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.

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.

Doctor via Shutterstock

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medicine and performed “minimally invasive” procedures in North Texas hospitals for two years before his license was revoked in 2013, at which time he’d left two patients dead and four paralyzed.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.”