A medical malpractice lawsuit claims the University of Texas at Tyler Health Science Center (UT Tyler) fraudulently hires physicians as medical school professors to protect them from malpractice litigation.
The lawsuit claims Ruben Garcia, M.D., failed to share a cancer diagnosis with patient Michael Simington, aged 67, for a year and a half, costing Simington eight to 10 years of his life, the Texas Tribune reported on February 23. Under Texas law, Garcia is immune from malpractice lawsuits because he is employed by a public university, though he works in a clinic owned and operated by private equity investors.
UT Health East Texas is a for-profit health practice formed as a partnership with UT Tyler in a deal funded by Ardent Health Services, the fourth largest private hospital operator in the United States, according to Becker’s Hospital Review.
Simington is deceased. His children could sue the physician’s employer, but for a significantly smaller settlement than a typical medical malpractice lawsuit, under state statutes.
‘What Happens Is Mind-Boggling’
Quentin Brogdon, a personal injury trial attorney at Crain Brogdon, LLP, in Dallas, Texas, and a former president of the Texas Trial Lawyers Association says he is seeing more and more of these arrangements in medical malpractice cases.
“Most of my clients don’t think about who employs their doctor until something goes off the rails, then it really matters,” Brogdon said. “It certainly seems these arrangements are being set up for the express purpose of inoculating doctors from being held accountable for malpractice.”
Though the intent of the statute was to protect governmental agencies and their employees, there is often a for-profit company in the mix, exploiting a loophole to obtain protections not intended by the statute, says Brogdon.
“The sheer arbitrariness of what happens is mind-boggling,” said Brogdon.
“If two doctors commit the same malpractice, and one is employed by a private health care provider, that doctor can be held liable for the malpractice,” said Brogdon. “But if the other doctor is the beneficiary of one of these arrangements with a governmental entity, that doctor can’t be held liable for the malpractice. Of course, the patient invariably has no understanding of this arbitrary distinction when the patient seeks out medical care from a doctor.”
Doctors Not Working for Patients
Obviously, there is no equality under the law, says Jane Orient, M.D., executive director of the Association of American Physicians and Surgeons. “Huge entities with deep pockets, with vast control over how medicine is practiced, have little to no accountability, while individual physicians can be ruined by a single lawsuit,” said Orient.
Patients need to understand that their doctor is not working for them and is responsible to the entity writing his paycheck, says Orient. “Private entities and universities do not care about patients—who are just cost or profit centers. Evidently, the doctor in the lawsuit didn’t care either, making no effort to follow up with the patient.
“Patients and their families need to find an independent doctor if they can, and they need to be vigilant,” said Orient. “The corporate practice of medicine used to be recognized as unethical—and it still is.”
‘They Sold Their Immunity’
The question is not whether the arrangement is an artifice to avoid malpractice insurance and litigation costs for physicians who are claiming immunity, but whether a state court judge will call a foul on an unacceptable arrangement, says John Dale Dunn, M.D., J.D., a physician, and policy advisor to The Heartland Institute, which publishes Health Care News.
“You can call the arrangement a fraud, but it is nothing more than an arrangement to create a Texas Tort Claims Act immunity for an entity that is privately owned, but a partner with a state entity,” said Dunn.
“The cost and attractiveness of the for-profit private/non-profit state cooperation is not hard to assess; it involves millions of dollars, short- and long-term,” said Dunn. “The state sold a valuable thing to the buyer, Ardent—they sold their immunity. …The question is, does the arrangement violate public policy if it impairs injured party malpractice lawsuits?”
‘Judges Work for the State’
Should a private entity benefit from the acquired immunity because it creates an association with a state entity that can provide immunity? The question goes back to the reasons a state entity is given immunity.
Dunn says immunity can reduce operating costs for state institutions, but should not be extended to private entities for a price.
“I bet the court will allow the state to sell its immunity or put up its immunity as a valuable interest to be considered in the financial arrangements of the sale,” said Dunn. “One reason I believe this is that judges work for the state. They have state interests as a real factor in such situations.”
“My conclusion is that the immunity creates a saleable valuable commodity for the private entity, state affiliation, but the state has sold its immunity value knowing that was a value added to encourage the private investment,” said Dunn. “All things and real politics considered, I bet the state court judge comes down on the side of immunity.”
Kenneth Artz (KApublishing@gmx.com) writes from Tyler, Texas.
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