The criminal conviction of Christopher Duntsch, MD, PhD, holds important lessons for risk managers. His case is receiving renewed attention in the media.

• Duntsch is the first physician sentenced to life in prison for his actions while practicing medicine.

• The case highlights the risks of allowing a troubled physician to move to another hospital without reporting concerns.

• Critics say hospitals should be required to report physician performance issues to the National Practitioner Data Bank.

The extraordinary case of a neurosurgeon who was so poorly vetted by hospitals that he critically injured dozens of patients and was blamed for two deaths in a short time is receiving renewed attention in true crime podcasts and an upcoming TV series. Risk managers should take the opportunity to learn how to avoid a repeat of the tragic series of events.

Christopher Duntsch, MD, PhD, practiced medicine in Dallas for two years and operated on 37 patients. Thirty-three were injured, and some of the complications were almost unheard of for that type of procedure, explains Michael P. Lyons, JD, founding partner of Lyons & Simmons in Dallas. Lyons represented one of the injured patients.

At least two hospitals quietly ended Duntsch’s privileges but did not report him to the National Practitioner Data Bank (NPDB), Lyons says.

Duntsch’s string of failures came to the attention of local authorities, mostly through the efforts of plaintiffs’ attorneys and other concerned physicians. He was charged with five counts of aggravated assault with a deadly weapon — his surgical tools — and one count of injury to an elderly individual. After his July 2015 arrest, the media dubbed him “Dr. Death.”

The trial included extensive testimony and other evidence about Duntsch’s incompetence as a neurosurgeon, with expert witnesses testifying that his performance failures were so extreme as to go beyond mere errors and indicate someone who was not qualified to perform surgery at all.

One surgeon was so bothered by what he saw that he took Duntsch’s surgical tools from him in the middle of an operation. Duntsch did not appear to even understand regional anatomy, Lyons says. Some fellow surgeons worried that he was a complete imposter, not a doctor at all.

Eventually, Duntsch’s medical license was revoked. Duntsch was convicted of the criminal count of injury to an elderly individual and became the first doctor in the United States to be sentenced to life in prison for his practice of medicine. He is currently imprisoned in Huntsville, TX, and will be eligible for parole in 2045 at age 74 years.

Many Fooled by Credentials

Duntsch seemed to possess impressive credentials when the first hospital privileged him in Dallas, Lyons explains. He came from a top spinal surgery fellowship program, recorded high scores on Healthgrades, and showed a sophisticated online presence.

Although Duntsch is responsible for misleading hospitals and his patients, fundamental failures of the vetting process and reporting concerns about his performance occurred.

“There are systemic failures here. There need to be laws in place that require reporting to the National Practitioner Data Bank, laws with some teeth in them. It’s not enough to say ‘We have an obligation and need to police ourselves,’” Lyons says. “There needs to be ramifications when people fail to do that. Otherwise, you could talk about Duntsch or any other case, and if there is no requirement to report and there’s a penalty for failure to do so, who’s going to do it?”

Hospitals avoid reporting because they do not want to get drawn into a legal squabble over removing a physician’s credentials and making a report to the NPDB, Lyons says, so they find an easier way to make the problem go away. That usually involves an agreement between the hospital and physician to part ways with no report and no fuss. The Duntsch case shows the danger of that approach.

“There should be a qualified privilege that protects them in that decision but also a hammer that hits them if they fail to report. As a minimum, it ought to count against them in any audit or rating as a healthcare institution,” Lyons says. “As it is right now, there is essentially no way to hold someone responsible for negligent credentialing.”

Guilt by Association

Lyons notes remedying the problem would be good for hospitals because no matter the ultimate liability decided in any particular case, the healthcare institution will suffer from association. That is true especially if someone alleges the hospital passed off a bad doctor to another facility without reporting to the NPDB or otherwise making concerns known.

“Nobody wants to deal with this situation. I have no doubt that every hospital involved with this case suffered negative effects from having their name dragged out every time somebody talked about ‘Dr. Death,’” Lyons says. “The hospital can find itself in a tough position. Are you more concerned about their reputation and the potential fallout from having a rogue physician, or are you more concerned about some lawyer filing a lawsuit claiming you disparaged or tortiously interfered with a physician’s ability to move on to the next healthcare institution?”

Much of that is clearer in retrospect, Lyons acknowledges. The first hospitals involved in the Duntsch case had no way to know how bad his case would get, but that is why reports to the NPDB should be routine.

“Often what happens is Hospital A says, ‘We would like you to leave. We’re not going to revoke your privileges but if you stay, we will,’” Lyons explains.

Then, the physician moves on to Hospital B, and their credentialing committee calls Hospital A to inquire about the physician’s history and status at the time of departure. Hospital A reports accurately the physician’s credentials were never revoked.

“The frustrating thing is that all of that is privileged. The public can’t see it, and plaintiffs’ attorneys can’t use it,” Lyons laments. “The physicians are protected in that they can move from one institution to another, but the public is not protected, and the physician can still sue the hospital for reporting the truth.”

Letter Shows the Process

The only reason the credentialing process and the communications between hospitals came to light is because Duntsch gave a letter to a news reporter, Lyons notes. After his performance was questioned at the first hospital, including a suspension for investigation of drug abuse, Duntsch requested a letter when he left.

Lyons says it is clear the hospital wanted him to leave, and the letter was part of their agreed peaceable parting of ways. It is unclear why Duntsch publicized the letter, but Lyons says Duntsch likely thought it worked in his favor and did not realize it would expose the way hospitals pass troubled physicians from one facility to another.

“Also, he’s just delusional,” Lyons adds.

The letter addressed to Duntsch stated: “All investigations with respect to any areas of concern regarding Christopher Duntsch, MD, have been closed ... As of this date, there have been no summary or administrative restrictions or suspensions of Dr. Duntsch’s medical staff membership or clinical privileges during the time he has practiced” at the hospital.

The letter was signed by the director of medical staff services. Duntsch used the letter to obtain privileges at two other hospitals, Lyons says.

Surgeon Blames Greed

One of the key experts testifying in the Duntsch trial was Martin L. Lazar, MD, FACS, a neurosurgeon in Dallas. He says the root cause of the scandal was greed. Neurosurgeons generate a great deal of revenue for hospitals, he notes.

“The hospital administrator at [the first hospital], in my opinion, was guilty of profound greed,” Lazar says. “She had neurosurgeons on staff from private practice, but that wasn’t enough for her. She wanted to increase their revenue, but in Texas hospitals are not allowed to employ physicians. They worked out a method in which the neurosurgeons are employed by a separate group, but the hospital has great influence.”

It was a workaround that all the major hospitals in Texas still use, Lazar says. It is a “front organization that is legal, but one wonders about the ethical manifestations,” he says.

The underlying issue, in addition to the desire for more revenue, was inadequate vetting by the first hospital. “The hospital never did a really proper investigation of Duntsch. They were so eager to get him on staff that they never really looked at his record as a resident and so-called fellow,” Lazar says. “For example, Duntsch reported he had participated in something like 76 cases. There is no neurosurgical resident who can do less than several thousand operations. Right from the beginning, there was a red flag, but they never investigated it.”

Lazar points out that when Duntsch left the first hospital and used the letter to obtain privileges at other hospitals, one hospital administrator in Dallas held him to a higher standard. She was an administrator in charge of credentialing.

“She was the heroine in this case because she noticed that Duntsch was not providing adequate information. He would call and threaten her, but she didn’t blink,” Lazar says. “She told him that if he did not provide adequate information, his application would not go forward. In this case, an administrative individual acted ethically, morally, responsibly.”

Duntsch did not receive privileges at that hospital. Lazar says many crippling injuries to Duntsch’s patients could have been avoided if other hospital leaders had acted responsibly.

“Duntsch was the perfect storm of failures at every level in the healthcare system,” Lazar says. “He was allowed to complete a training program when the people who trained him knew he was probably inadequate as a surgeon and had not done enough cases.”

The trial revealed a conflict of interest involving Duntsch’s mentors, Lazar notes. Duntsch researched the development of a method for growing spinal intervertebral disc material. Two people who trained Duntsch invested in his business. Those physicians vouched for him even though they had a financial interest in his surgical career.

“In my opinion, that was pure, unadulterated greed. They also were afraid to fire him from the program because they knew he would sue them,” Lazar says. “They packed him up and sent him off to Dallas, and when he gets to Dallas they vouch for him on his application for staff privileges without explaining — because they were never asked — the details of his training. What kind of vetting procedure at a hospital, for a new physician, does not vet their training program?”

Particularly in neurosurgery, it is important to confirm the technical competence of the surgeon. The potential for life-threatening or life-changing complications is so great in the specialty that hospitals must exhaust all options for confirming the competency of a surgeon before granting privileges.

“They let him on staff, he killed and crippled, they found out that he was a drug abuser, and they did not adequately investigate his drug abuse,” Lazar says. “They gave him back his surgical privileges, and of course he continued to cripple. Finally, they told him they were going to terminate him. They ended up giving him the letter, he didn’t sue them, and he went to other hospitals.”

Those other hospitals were eager to hire a neurosurgeon who could bring in great revenue. They did not adequately vet Duntsch, and he continued to cripple and kill patients, Lazar says.

“He was stopped because several physicians and a couple plaintiffs’ attorneys repetitively got after the Texas Medical Board. I was the expert for the Texas Medical Board and insisted that they withdraw his license,” Lazar says. “I had been doing that for a year and a half before they finally did it, and there were other physicians pushing for it before they finally revoked his license.”

Unfortunately, Lazar says he does not see the medical community learning from the Duntsch case. Hospital leaders and their legal representatives still lean heavily on avoiding any risk of legal action from physicians who are terminated or reported to the NPDB. Lazar strongly favors making reports to the NPDB mandatory.

“The method by which hospitals dispatch unwanted physicians is unchanged. Hospitals don’t want to get sued by a physician who’s being threatened with termination, so they have this escape mechanism to avoid lawsuits,” Lazar says. “The escape mechanism is saying ‘If you leave voluntarily, we will give you a letter saying nothing happened.’”