Kaitlynd Hiller (1L)

 Dr. Christopher Duntsch’s performance as a surgeon raised red flags right out of the gate, but the organizations that he worked for failed to take any action to protect their patients. For example, during his time at Baylor Plano, his patients experienced multiple adverse outcomes – including death. Only after a patient accused Duntsch of being up all night doing cocaine did they launch an investigation into his practice. They ordered him to complete a drug test. The first test came back diluted with tap water. He passed a second test a few days later. After a review of his surgical outcomes, they decided to let him go. But instead of outright firing him, they allowed him to resign with no black marks on his record. This meant that they were not required to report him to the National Practitioner Data Bank, which allows other institutions to review a physician’s records for any malpractice or other adverse situations. He was hired on at Dallas Medical Center with the assistance of a reference letter from Baylor Plano, where he went on to kill and maim more patients. Even after he resigned there, he continued to attain operating privileges at centres around Dallas. Other physicians who had seen his work first-hand made it their personal mission to stop him. They pleaded to have his medical license revoked, they called hospitals where he had been hired on to warn them, they got journalists on the case, and they contacted the district attorney. In their eyes, this went beyond malpractice. This was criminal.

 In July of 2015, Dr. Duntsch was indicted by a grand jury on five counts of aggravated assault and one count of injury to an elderly person. During the trial, it was up to the jury to determine whether his actions went beyond just malpractice to criminal intent. Although there were emails from Duntsch admitted into evidence where he refers to himself as becoming “a cold-blooded killer”, the jury found intent by looking to his actions. Dr. Duntsch continued to operate despite knowing full well the damage that he was causing, and he took no discernible steps to correct his mistakes. Who else would continue to put patient after patient in harm’s way when they took an oath to do no harm … unless that’s what he intended?

 Duntsch was convicted of injuring an elderly person and sentenced to life in prison. For many of his patients, this is the only recompense they will get. Malpractice damages are capped at $250,000 in the state of Texas, meaning that many prosecutors won’t take them on. Duntsch is currently appealing the decision. His lawyers argue that the testimonies of Duntsch’s other patients and relatives of victims who had suffered under him should not have been heard at trial. As mentioned above, the long list of harm done was a key factor for the prosecution’s case; the defence suggest the external testimonies unfairly influenced their decision on the case at hand. Depending on whether or not the appeal is allowed, the prosecution might not be able to employ the same legal strategy in a new trial.

 Time will tell what ultimately happens to Dr. Duntsch. It seems to be precedent-setting in terms of a healthcare practitioner being criminally charged due to how they practiced medicine. Yet up in Canada we have a somewhat analogous case – Elizabeth Wettlaufer. Nurse Wettlaufer worked with elderly people in long-term care facilities in Ontario for about two decades. During that time she intentionally injected patients with insulin to bring about their deaths. In October 2016, she pled guilty to eight counts of first-degree murder, four counts of attempted murder, and two counts of aggravated assault. She was sentenced to life in prison. An investigation revealed that our system failed her patients similarly to how Dallas’s system failed Duntsch’s victims. After being fired for stealing medication from her workplace in 1995, the Ontario Nurses Association (ONA) intervened to note her firing as a voluntary resignation. She was fired again in 2014 for incompetence and medical errors, but again the ONA intervened and … voluntary resignation. She also got $2,000, and a recommendation letter. The coroner’s office was even given tips about suspicious deaths at care facilities where she was employed. But despite her problematic employment record and efforts to tip off the authorities, Wettlaufer was never reported to the regulatory College of Nurses of Ontario and she continued to find employment.

 What are the chances that these are one-offs? How worried should we be that the next Duntsch or Wettlaufer will be tending to us or our loved ones in the future? The system works to weed out the bad ones most of the time, right? Unfortunately, the reality is that preventable medical error is alive and well in Canada, and it’s not clear that our system is working to effectively stop it.

 Canada’s landmark study on medical error came out in 2004 and is commonly referred to as the Baker-Norton report. Their research suggested that between 9,000 and 23,000 people die in Canada annually due to preventable medical error. 1,050-2,700 of those deaths occur in Alberta alone. Those numbers haven’t been any easier to pin down throughout the years as Alberta (like many other provinces) does not have a public error reporting system. The National Post did an investigation into internal error reporting in 2015, and what they discovered was that there was still a powerful professional hierarchy in the medical field. This creates a chilling effect where those lower on the professional ladder are not likely to speak up when they see something, either out of fear for their own job prospects or because they are disillusioned that nothing will come of it. One anonymous nurse from Ontario said that although she wouldn’t trust the surgeons she works with to operate on her dog, nonetheless it is common to turn a blind eye and lie to cover-up preventable medical errors.

 Reflecting on this information makes me scared, and it brings me back to the compelling thread that is woven throughout the Dr. Death podcast: how can we trust that the system which is supposed to be in place to help us – indeed to heal us – is in fact working against us and protecting its own interests instead? I don’t have an answer for that. I doubt that I ever will.