just simply isn’t an option. This is the law Abbott is defending.

Medical malpractice claims are often complex and expensive. To prove a claim of medical malpractice, a plaintiff typically must show that a provider violated the standard of care in their treatment and that the violation injured them. Medical malpractice claims are also typically claims of negligence, which means the plaintiff doesn’t have to prove that the doctor or provider’s mistake was intentional, just that it deviated enough from what should have happened that it’s fair to have the doctor or provider help pay for the damages that the mistake caused. This is especially true in the context of medical negligence, because the costs related to an injury are often extreme. In the worst cases, a patient dies; but in other cases, the patient and their family can be left carrying the cost of their uninsured medical expenses and future care, which in cases of severe injury tops millions of dollars in a lifetime.

Like other tort reform measures, which seek to reform personal injury law, HB 4 did little to advance patient safety but did much to insulate negligent doctors and hospitals from malpractice damage awards. HB 4 restricts the rights of patients in several dangerous ways. First, it imposes a $250,000 cap on non-economic damages in a malpractice suit. Non-economic damages are the only kind of compensation a jury can award for the injury itself, as opposed to compensation for things like lost wages, attorneys’ fees, and medical bills.

“This bill was passed despite there being no data to support that these kinds of damages caps keep costs down or help patients,” Alex Winslow, executive director of the consumer protection advocacy group Texas Watch, explained to Rewire. “The data just isn’t there.”

Think of non-economic damages as awards for pain and suffering, as they can be tied to how at fault a jury believes the negligent party to be. When conservatives complain about “runaway jury verdicts” they’re usually talking about non-economic damages. Conservatives hate them because they can’t be specifically tallied and ordered up (and therefore limited) in a neat and tidy fashion the way economic damages can. Lost wages? Check. Hospital bills? Check.

But a non-economic damages cap means those who do not earn significant incomes (think the elderly, hourly-wage workers, and stay-at-home parents) are at a distinct disadvantage under Texas tort reform since their economic damages are usually much less. This acts as a significant deterrent to bringing a malpractice claim to begin with, because in order to prove their case, a plaintiff is usually going to need at least one medical expert to explain both what went wrong and what should have gone right. Those experts are expensive and non-economic damage awards help defray those costs. It’s entirely reasonable that in a medical malpractice claim involving a significant injury, expert fees alone would approach $250,000.

To make imatters even worse, this non-economic damages cap is not indexed to inflation, which means that it is effectively worth less and less each year. So even the most obvious cases of medical malpractice may not get pursued because the expense of bringing a lawsuit is simply too much.

HB 4 doesn’t just take away the economic means for many injured Texans to find justice, it takes away important legal means as well. Instead of keeping medical malpractice claims under a negligence standard for doctors and hospitals alike, HB 4 effectively immunizes hospitals by requiring plaintiffs to prove that the hospital acted with an intent to harm patients. That means the only way hospitals have to compensate victims harmed by their doctors and staff is if the injured person can show the hospital essentially wanted the injury to happen.

This impossible standard, the plaintiffs claim, deprives them of due process and their right to access the courts, since it effectively took away their well-recognized common law negligence claim against the hospital. That means there is no real way under Texas law to hold hospitals accountable when they make bad credentialing decisions.

But Greg Abbott disagrees that immunizing hospitals like this has taken away any patient rights, and he wants to defend the law in federal court—even though, legally speaking, he doesn’t have to.

“The state has no obligation to defend this law,” said James Girards, a Dallas lawyer who filed one of the lawsuits.

“State statutes get challenged all the time, and the attorney general has discretion which lawsuits to join and which to ignore,” he said. “But instead, Abbott is pandering to big money donors like Baylor and the insurance industry and protecting their interests.”

Analysis Law and Policy

‘Whole Woman’s Health’ Breathes New Life Into Voting Rights Cases

Imani Gandy

It is no longer acceptable—at least in theory—for state legislators to announce that a particular restriction advances an interest in women’s health and to expect courts and the public to take them at their word. The same goes for, as it turns out, voting rights.

It has been a good summer for reproductive rights advocates. A little over a month ago, the U.S. Supreme Court in Whole Woman’s Health v. Hellerstedt struck down two burdensome restrictions in a Texas omnibus anti-abortion law. The Court’s opinion was so data and fact-driven, it signaled to reproductive rights advocates that science and evidence had finally made a comeback in the courts, especially when it comes to laws that burden constitutional rights.

It is no longer acceptable—at least in theory—for state legislators to announce that a particular restriction advances an interest in women’s health and to expect courts and the public to take them at their word.

The same goes for, as it turns out, voting rights.

Conservative legislators across the country have been complaining about voter fraud for years. As soon as the U.S. Supreme Court gutted the Voting Rights Act in Shelby County v. Holder in 2013, states like Texas and North Carolina rushed to enact and implement legislation requiring voter identification, which disproportionately disenfranchised Black and Latino voters. And even though no state has been able to offer proof of any in-person voter fraud crisis—because no such crisis exists—that hasn’t stopped states from continuing to pass laws aimed at slaying the phantom voter fraud demons.

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But there has been a palpable momentum shift in the GOP’s war on voting: Voting rights advocates seem to be winning, with a little help from Whole Woman’s Health.

It may surprise you that Whole Woman’s Health has popped up in cases involving voter ID laws. But since Whole Woman’s Health’s victory in June, four states have seen their voter ID laws either weakened or eliminated entirely. Two of the decisions in those cases, Wisconsin’s and Texas’, specifically reference Whole Woman’s Health.

First, in Wisconsin, a district court judge cited Whole Woman’s Health in a decision weakening that state’s voter ID law. There, District Court Judge Lynn Adelman ruled that voters who were unable to obtain voter ID could still vote by signing an affidavit as to their identity. Wisconsin protested that the court’s affidavit fail-safe provision would undermine the integrity of Wisconsin’s elections, but offered no proof to back up its claim.

“The Supreme Court recently reiterated that where a state law burdens a constitutional right, the state must produce evidence supporting its claim that the burden is necessary to further the state’s claimed interests,” Adelman wrote, citing Whole Woman’s Health. Evidence. Not just baseless, transparently false claims about a law’s purpose, but evidence.

And in Texas, two Fifth Circuit Court of Appeals judges cited Whole Woman’s Health in a concurring opinion invalidating Texas’ voter ID law. Amazingly, even a full panel of the ultra-conservative Fifth Circuit Court of Appeals ruled that Texas’s voter ID law disproportionately burdened Black and Latino voters, and therefore violated the Voting Rights Act.

In a concurring opinion, Judge Stephen Higginson acknowledged that combating voter fraud and promoting voter confidence were legitimate state interests, but, he said, again citing Whole Woman’s Health, simply asserting those interests doesn’t immunize a voter ID law from all challenges.

“[A]s the Supreme Court recently reminded [us], that a state interest is legitimate does not necessarily mean courts should ignore evidence of whether a specific law advances that interest or imposes needless burdens,” he wrote for himself and Judge Gregg Costa.

The message from Wisconsin and Texas is clear: If a state is going to claim that a particular law is going to fix a particular problem, that state needs to prove it. Courts will not rubber-stamp laws that needlessly burden constitutional rights without actually doing anything to fix the problem they were supposedly enacted to fix. And that’s a noticeable shift stemming from Whole Woman’s Health.

Other crucial voting rights victories this month have, as Stephen Colbert might put it, a Whole Woman’s Healthiness about them.

In North Carolina, while Whole Woman’s Health was not featured in the the Circuit Court of Appeals’ defenestration of that state’s sweeping election law, you can certainly feel its presence.

North Carolina passed its sweeping law after requesting data that showed which voting mechanisms Black people used the most, and then eliminating those mechanisms. For example, the racial data the legislature received showed that Black voters disproportionately used early voting in 2008 and 2012. So, North Carolina eliminated the first week of early voting, shortening the total early voting period from 17 to ten days.

The Fourth Circuit ripped North Carolina to shreds for it.

“Although the new provisions target African Americans with almost surgical precision,” Circuit Judge Diana Gribbon Motz wrote for a unanimous court, “they constitute inapt remedies for the problems assertedly justifying them and, in fact, impose cures for problems that did not exist.”

In other words, North Carolina’s voter ID provision was about as useful at combating voter fraud and promoting voter confidence as the admitting privileges and ambulatory surgical center provisions in Texas’ HB 2 were at promoting women’s health and safety: that is to say, not very useful at all.

In Michigan, District Court Judge Gershwin A. Drain expressed skepticism at Michigan Republicans’ rationale for banning straight-party voting. Michigan claimed that the prohibition would help “preserve the purity of elections,” and “guard against abuses of the elective franchise.” The state also argued that the law would demand that voters be more knowledgeable about candidates and would encourage voters to make selections based on criteria other than party affiliation.

But Michigan didn’t submit any evidence to prove its claims, and Judge Drain wasn’t buying it.

“Michigan has not demonstrated how straight-party voting has damaged, or could possibly damage, the ‘purity’ of the election process,” District Court Judge Gershwin A. Drain wrote. “There is nothing ‘impure’ or ‘disengaged’ about choosing to vote for every candidate affiliated with, for example, the Republican Party,” Drain continued.

“Moreover, the idea that voting one’s party reflects ignorance or disengagement is, ironically, disconnected from reality,” he continued. “Even if ‘disengaged’ voting was problematic—and it is not—the Court finds that [the law] does nothing to encourage voters to be any more ‘engaged.’”

In North Dakota, plaintiffs challenged a law that required voters to present certain forms of voter ID and that did not have a “fail safe” provision which would enable a person who did not have the required voter ID to vote, which had existed before the law’s implementation in 2013. Plaintiffs claimed that the law severely burdened the Native American population in North Dakota, and submitted affidavits, studies, surveys, and other data in order to prove it. In response, North Dakota submitted nothing—not a shred of evidence that would back up its claim that the voter ID law was necessary to combat voter fraud.

Nothing wasn’t enough for Judge Daniel L. Hovland, who blocked the law.

“The undisputed evidence before the Court reveals that overcoming these obstacles can be difficult, particularly for an impoverished Native American,” he wrote.

Recognizing North Dakota had a valid interest in preventing voter fraud and promoting voter confidence, Hovland ruled that “those interests would not be undermined by allowing Native American voters, or any other voters who cannot obtain an ID, to present an affidavit or declaration in lieu of one of the four forms of permissible voter IDs.”

“No eligible voter, regardless of their station in life, should be denied the opportunity to vote,” Hovland said.

The losses suffered by Republican-dominated legislatures in Wisconsin, North Carolina, Michigan, and North Dakota, combined with federal court decisions striking down other voter restrictions in Kansas and Ohio (both decisions pre-date Whole Woman’s Health but certainly fit into a post-Whole Woman’s Health zeitgeist) suggests that judges are, as Mark Joseph Stern put it in Slate, “fed up with being treated like dolts by Republican legislators who lie through their teeth about the intent of draconian voting restrictions.”

Whole Woman’s Health has provided those irritated judges extra ammunition to shoot down unnecessary voter ID laws.

In a post-Whole Woman’s Health world, courts do not have to simply accept whatever lies a legislature decides to tell as “legislative fact.” If when a legislature says “to promote women’s health and safety,” it is nevertheless apparent that it means “to reduce abortion access,” then that law will not, as Justice Ruth Bader Ginsburg put it in her two-paragraph Whole Woman’s Health concurrence, survive judicial inspection.

The same can be said of voting rights. Courts do not have to accept “to preserve the integrity of elections” as an explanation when the obvious goal is “to keep people of color from voting.”

States can still say anything. But now, it’s more likely that they’ll have to prove it.

News Law and Policy

Texas’ ‘Fetal Remains’ Rule Could Draw Legal Action

Teddy Wilson

The Center for Reproductive Rights cited statements made by Gov. Greg Abbott (R) soliciting campaign contributions to support his efforts to “establish higher standards that reflect our respect for the sanctity of life.”

Proposed rules requiring cremation or burial of fetal remains may result in “costly litigation for Texas—litigation state taxpayers can scarcely afford,” the Center for Reproductive Rights (CRR) said in comments submitted to the Texas Department of State Health Services (DSHS).

Stephanie Toti, senior counsel at CRR, said in a statement that if Texas lawmakers continue to interfere with reproductive health care, the organization will take legal action. 

The DSHS quietly proposed new rules that would prohibit abortion providers from disposing of fetal remains in sanitary landfills, and would require that fetal remains be buried or cremated. 

The rules were published July 1 without notice or announcement in the Texas Register.

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The new regulations would apply to all fetal remains regardless of the period of gestation. Under the proposed rules, any other tissue, “including placenta, umbilical cord and gestational sac,” could still be disposed of through “grinding and discharging to a sanitary sewer system; incineration followed by deposition of the residue in a sanitary landfill.”

Health commission spokesperson Bryan Black told the Texas Tribune that the rules were developed to ensure high sanitation standards. “The Health and Human Services Commission developed new rules to ensure Texas law maintains the highest standards of human dignity,” Black said. 

The rules would require approval from the Republican-held state legislature.

Gov. Greg Abbott’s (R) spokesperson Ciara Matthews said in a statement that the governor is hopeful the legislature will approve the rules. “Governor Abbott believes human and fetal remains should not be treated like medical waste, and the proposed rule changes affirms the value and dignity of all life,” Matthews aid.

CRR cited statements made by Abbott in a fundraising email in which the governor solicited campaign contributions to support his efforts to “establish higher standards that reflect our respect for the sanctity of life.”  

CRR contends that Abbott’s statements undercut “the state’s claims that these regulations have anything to do with protecting women’s health and safety.”

Blake Rocap, legislative counsel for NARAL Pro-Choice Texas, told Public News Service that the regulations will increase the cost of abortion care and the amount of people involved in the process.

“The rule creates ambiguity and involves other licensed professionals, like funeral service directors and cemeteries that are not involved in medical care, and shouldn’t be involved, and don’t want to be involved in it,” Rocap said.

Carol Everett, an anti-choice activist and supporter of the proposed rules, made dubious claims that methods of disposal of fetal remains could contaminate the water supply.

“There’s several health concerns. What if the woman had HIV? What if she had a sexually transmitted disease? What if those germs went through and got into our water supply,” Everett told the Austin Fox News affiliate

The transmission of HIV or other sexually transmitted infections through water systems or similar means is not supported by any scientific evidence.

The new rules could have unintended consequences for medication abortion care. The proposed rules state that “products of spontaneous or induced human abortion” are subject to the law “regardless of the period of gestation.”

Under Food and Drug Administration regulations, the second part of the medication abortion regime can be taken at home. The new Texas rules could effectively ban medication abortion because an embryo miscarried at home through medication abortion cannot in practice be buried or cremated.

The Texas Alliance for Life supports the new GOP-backed rules. However, Texas Alliance for Life executive director Joe Pojman told Rewire that he was unsure what effect the new rules might have on medication abortions. “We’re going to have to study that further,” Pojman said.

Rocap told Public News Service that proposed rules are part of a “pattern of overreach” by Texas lawmakers targeting abortion providers. “This rule was proposed in the dark of night without any openness, which lets you know that they know they’re doing it the wrong way.”  

DSHS has announced a public hearing on the proposed regulations Thursday at 9 a.m. central time.  

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