The latest physician to be dubbed “Dr. Death” by the media was recently found guilty of aggravated assault. A Dallas jury rejected the testimony given by his expert witness and determined that he recklessly maimed a 74-year-old patient. The jury sentenced the former surgeon to life in prison.

Facts of the Case

Christopher Duntsch practiced as a neurosurgeon in Texas, botching one surgery after another. His failures include:

• Floelle Brown died of a stroke after Duntsch sliced a vertebral artery during surgery.
• Kellie Martin died of massive blood loss after Duntsch cut through her spinal cord and slashed a major artery.
• Lee Passmore lives with chronic pain and his ability to walk has been seriously impaired since Duntsch removed a herniated disk and mispositioned the cage that replaced it.
• Barry Morguloff, another victim of a mispositioned cage during a spinal fusion, suffered from a bone chip that pushed into a nerve root, leaving him unable to move his left foot.
• Jerry Summers has been unable to move his arms or legs since Duntsch performed neck surgery.

While Duntsch was arrested for injuring or killing several victims of his errant surgeries, the prosecution decided to focus on Mary Efurd. The 74-year-old woman was in excruciating pain after Duntsch performed surgery to fuse two of her vertebrae.

Duntsch was taken to trial on a single count of aggravated assault. The aggravating factor was Duntch’s abuse of an elderly victim. To obtain a guilty verdict, the prosecution was required to prove that Duntsch “intentionally, knowingly, recklessly, or with criminal negligence” injured an elderly person.

The decision to charge a physician with a crime for the alleged abuse of a patient during surgery was unusual and perhaps unprecedented. The jury, however, determined that the facts fit the crime.

Evidence that Duntsch injured other patients was introduced over defense objections. Duntsch’s lawyer argued that the trial was about Efurd’s surgery and that Duntsch’s performance in other surgeries was not relevant. The prosecution prevailed in its argument that the collective history of Duntsch’s surgeries was relevant proof that Duntsch routinely acted with reckless disregard of the appropriate standard of surgical care, and that the outcome of Efurd’s surgery could not be attributed to an ordinary mistake in light of Duntsch’s history.

Prosecution’s Expert Testimony

To prove that Duntsch acted with reckless disregard of the appropriate standard of care, the prosecution called several of his former patients as witnesses. Their emotional testimony may have tipped the scales against Duntsch, but more relevant testimony about Duntsch’s recklessness came from the prosecution’s expert witnesses.

Dr. Robert Henderson, who performed surgery on Mary Efurd to correct Duntsch’s error, testified that he “found implants placed in muscle instead of on bone, a screw drilled into her spinal cavity and a nerve root that had been amputated.”

Vascular surgeon Randall Kirby, spine surgeon Luis Mignucci, and neurosurgeon J. Michael Desaloms all testified that Duntsch’s errors were not, as the defense suggested, ordinary mistakes that any surgeon could commit. Mignucci agreed that “bad outcomes happen all the time” but refused to characterize Duntsch’s performance as a mistake.

Defense Expert

Conceding the obvious, Duntsch’s attorney told the jury that Duntsch was “not a skilled surgeon.” He blamed the errors on a chaotic operating environment rather than intentional or reckless behavior. Duntsch’s apparent indifference to the harm he caused and his decision to keep operating probably made that argument hard for the jury to accept.

Duntsch called just one witness in his defense. Testifying as an expert, Dr. Carlos Bagley, the director of the Neurological Surgery Spine program at UT Southwestern, agreed that Duntsch’s performance was “sub-optimal.” He affixed blame on Baylor Regional Medical Center for failing to report Duntsch after Kellie Martin bled to death and on Dr. Kevin Foley for giving Duntsch a positive reference despite knowing of his adverse outcomes.

The University of Tennessee Health Science Center allowed Duntsch to practice despite knowing that his skills were questionable, and the Dallas Medical Center CEO did not inform the hospital’s chief medical officer of a bad outcome in one of Duntsch’s surgeries. The Texas Medical Board allowed Duntsch to keep his license for more than a year after his negligence was first reported.

In short, according to Dr. Bagley, the entire system failed, not just Duntsch.

Verdict and Sentence

The attempt to blame the system for Duntsch’s failures did not relieve Duntsch of responsibility in the eyes of the jury. After a 13-day trial, the jury deliberated only a few hours before finding Duntsch guilty.

A felony defendant in Texas can elect to have the jury impose sentence. Duntsch did so and the jury sentenced him to life in prison.