I'm looking for opinions and advice on the following situation:
A surgeon performs an operation on a very elderly man. Following the surgery, which was some sort of sinus operation, the patient continues to have bleeding for several weeks, is seen a number of times for follow up, and eventually CT'd, which indicates a fracture to his skull. The CT also shows air and bleeding in the brain and the patient dies about a month after the surgery as an apparent result.
Over the course of the next two years, patient's family sues the doctor, whose insurance company eventually pays a settlement.
The plaintiff's lawyer now shows up in the DA's office and presents us his case file for prosecution as a criminally negligent homicide. According to his expert witnesses, the surgery was grossly deviant from the normal standard of care, the surgery was unnecessary and too dangerous in the first place, and the procedures the doctor claims to have done should have taken 3 hours instead of the 30 minutes that he was documented to be in the OR. He also says that a reasonable value to place on the life of a 93-year-old man is $50,000, but the insurer settled for $350,000 without even putting up any kind of a fight (i.e., no competing depos from experts on doctor's side).
Our office is fairly small and no one has any expertise in these types of cases. No investigation was ever conducted or requested by any law enforcement or government agency that I am aware of. Add to that that the attorney involved would love to see the DA take it on the chin in the next election, and we have our concerns about his motives for presenting the case to us in the way he did. At the same time, we don't want to see a doctor who may be endangering people escape consequences.
Any advice, comments or referrals would be appreciated.
Get two experts ASAP: a good forensic pathologist and a surgeon specializing in the type of operation in question, preferably from a medical school and with a strong CV. Get them all medical records and get them together. Make sure they understand the difference between civil negligence and criminal negligence. Wait for written reports. Good luck.
Appoint the smart-aleck special prosecutor for the case.
Ooo - I would love to tell him to put his money where his mouth is...he loves to talk about what an expert he is in these types of cases (compared to prosecutors, of course, who wouldn't know a closed head injury if it walked up and bit 'em). I'm afriad, however, his agenda may be to make sure that the DA is in the position of either "passing the buck" or refusing to prosecute, either of which he will use as ammo in the next election.
Isn't there a Medical Board to whom these things can be referred for professional discipline? If they get it and find nothing wrong, then it seems the local prosecutor would be understandably excused from taking things further ...
Frankly, Bud is one of the best prosecutors that I have ever worked for. His advice is the most sound strategy in this matter. Once you have expert opinions that YOU can rely on (not some plaintiff vs. defense expert), then you can make an intelligent decision. It may be that it has to be presented to the Grand Jury for a decision, but that is best done with all your information in place.
This is what I'm looking for. Is there such a medical board? Do they actually investigate these things or simply take complaints? Would they have already made some decision about this?
I recall reading some articles in the not-too-distant past about them catching heat from the Legislature for not acting swiftly enough on some of these cases, so maybe they've got their act together now ...
Bud offers some good advice. You may want to contact Southwest Forensics in Dallas and talk to Dr. Barnard 214-920-5900. Depending on the budget that you have for experts, you may want to give Dr. Linda Norton a call. If after review further investigation is needed, give me a call. 254-933-5215.
You also may want to check in with the Fort Worth DA's office, perhaps David Montague. I seem to recall that they tried a bad-acting dentist once. And check with Bill Turner on Bryan; he tried a bad-acting nurse....
That's the name of the dentist (Steve Martin's character) from Little Shop of Horrors. Our FW case was Davis v. State, 955 SW2d 340 (FW 1997, pdrr) -- involuntary manslaughter -- D was an oral surgeon with a penchant for administering plenty of Versed.
El Paso Times Summary
The Texas Board of Medical Examiners took the following actions during fiscal year that ended Aug. 31:
Investigations opened: 1,900
Temporary suspensions: 8
Temporary restrictions: 2
License revocations and surrenders: 33
Public reprimands: 29
Administrative penalties: 61
Total administrative penalties: $434,500
Total disciplinary decisions: 256
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