by Wayne Slater
When Baylor Regional Medical Center in Plano was accused of protecting a neurosurgeon whose patients died or were maimed, it got some outside help from Attorney General Greg Abbott.
Abbott has intervened in three federal cases on the hospital’s side. He says he’s defending state law as a matter of principle. But he’s also siding with one of his biggest campaign contributors.
In March, Abbott — the Republican nominee for governor — filed motions to intervene in federal court against former patients who sued the doctor claiming botched spinal surgeries. The patients contend that the 2003 Texas law sharply limiting medical malpractice suits is unconstitutional.
Aides say Abbott is trying to defend an important state reform, not shield Baylor from liability. But his action would make it more difficult for the patients to win their cases.
Baylor Regional is part of the Baylor Scott & White Health hospital system. The chairman of the system’s board of trustees is Drayton McLane, a Temple transportation executive and Republican political contributor. McLane has donated to Abbott before, but never in the large sums of the last year amid the hospital’s mounting legal problems.
Abbott received $100,000 from McLane in June 2013 and another $250,000 in January. The donations coincide with Abbott stepping up his fundraising as his campaign for governor developed. But before these contributions, McLane’s biggest donation to Abbott was $25,000, according to state records.
The $100,000 donation came a day after the Texas Medical Board suspended the license of Dr. Christopher Duntsch, who left Baylor Plano in 2012 after a series of problem surgeries. The second donation was reported a week after the second of several medical malpractice lawsuits was filed against the doctor and hospital.
Abbott’s opponent this fall, Democratic state Sen. Wendy Davis of Fort Worth, has charged that such cases are part of a pattern in which Abbott used his authority as attorney general to protect powerful insiders at the expense of ordinary Texans. Abbott’s campaign rejects that, saying he has an obligation to defend state law. And he contends it’s Davis who has abused her power, voting to help her public-sector law clients.
In separate statements, Abbott and McLane said they have not discussed the lawsuits. McLane said he didn’t know about the case before contributing to Abbott’s governor’s race, has no financial interest in the nonprofit hospital system and serves as board chairman as a community service. The position is unpaid.
“I had no knowledge of the Duntsch lawsuits or the challenge of the constitutionality of Texas law in relation to these lawsuits prior to writing my last check to General Abbott’s campaign,” McLane said in a written statement.
A spokeswoman for Abbott said McLane’s contributions played no role in Abbott’s decision to intervene.
“The state is not defending the hospital or the doctor in this case — or their alleged conduct,” said Abbott deputy communications director Lauren Bean. “If the hospital or doctor have violated the law, then they will be held accountable, and nothing in the state’s court filings opposes the plaintiffs on that front.”
Lawyers for the patients say the state law sets such a high legal bar for proving gross negligence that it effectively shields hospitals from accountability.
Patients have accused Duntsch of operating under the influence of alcohol and drugs, damaging their spines and slicing through arteries in operations that one colleague described as “clueless surgical technique” that left patients dead or quadriplegic. His case was detailed in a Dallas Morning News investigation published in March.
“Duntsch is an impaired physician, a sociopath and must be stopped,” a medical colleague wrote the state medical board, which has revoked Duntsch’s license.
Patients suing the hospital allege Baylor knew Duntsch was a dangerous physician but did not stop him from performing back surgery and failed to tell other employers after he left the hospital. Both Duntsch and the hospital have denied any wrongdoing.
In his run for governor, several of Abbott’s actions as attorney general have come under scrutiny.
Abbott authorized scores of state bond issues in which he has received more than $200,000 from the political committees of law firms serving as bond counsel.
Earlier this year, Abbott ruled that the public cannot have access to state information about the location of potentially dangerous chemicals like those that caused the 2013 ammonium nitrate explosion in West in which 15 people were killed. The ruling came after he received $75,000 from the Koch Industries political committee and executives, including the head of the company’s fertilizer division.
Abbott has collected more than $75,000 in the governor’s race from the Farmers Insurance political committee amid criticism that a proposed settlement in a long-running lawsuit against Farmers doesn’t adequately compensate homeowners for being overcharged.
Abbott says he has always acted in the best interest of the state, not his financial donors.
As for the 2003 law involving malpractice claims, Abbott was a strong proponent. The statute puts caps on judgments in malpractice cases and protects hospitals from large awards except in cases where a court finds they intended to cause injury or death.
Backers say the law has helped keep doctors from leaving the state because of rising malpractice insurance premiums.
As a candidate for attorney general, Abbott was a strong advocate of a measure to limit lawsuits against business. He said the real “abuses in the health care industry today” were not from malpractice, but from lawsuits against doctors and hospitals.
“We must find ways to prevent those claims from going forward,” he said in a campaign debate in 2002.
The leading advocate of tort reform, including the 2003 medical malpractice law, is the business group Texans for Lawsuit Reform. Abbott has received more than $490,000 from the group since 2002.
In a statement, Baylor Scott & White Health said its only contact with Abbott about the Duntsch case was when the attorney general’s office asked an attorney representing the hospital whether it would object to state’s intervention in the case.
“Ultimately, the decision to allow the attorney general’s intervention was up to the presiding judge, and he found it appropriate and allowed it,” Baylor said in a written statement.
McLane said he’s making larger contributions to Abbott now than in the past because the attorney general is running for governor.
“When you look at my cumulative donations over the years, I have supported other Texas candidates, whom I believe in, similarly to how I have chosen to support General Abbott,” McLane said.
McLane’s $350,000 in donations to Abbott for this campaign is already his largest contribution to any Texas candidate. Before this year, his largest cumulative donation in any statewide race was $100,000 to Gov. Rick Perry’s 2010 re-election effort, according to campaign finance filings. McLane’s combined contributions to Perry since he became governor in 2000 totals $330,000.
Bean, the Abbott spokeswoman, said that if the patients in the case were not challenging the state law, the attorney general would not have intervened.
“The plaintiffs could have sued to recover damages without challenging the constitutionality of the law. If they had done that — or if they amend their pleadings to delete a challenge to the constitutionality of the law — then the state would not be a party to the case,” she said.
She added: “The state does not condone, support, or defend the actions of the hospital or doctor. The only thing the state will argue is that the law is not unconstitutional.”