How McDonald’s Enabled Dr. Death
A sophisticated PR campaign convinced Americans to give away their right to sue those who had harmed them
Thursday, NBC’s streaming service Peacock dropped its miniseries Dr. Death, a fictionalized retelling of the story of Dr. Christopher Duntsch based on the Wondery podcast series of the same name.
For those who might not be familiar, here’s the nutshell version: between November 2010 and June 2013, the neurosurgeon who touted himself as the best in the Dallas, Texas, area performed 38 spinal surgeries, many of which were routine, minimally invasive procedures. Of those 38 surgeries, 33 were severely botched, including four people who were left paralyzed and two who were killed.
The Peacock miniseries, like the podcast it is based on, focuses on the doctors and others who tried to get Duntsch out of the operating room so he couldn’t hurt any more people. The Texas Medical Board ignored their pleas and moved at a snail’s pace, allowing Duntsch to continue maiming and killing his patients. It wasn’t until these doctors went to the law — that is, the district attorney’s office — that he was finally stopped and held accountable for some of what he had done.
The story is compelling; I highly recommend both the podcast and the miniseries.
When I first learned of the Duntsch case, one question kept coming up for me: why didn’t his former patients just sue him? What he was doing was clearly gross negligence, and they had witnesses to it — nurses and other medical personnel who were present at his surgeries. Surely such a case would be a slam-dunk. And because his victims had suffered such egregious injuries, necessitating more surgery and medical care and causing lifelong disability, you’d think lawyers would be jumping at the chance to represent them.
But that was not the case. In fact, in the final episodes of the podcast, the victims talked about how they couldn’t find any attorneys willing to take their cases. Laura Beil, the host, writer, and producer of the podcast, asked them why it was so difficult to take Duntsch to court. The answer was almost as infuriating as the crimes Duntsch had committed.
Hot coffee and “jackpot juries”
Back in the 1990s, if you were old enough to be aware of the world, you might remember this story: some woman had spilled hot coffee on herself while driving, so she sued the McDonald’s where she bought the coffee and won.
But that was not what actually happened. First of all, the plaintiff — 79-year-old Stella Liebeck — was not driving. She was in the passenger seat of her son’s car, and after ordering her coffee from the drive-thru, her son pulled over and stopped the car so she could add sugar and creamer to it.
The lid was on quite tightly, so Liebeck put the cup between her legs to get it off. When she did so, the coffee spilled out all over her lap, soaking through her pants and inflicting painful third-degree burns on her thighs and genitals.
Liebeck was in the hospital for eight days, and she had to have skin grafts to replace the flesh that had burned off.
Liebeck, at first, only asked McDonald’s to cover her (extensive) medical bills. The company refused, offering her the insulting sum of $800.
So Liebeck took them to court. Through the discovery process, it was revealed that McDonald’s had been warned multiple times that the temperature it kept its coffee at — 180–190 degrees — was unsafe, hot enough to cause third-degree burns within three seconds. In fact, over 700 other people had been severely burned by their coffee, but McDonald’s refused to change its practices.
The jurors awarded Liebeck $200,000 in compensatory damages for her pain, suffering, and medical costs, and $2.7 million in punitive damages. However, both of those amounts were later reduced — down to $160,000 for pain, suffering, and medical costs, and $480,000 in punitive damages. The two parties — Liebeck and McDonald’s — eventually settled out of court for an undisclosed amount, though it is believed to be less than $500,000.
Meanwhile, McDonald’s launched a sophisticated PR campaign to paint itself as the victim of an out-of-control legal system and to smear Liebeck as just a greedy person who didn’t have enough common sense to know that coffee was hot. It used the case as proof of how litigious Americans are, that they will sue over any little thing, no matter how frivolous, hoping for a “jackpot jury” to give them a big payout.
The PR campaign was so successful, plenty of people still, to this day, believe these myths. But more importantly, the myths provided the justification for lawmakers to “rein in” such “frivolous lawsuits.”
Tort reform to the rescue
First, let’s define what “tort reform” means. In legalese, a tort is a civil wrong — in other words, harm caused by a non-criminal action of another. So even though a person might not have committed a crime, if their actions have caused you harm such as pain, suffering, or loss of income, you could sue them in civil court under tort law.
The idea of tort reform — making it harder to sue in civil court and putting caps on the amounts those courts could award plaintiffs — had been floating around since the 1980s. One of the main lobbyists in favor of tort reform was, unsurprisingly, the American Medical Association.
However, the idea wasn’t popular with most people, and the Trial Lawyers Association lobbied against it as well. Each legislative session in Texas, Republican lawmakers would introduce tort reform legislation, only to have it voted down or mired in committee.
But the McDonald’s PR campaign changed all that. George W. Bush, with help from long-time GOP strategist Karl Rove, made tort reform a major plank of his gubernatorial platform in 1994. After taking office in 1995, he, along with the Republican-held legislature, was able to re-write several basic civil laws, such as limiting liability, changing the rules about who could be held liable, and setting new rules about where and when these lawsuits could be filed.
After that, 19 more states enacted some kind of tort reform legislation. But in 2003 it really took off. In that year alone, 20 more states did. One of those states was Texas, in the form of HB 4. Then-Gov. Rick Perry championed HB 4, claiming that current tort law (remember, already curtailed by Bush in 1995) was leading to a “skittish business community” and “higher insurance.”
Passing HB 4, Perry promised, would result in doctors flocking to Texas. Since doctors wouldn’t have to pay such high malpractice insurance rates, he claimed, the cost of care would come down.
None of that came to pass. The only cost that was lowered by HB 4 was the malpractice insurance premiums doctors paid; those savings were not passed on to their patients.
The reforms HB 4 put into place included two important things: first, it raised the standard for being able to bring suit against someone from “gross negligence” to “actual malice,” meaning the plaintiff has to prove that the defendant actually intended to cause harm with their actions. Needless to say, this is a nearly impossible standard to meet.
Next, the payouts for pain and suffering and for lost wages were capped. The Texas courts are no longer able to award a plaintiff more than $250,000 for pain and suffering, no matter how much of it the defendant inflicted. Also, economic damages are limited to lost wages only, so people who aren’t employed — retirees, people with disabilities, children, and stay-at-home parents — are not entitled to one dime of economic damages. Low-wage workers aren’t entitled to much more.
Thanks to these reforms, most attorneys in Texas (and other states with these laws on the books) simply won’t take cases like these. Even if they can prove actual malice, the payouts are so small the cases just aren’t worth the attorneys’ time. Unsurprisingly, after these reforms were passed, malpractice suits plummeted.
Duntch’s victims — who were clearly injured by his negligence and/or incompetence — found themselves barred from the courthouse, with no access to justice.
However, in 2014, several of Duntsch’s victims brought a series of suits against both Baylor Regional Medical Center and Duntsch, alleging Baylor knowingly and intentionally allowed Duntsch to repeatedly botch surgeries and other procedures, killing and injuring patients.
More importantly, the suits seek to challenge the constitutionality of HB 4, specifically the standard of “actual malice” needed to find a hospital liable: that is, the hospital knew of extreme risk and ignored it. The standard is nearly impossible to meet, since Texas hospitals can keep their physicians’ information confidential. The result is that hospitals are essentially immune from the actions of their physicians.
Texas’ then-attorney general (now governor) Greg Abbott inserted himself into the case in order to uphold HB 4. He stated that he is in no way defending Baylor or Duntsch, but only the constitutionality of the law.
As of this writing, there has been no update on the status of these suits.
Justice delayed?
As for Christopher Duntsch, he was arrested July 21, 2015. His trial took place in February 2017 — the first time a doctor had been criminally charged for what he had done as a doctor. The trial lasted three weeks, with a parade of witnesses — Duntsch’s former patients — hobbling to the stand using walkers and wheelchairs, describing the pain and disability they suffered as the result of his botched surgeries.
It only took the jury four hours to return a guilty verdict — only one, for elder abuse, for the disabling injuries he inflicted on Mary Efurd. He was sentenced to life in prison. He is currently serving that sentence in the O. B. Ellis Unit outside Huntsville, Texas, and will not be eligible for parole until 2045, when he will be 74 years old — the same age Efurd was when Duntch operated on her.
The Texas civil courts still operate under the limitations of HB 4, a situation that the Texas Observer describes as “a policy of medical deregulation — a free-market system in which doctors can practice as they please with limited government interference.”
As of this writing, there have been no reforms in either the Texas Medical Board’s policies or procedures to protect against another Dr. Death.
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