Proposition 12

The Chron finishes off a four-part look at Proposition 12, which would encode a cap on non-economic damages in medical malpractice cases in the state Constitution. Part one looks at the players involved, part two examines the case against Prop 12, part three looks at the case for, and part four looks at the insurance companies themselves.

The second article covers something that I think is under-discussed in these debates. I’ll quote from the article to get the context.

Orthopedic surgeon Dr. Merrimon Baker once left a surgical sponge inside a patient’s body. In another case, the Cleveland, Texas, physician operated on the left leg instead of the right. In another, he operated on the wrong hip.

He lost privileges to perform surgery at two hospitals. Later, in court, his ex-wife testified that she divorced him because of his addiction to prescription painkillers. In 2000, a jury found Baker partially responsible for botching a routine back operation and leaving a 42-year-old man with severe brain damage.

“I’m happy to know that hopefully something will change,” that patient’s wife, Dolores Romero, said after winning a $40.6 million verdict in a medical malpractice lawsuit, “and other people will not have to go through this.”

But in regard to Baker’s practice, little has changed. The 46-year-old doctor still sees patients in his Cleveland office and performs surgery at Houston Community Hospital on Little York. Baker did not return phone calls for this story.

[…]

“I can neither confirm nor deny we still have (Baker) under investigation,” said Dr. Donald Patrick, executive director of the Texas State Board of Medical Examiners, the agency that oversees and licenses physicians. “But you never know what the future is going to hold, is about the strongest I can say. Anything that’s still under investigation is a matter of confidentiality. Believe me, I’d like to tell you the whole story.”

In 1998, Ricardo Romero of Humble decided to undergo back surgery. Romero, a 20-year employee of Houston Marine Services, had injured his back while moving a heavy hose. After 12 months of medication and therapy the problem wasn’t better, so he opted for an operation.

He saw Baker’s advertisement in the Yellow Pages and liked the fact that Baker was conveniently located at Columbia Kingwood Medical Center. When Romero met Baker, “He seemed pretty nice. He seemed to be knowing what he talked about.”

On July 15, 1998, Dolores Romero kissed her husband goodbye before he was wheeled back for what she understood was an uncomplicated operation. Hours passed without word of her husband’s progress. When Dolores Romero pressed hospital employees for news, they told her they didn’t know anything.

What she later learned was that her husband had lost nearly all of the blood in his body during the operation. Blood for a transfusion was late in coming, and in the meantime his heart stopped beating. His brain, deprived of blood and oxygen, was severely and irreversibly damaged.

In the malpractice lawsuit that followed, Dolores Romero gained a wealth of information about Baker that would have helped her avoid the doctor.

The Romeros’ attorney, Richard Mithoff, ticked off a laundry list of malpractice allegations against Baker — 12 separate incidents between 1988 and 1998. One 1994 case involved an unnecessary ankle surgery, lawyers said, which led to an infection and ultimately the amputation of the patient’s foot.

[…]

Today, the information about Baker unearthed by Mithoff’s staff sits in four cardboard boxes in a Harris County storage facility, where it remains too difficult to access, or interpret, to be of any practical use for consumers. Online county court records list malpractice suits against Baker, but without enough detail for customers to draw conclusions.

The National Practitioner Data Bank lists malpractice payments made by doctors, as reported by insurance companies, but this information is shared only with hospitals and state medical licensing boards — not with the general public.

One of the keys to a successful free market, as I’ve always understood it, is unfettered access to full information. If I have no way of knowing that someone is selling widgets across town for one dollar each, I may wind up buying them at my neighborhood store for two dollars each. Or I may not buy them at all because I can’t afford them. This is an inefficiency in the market, one that would be solved if full information about widgets had been available to me.

As we see with the story of Dr. Baker, propsective customers have no good way to get the information they need to make their choice. How many patients do you think he would have if his record were easily available? Surely if Ricardo Romero had known, he would have chosen a different doctor for his surgery, and that $40 million jury verdict never would have happened.

I understand that there are privacy issues, and I understand that there are always problems with centralized databases of this sort, but I also understand that the cost of doing nothing is that the Dr. Bakers of the world will continue to practice medicine on an uninformed public. Everybody – patients, competent doctors, insurance companies – loses in that case. Yet here we are, pursuing new government regulation instead of looking for a way to make the free market more efficient. Aren’t Republicans supposed to favor that sort of thing?

It’s interesting to note, by the way, that one of the organizations against Prop 12 (PDF) is the Texas Eagle Forum. I can’t wait for someone to explain to me why their opposition doesn’t matter because they’re not really conservative.

There’s been a lot of good blogging on the subject of tort reform and medical malpractice insurance. Check out The Bloviator on one doctor’s Road to Damascus moment, Something’s Got To Break for his examination of Prop 12, and of course PLA, which is your one stop shop for tort reform analysis.

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