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Does Texas medical malpractice “reform” attract bad doctors?


Texas has always been a state the identifies with outlaws and cowboys. Well in 2011 that reputation has taken an ugly turn.

Texas has passed laws that make it nearly impossible to sue doctors and hospitals. The common sense result of laws that protect doctors from being accountable when they negligently hurt a patient, is that doctors will want to work in Texas because they don’t have to worry about being incompetent. Accountability is one of the basic concepts of being a responsible adult. In Texas, they have said that this concept does not apply to doctors and hospitals. Well here is a story about what happens when a state passes tort reform laws.

An MSNBC report describes a doctor who couldn’t work in Minnesota so he went to Texas where his negligence would be protected by the Texas tort reform:

CORPUS CHRISTI – A local brain surgeon went on trial Tuesday for allegedly botching a procedure that left a patient severely impaired.

Doctor Stefan Konasiewicz reportedly ran into several legal problems in Minnesota before making his way to Corpus Christi.

Konasiewicz was sanctioned by Minnesota’s medical board for unethical and unprofessional conduct before he came to Texas in 2007, according to the Duluth News Tribune.

He also reportedly had multiple malpractice suits, some involving patient deaths, before coming to Texas.

The doctors and their insurance companies push these drastic measures in Hawaii every year. I hope that Calvin Say, Clayton Hee, Josh Green, M.D. and other legislative leaders in the Islands will look at Texas and realize what happens when you remove accountability from any person in the state. Will Governor Abercrombie stand up to the insurance industry and doctors who want to be given a pass when they injure their patient with an avoidable medical error? I hope so.

The doctor had five cases ghat were settled out of court in Minnesota and two of those alleged patient deaths due to avoidable errors by Dr. Konasiewicz. The doctors and their insurance companies insist upon secrecy agreements in settling case, keeping the facts of the negligence from the public eye.

Joanne Doroshow star of the movie HOT COFFEE and Executive Director of the great consumer safety organization The Center for Justice and Democracy (CJ&D), highlights Texas as an example of what is wrong with tort reform in here excellent paper from January 20,2011:


In Texas, the non-economic damages cap has a disproportionate impact on the filing of legitimate cases involving children, the elderly and the poor.15 In a Fall 2008 research paper published in the Texas Advocate, professors Charles Silver of the University of Texas School of Law, David A. Hyman, Professor of Law and Medicine at the University of Illinois College of Law and Bernard S. Black of the Northwestern University School of Law, estimated that “if the same cases were brought, the cap would result in an 18-25% drop in per-case payouts in settled cases, and a 27% drop in tried cases. We also find that a cap on non-economic damages will have different effects on different groups of plaintiffs, with larger effects on the unemployed and deceased, and likely on the elderly as well. … [O]ne would expect the cap to dissuade some plaintiffs from suing at all, especially those in the more severely affected groups. Indeed, “We’re taking one out of 300 cases,” said one attorney. Cases involving medical malpractice in emergency rooms have been knocked out almost completely, making Texas ER’s some of the most dangerous in the country.“’What Texans don’t know is that their Legislature has mandated a very low standard
of care — almost no care,’ says Brant Mittler, a Duke University-educated cardiologist in San Antonio who added malpractice law to his resume in 2001.’” o A June 1, 2009, New Yorker magazine article by Dr. Atul Gawande, called “The Cost Conundrum; What a Texas town can teach us about health care,” explored why the town of McAllen, Texas, “was the country’s most expensive place for health care.” The following exchange took place with a group of doctors and Dr. Gawande: “It’s malpractice,” a family physician who had practiced here for thirty-three years said. “McAllen is legal hell,” the cardiologist agreed. Doctors order unnecessary tests just to protect themselves, he said. Everyone thought the lawyers here were worse than elsewhere. That explanation puzzled me. Several years ago, Texas passed a tough malpractice law that capped pain-and-suffering awards at two hundred and fifty-thousand dollars. Didn’t lawsuits go down? “Practically to zero,” the cardiologist admitted. “Come on,” the general surgeon finally said. “We all know these arguments are bullshit. There is over utilization here, pure and simple.” Doctors, he said, were racking up charges with extra tests, services, and procedures.

Beth Janicek, a leading Texas trial lawyer and safety advocate answers the question posed in the title of my article in a Blog she just wrote: Texas Tort Reform Harms the Public. Ms. Janicek’s answer to the title of my Blog is a resounding "yes"! You have to feel sorry for the citizens of Texas. The elected officials have put profits over people. Hopefully Governor Abercrombie and the Hawaii Legislature won’t be similarly duped or pressured by the rich and powerful. We had only 20 claims against doctors in Hawaii each of the last few years. So there is no need to hurt patients to protect doctors, Now insurance reform could do the doctors some good. High premiums are a shameful example of gouging by the insurance industry.


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  1. Cilla Mitchell says:
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    Does Texas malpractice “reform” attract bad doctors?


    Google Cleveland Mark Mitchell, then click on youtube Cleveland Mark Mitchell December 12 1950 – April 26 2008.

    The patient in the video never received even the basic standard of care, so even if one wanted to sue for malpractice, there was no practice to mal.

    Will be coming out with a blog soon naming the doctor in the video. Let the chips fall where they may.

    Thank you for your time,

    Cilla Mitchell

    A Texas nurse and vet

  2. K Mills says:
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    Why would anyone assume the new tort laws would attract ‘bad’ doctors? Perhaps, the correct response is that Texas’ new laws will attract ‘good’ doctors that do not want the hassle of frivolous law suits. Even frivolous law suits that are won by doctors in states without similar tort reform laws as Texas, take a lot of time, effort, and money. So, why wouldn’t ‘good’ doctors want to leave that behind them?

    I believe it is the State Certification Board for Physicians that has the responsibility of getting rid of ‘bad’ doctors not tort laws.

  3. wayne says:
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    Did you read the story about Dr. Stefan Konasiewicz? Maybe you should ask him? Bad doctors are attracted to places that allow them to injure people and not be held accountable. And why would a good doctor care? Good doctors don’t have claims. The proof of this is well documented. In Hawaii there are less than 20 claims against doctor or hopsitals each year. Doctors complain about claims because they are so afraid of being sued that they don’t care if a lot of patients get hurt, they just don’t want any doctor to ever be sued. That is why 98,000 people die each year from avoidabvle emdical errors. And Texas stands atop the heap telling doctors to come to Texas and no matter what they do to their patients they can still keep raking in the dough. It is moral reprehensible to pass a law creating an elite status for doctors. maybe they will pass a law next to say that doctors are not responsible if they run over someone with their car. After all, doctors are more important than other people. Just remember that these laws like the med mal laws in Texas don’t just apply to a frivolous case. They apply to every case, even the most gross medical negligence by a truly bad doctor or hospital. That is shameful.

  4. Jim O'Hare RPLU AIC IAS says:
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    Nobody is in charge of counting people that die due to med mal. Think about it!!!!. It is a bad guess based on a false premise. Yup – that there is another med mal death, better call the BMMD and report it. Whats the Number?

    Is it possible for people to die without sombody being at fault?

    There are more Doctors in Texas now than before tort reform. That is good and that is true.

    Historically it is 18% of the Doctors that produce nearly 85% of the claims. Put another way- 82% of the doctors produce 15% of the claims. There is always more to the story.

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    Well of course people die without anyone being at fault. My wife died of cancer. She received great medical care and I spread the word about her doctors. But are you so unwilling to blame a doctor for anythiung that you believe that a person cannot die due to the negligence of a doctor or hospital? the facts are well documented by the health profession (Harvard School of Public Health) that 98,000 people die annually through “avoidable” medical errors. Do you understand what “avoidable” means?ewans that a doctor or hospital should have prevented the death …. that they caused the death through errors in treatment. Yes, most doctors never do that to a patient. A few doctors do it all. But Texas laws protect the bad doctors by making it unlikely that they will ever get sued, and history tells us that doctors never admit their mistakes. Your response would be funny if the subject wasn’t so serious.

  6. Jim O'Hare RPLU AIC IAS says:
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    Sorry to hear about your wife, a tough weight to carry. I have adjusted professional liability claims since 1985 and I am well aware of wrongful death matters. I have found very few black and white cases, most are some shade of gray.

    THat Harvard number has been discredited by many, and the fact that it is well documented means what regarding credibility? I’d love to see the formula used. Think it through, it is just a bad guess and not a fact. The fact is that someone wrote it. That is the fact part, not the 98k deaths. Roughly 2000 WD cases in every state and the courts arent clogged up? I recall that Harvard docs also once preferred parliment over marlboro due to a recessed tip.

    Get more nurses to fix the problem, that would be proactive but costs money. Poor communication and fatigue has contributed to just about every case that I have ever touched. Shorter shifts maybe. I am all for getting rid of bad docs. If Texas gets 5 more docs due to tort reform, and 1 is bad, isnt that pretty good?
    Dir of Claims Medicus Ins co Austin Tx

  7. Cilla Mitchell says:
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    How do you suggest nurses fix this problem?

    You put this suggestion out there, can you please provide an example?

    Nurses have been trying to mop after doctors for years with many errors found and corrected by nurses. Guess what! Nobody mops up after a nurse. If a nurse screws up, the buck stops right there. If doctors are too over worked and too busy to see their patients, this is their choice. The buck should stop there, but it doesn’t.

    Thank you,

    Cilla Mitchell

    A Texas nurse and vet

  8. Mark Bello says:
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    Well, Jim. Here is a nurse saying that nurses have to “mop up” for the mistakes of doctors all the time. And she’s not a lawyer who profits from a lawsuit. If it is virtually impossible to sue a “bad” doctor in a particular state, it seems reasonable to me that said state would become a haven for those bad doctors to practice in. You think it was an accident that Konasiewicz chose Texas, after unethical, unprofessional conduct and numerous malpractice suits in Minnesota? If you remove or soften the penalties for misconduct, you encourage misconduct. Simple, no?

  9. Jim O'Hare RPLU AIC IAS says:
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    Dear Cilla / Mark:

    More nurses, shorter shifts and fewer patients to start is a good fix. The archaic hazing of residents doing 72 hr shifts- has got to go. Nurse quantity breeds quality care.

    How many doubles have you done with a dozen patients in your career? Chances of being refreshed the next day is slim. Chances of missing something on patient #11 on that second shift increases. AM I wrong here?

    I married a nurse and I am very fond of the profession. More rested nurses and more mops could mean fewer injuries.

    Re Docs moving to states with beneficial tort reform, Is that the rule or does this Mn doc story fit conveniently? The data bank was engineered to prevent docs from spreading their bad care nationwide. I guess bad docs dont move to states with wide open court systems ! Good docs dont either. Nobody advocates for bad docs, they have to go. It is a minority of the profession.

    Texas WV and Fla used to be hell to name a few. Great improvements came along with quality docs and directly related to tort reform. Lives were saved. Do you really buy the premise that 100k people die due to misadventures each year because a Harvard guy said it?

    Regards Jim
    dir of claims Medicus
    Austin Tx

    Thanks for the debate

    I believe that it is a leap to say he ended up in Texas due to tort reform, so that must be a bad idea. Maybe his inlaws live in Texas. who knows. His career is relatively over due to the publicity

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    Sorry, Jim, but I see the sadness in people’s faces all the time since 2003. I have taken only two medical malpractice cases since then. One was a woman who had a routine colon surgery. The surgeon reconnected the colon to the vagina instead of the rectum. Then he went on a ski trip for a week while she lay in the hospital. She had to have five surgeries plus a colostomy due to his incredible actions. The doctors partners did the repair surgeries, collecting from the victims health insurance for their work. She was only 42 years old. Now she has major deformities and scars on her abdomen (non-economic). She has had incredible pain and anguish (non-economic). Health insurance paid so she had no economic losses on medical. This was gross negligence which should have carried punitive damages (non-economic). All she got was the caps of $250,000. What would a jury have thought of that doctor and what would they have given her for a liftime of misery?

  11. Cilla Mitchell says:
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    More nurses, shorter shifts and fewer patients?

    Jim, when have you got out of your office for some air and a reality check? I always thought people who worked in a managerial position or pushed paper, did not understand the reality of patient care, and the examples you have cited, I rest my case.

    Most shifts nowadays are 12 hours. As for doubles, granted the decision is up to the nurse and most nurses sometimes are pressured to do them because of staff shortage. Yes, Jim, staff shortage, because like most enterprises in this country, it is all about profit, and hospitals cut their staff to a dangerous level in order to, dare I write it, make money.

    Jim, I appreciate your sincere response and hope you take the time to get out of your office and take off your rose colored glasses.

    Thank you,

    Cilla Mitchell

    A Texas nurse and vet

  12. Jim O'Hare RPLU AIC IAS says:
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    Cilla- more nurses, fewer patients and shorter shifts is a solution, a really good one. If you want better care, fewer injuries, there you go. You did not tell me I was wrong , just my glasses were the wrong color.

    I worked in hospitals for 12 yrs. Been there seen it. So have you. Are 72 hr resident shifts a good idea? no. Produce injuries? yes

    Pay the nurses and more of them. You dont have to be a weatherman to know which way the wind blows !
    One bad hospital case pays for 20 more nurses. Pay it up front. We are a reactionary country, never out in front of a problem.

    Bad docs have to go. plain and simple. Tort reform also brings good doctors. Dont know a company that would write a Doc with that history.

  13. Cilla Mitchell says:
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    In a perfect world your solutions would solve many issues. In reality, unfortunately, it does not happen because everything is about the bottom line, profits.

    As you mentioned, one bad hospital case pays for about 20 nurses. I am surprised most institutions do not take this into consideration.

    Bad docs will be eliminated either through the legal system, or through unconventional methods. They will be eliminated.

    Take care,



  14. Mark Bello says:
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    Jim: That’s the point. Hospitals won’t make a commitment to safety and hire the necessary personnel. Too expensive. Potential liability costs would be the only financial incentive to do so. But, when tort reform removes a hospital’s financial incentive to hire additional personnel for safety sake…watch out, patients!

  15. Joe says:
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    The fact of the fact of the matter is that the state medical board should have revoked this doctor’s license with the medical malpractice history he has. If this was the case we would not be having these conversations. Jim is right, eliminate the small amount of the doctors that create the large amount of the problems and you are taking a step in the right direction. If we were talking about any other licensed professional and they had this kind of gross negligence they would have lost their license. Anyway, this guy will be out of the practice any way because he will now be unable to afford medical malpractice insurance. http://www.equotemd.com/