Today’s case is, we think (and certainly hope), unlike any other case we have discussed in 2018. To begin with, Duntsch v. State, 2018 Tex. App. LEXIS 10131, 2018 WL 6445369 (Texas Ct. App. 5th Dist. Dec. 10, 2018), is an appeal from a criminal conviction. Since we have droned on incessantly about how our happiest days as a lawyer were spent prosecuting crooks, everyone on the blog knows that we have first dibs on criminal cases. In Duntsch, the issue was whether a criminal assault statute could apply to a case of medical malpractice. The Texas court ended up affirming a neurosurgeon’s conviction for “intentionally or knowingly causing serious bodily injury to an elderly individual while using or exhibiting a deadly weapon” – the “deadly weapon” being his hands, surgical tools, and a medical implant. As described by the court, the defendant neurosurgeon comes across as not only incompetent, but also arrogant. Indeed, read a certain way, the court’s recital of the facts of the case portrays a sociopath. Nevertheless, a criminal conviction for assault with a deadly weapon against an actual surgeon, no matter how bad the surgeon’s conduct (and the court makes it sound bad bad bad bad), seems unprecedented.

We will confine ourselves to the facts in the Texas appellate decision, though this case has received extensive coverage. There is an article in D Magazine calling the defendant “Dr. Death.” There are several accounts on the web. There is a multi-part podcast devoted to this extraordinary story. One of the themes running through these accounts is the alleged failure of the medical system, in terms of credentialing, reporting, and med-mal limitations. The moral of the tale, so we are told, is that the criminal justice system was the last, best, necessary resort after other systems failed to protect patients. You can decide for yourself whether that moral is fitting here.

The particular offense involved back surgery on an elderly woman. It is an understatement to say that the result was not the desired reduction of pain. Rather, the patient’s pain dramatically increased. Even worse, the woman suffered from “drop foot” and incontinence. It appears that the defendant put the pedicle screw in exactly the wrong place. The surgery was a sequence of terrible errors. “There were holes where they shouldn’t be in the bone.” Further, there was testimony that the defendant was distracted during the surgery by the deteriorating condition of another back surgery patient, who subsequently died. The defendant got into an argument as to whether the other patient required a craniotomy. Meanwhile, the defendant’s surgical technique for the patient in front of him on the operating table was, according to doctors and nurses present during the surgery, abominable. One doctor characterized the procedure as a “catastrophic surgical misadventure.”

One of the eyewitnesses to the disastrous surgery was the device representative. We have written in the past (here, for example) on whether the presence of a device representative during a surgery can present problems for the manufacturer in a product liability case. But here, the device representative’s testimony was damning for the defendant doctor. The rep said that surgery was “chaos from the beginning,” that the pedicle screw erroneously was placed into soft tissue rather than bone, and that there was more bleeding during the operation than there should have been.

The jury heard not just about the subject surgery, and not just about the other back surgery that went fatally wrong and that distracted the defendant, but also about several other surgeries where the defendant committed awful malpractice. In one especially sad case, the defendant operated on old friend and managed to turn him into a quadriplegic. In another, a fellow surgeon described the defendant as operating at the level of first or second year neurosurgery resident. Multiple patients died from the defendant’s treatment. Think of how this evidence of other catastrophic results played out at trial. Every day in the courtroom the jurors must have seen injured people using crutches, walkers, wheelchairs and worse. They must have also seen loved ones overcome with grief and anger. Evidence of other acts is powerful stuff. Sometimes it can be too powerful.

The evidence of other acts did not come only from victims. An office manager who worked for the defendant acknowledged that the defendant “had an unusual number of bad outcomes” compared to other doctors for whom she had worked. She also described an instance where the defendant had asked her to alter some medical records after the fact. Perhaps even worse, a nurse practitioner who was also an ex-girlfriend of the defendant was quizzed about some incendiary emails the defendant had sent her, including one where the defendant described himself as a “stone-cold killer.” She did not interpret the email to reveal a criminal mind, but the jury was free to do so.

An expert doctor testified for the defense that the defendant’s errors were “known complications” that a “poorly-trained surgeon could do,” and that have, in fact, occurred in the past. In other words, the defense added up to arguing that the defendant was an idiot but not quite a criminal.

After all the evidence rolled in, the jury convicted the defendant. The sentence was life imprisonment. Let that sink in for a moment.

The two key issues on appeal were whether the other terrible surgery results should have been admitted into evidence and, most fundamentally, whether the evidence was enough to support a finding of criminal intent on the part of the defendant. The two issues have a lot to do with one another, of course. As we said up top, the criminal statute applies to someone who “intentionally or knowingly causes serious bodily injury” to an elderly person. The state did not claim that the defendant actually intended to inflict harm on the patient. Consequently, the issue was one of knowledge. A person acts “knowingly” with respect to a result of his conduct if “he is aware that his conduct is reasonably certain to cause the result.” The court concluded that a jury could reasonably find that the defendant was reasonably certain that his conduct would seriously injure his patient inasmuch as the defendant was aware of his recent track record of inflicting extremely rare and serious complications on his surgery patients, and was also told during the surgery in question that he was botching the operation.

The prior surgeries came into evidence not merely to show that the defendant was a rotten surgeon, but to show that the defendant had the knowledge of those results in his head, and that such knowledge added up to the requisite culpable state of mind (in law school we learned to call it mens rea). As the prosecution contended, the other acts here were contextual, not extraneous. The court agreed, and held that the other surgeries were properly admitted per Fed. R. Evidence 404(b). They were similar to the surgery at issue, and they shed light on the defendant’s state of mind.

The defendant offered a pretty good argument that there is something wrong with the fact that the evidence of the surgery in question took up less than a day of trial, while the evidence of the prior surgeries took up another twelve days. But the court reasoned that the prior surgeries were probative on a highly disputed point (the defendant’s mental state). Moreover, the trial court repeatedly instructed the jury that the prior surgeries were to be considered “only … in determining intent, knowledge, motive, absence of mistake or lack of action of the defendant, if any, alleged in the indictment in this case and for no other purpose.”

The appellate court also rejected the defendant’s argument that the “stone-cold killer” email was substantially more prejudicial than probative. The prosecutor certainly emphasized that email during closing argument. We can understand why the prosecutor would do that, but use of evidence in closing argument makes it that much harder to argue harmless error. The prosecutor’s bet paid off, given that the appellate court did not find error. We probably would have gone the more prudent route and kept mum about it in argument, trusting the jurors to seize upon it during deliberations. Maybe that’s why we are now a hypercautious civil defense hack.

One of the three appellate judges in Duntsch dissented, arguing that the evidence at trial did not prove the defendant’s “knowledge.” The dissenter believed that evidence of the prior bad surgeries at most showed what the defendant should have known, not what he actually knew, about his poor surgical skills. One passage in the dissent is particularly persuasive: “Appellant was not on trial for being a doctor generally or, more to the point, for being a doctor who lacked adequate training or technique – neither of those things is a crime. And, criminal trials are not reverse class actions.” The dissent makes other useful points, and suggests that the evidence could have supported a finding of recklessness, which would have been a lesser offense. But the dissent was only a dissent, so the majority’s affirmance of the conviction on the most serious offence charged held sway. Interestingly, the dissent agreed with the majority that there is no broad policy reason to exempt physicians from the reach of the criminal code when medical malpractice sinks to the defined level of culpability.

Duntsch is an extreme case. It is a memento mori painted on the edge of tort law, reminding us of what can happen when things go horrifically wrong.