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A Texas appellate court has ruled that there was ample evidence that a doctor at the center of a medical malpractice case abused narcotics, but that didn’t stop it from throwing out a $40 million jury verdict against a hospital that allowed the doctor to operate. The surgery, which was performed at the Columbia Kingwood Medical Center in Houston, left a patient severely brain-damaged. The 14th State Court of Appeals in Houston ruled that the evidence was insufficient to prove the hospital was “consciously indifferent” or malicious about the possibility of the doctor harming patients. Columbia Kingwood v. Romero, No. 14-00-01177. The court sent the case back for retrial. A BROADER BATTLE? The tangled case is part of a broader battle that has embroiled patients, plaintiffs’ lawyers, doctors, hospitals, legislatures and malpractice insurers in Texas and all across the country as the cost and complexity of health care spiral, experts say. “The net effect is to give the green light to hospitals to hire doctors who are drug addicts,” asserted Richard Mithoff of Houston’s Mithoff & Jacks, attorney for Ricardo Romero, who was operated on for a herniated disk in July 1998 and suffered brain damage after losing most of his blood supply. Romero’s wife sued in state district court in Houston and in 2000 won a $40.6 million jury verdict. “The hospital started out saying the doctor wasn’t on drugs and if he was, we didn’t know,” said Mithoff. “By the end of the trial it was clear that the hospital must have known. The Court of Appeals agreed that we had proven drug addiction, and that the hospital was aware of the risk. But there was no evidence that the hospital tested the doctor for drugs or monitored him. The Court of Appeals said we didn’t prove that they didn’t monitor the doctor.” Hospital peer review records and meetings about doctors are confidential and could not be used as evidence, the appellate court said. Mithoff said he and co-counsel Tommy Jacks plan an appeal to the Texas Supreme Court. The lawyer for the hospital, Richard Sheehy of Sheehy, Serpe & Ware in Houston, did not return calls for comment. The hospital and the physicians maintained at trial that heavy bleeding was a known complication of Romero’s surgery and denied any wrongdoing. The hospital and the surgeon, Merrimon Baker, were each found 40 percent responsible by the district court jury for the damage done to Romero. The compensatory damages were put at $28.6 million. The anesthesiologist and the hospital were found responsible for $12 million in punitive damages. The doctors eventually settled for a total of $2.2 million. Gwen Richard of Houston’s Milutin & Richard, president of the Houston Trial Lawyers Association, called the appellate court decision “very unfair and sending the wrong message to patients, the public and hospitals. It takes away any incentives for hospitals to monitor doctors.” Tort reform is a major issue in Texas, said Richard, making it more difficult for plaintiffs who have been severely hurt to collect. Even though studies show that there is a huge amount of bad medicine being practiced by doctors, few doctors have had their licenses revoked, Richard asserted, a factor contributing to the nation’s health care insurance crisis. “The Texas health care lawsuit system is broken and needs fixing,” said Matt Wall, associate general counsel of the Texas Hospital Association, which represents 85 percent of the state’s hospitals. He said lawsuits and high insurance premiums are driving specialists to leave the state or stop practicing certain types of high-risk medicine. Wall cited the lack of a cap on economic damages in Texas and many other states as a major problem for doctors and hospitals.

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