The team that triggered a malpractice shootout

October 22, 2001

In the Rio Grande Valley, doctors fight aggressive lawyers, dubious lawsuits, and a busy local medical "expert."

 

The team that triggered a malpractice shootout

Jump to:Choose article section... A plaintiffs' lawyer with plenty of clout A cardiac arrest leads to a question about credentials A feeding frenzy for clients produces some dubious claims A "medical expert" with no office practice or hospital privileges The fallout from "a plague of malicious lawsuits"

In the Rio Grande Valley, doctors fight aggressive lawyers, dubious lawsuits, and a busy local medical "expert."

By Berkeley Rice
Senior Editor

In their worst nightmares, doctors may find themselves being hounded by a ruthless plaintiffs' lawyer. For those who practice in Texas' Hidalgo County, such nightmares might feature a lawyer named Ramon Garcia and his favorite medical expert, a GP named Jetta Brown.

Hidalgo County is located in the heart of rural Rio Grande Valley, which is known among officials at the state medical society as a lawsuit war zone. According to Texas Medical Liability Trust, the state's biggest liability carrier, the frequency of claims in the valley in recent years has been much higher than for the rest of the state. As a result, TMLT's premiums for valley doctors are nearly twice as high as their colleagues' elsewhere in Texas.

Because of its plaintiff-friendly judges and jurors, and the prospect of big verdicts or settlements, the region has become a magnet for personal injury lawyers. Law firms from Dallas, Houston, and San Antonio have opened offices in the valley or developed referral relationships with local lawyers. They solicit clients with television and newspaper ads that typically begin, "If you or your loved one has suffered from medical negligence. . . ."

Most of the area's residents are Hispanic, poor, and uninsured. Encouraged by such lawyers, many see lawsuits—before a jury of their peers—as their best chance to win a big jackpot. Rick Evans, a San Antonio attorney who often defends doctors in the valley, calls the region "a real honey pot for plaintiffs' lawyers. If they can get a case to a jury down there, there's no telling what will happen. So the doctors and insurance companies often settle rather than risk their chances in a trial."

Probably the riskiest place in the valley to practice these days is Hidalgo County, which includes the bustling border city of McAllen (pop. 106,000) and the county seat of Edinburg (pop. 48,000). Records compiled by the Texas State Board of Medical Examiners show that more than 750 claims were filed there over the previous two years. Only 131 had been filed the year before.

A plaintiffs' lawyer with plenty of clout

The man who filed many of the currently pending claims is Edinburg lawyer Ramon Garcia. Along with considerable charm and legal skill, Garcia has other professional advantages. Until last year, he was Democratic Party chairman for the overwhelmingly Democratic county. That position, say local political observers, gives him some control over the selection and financing of his party's candidates for local judgeships. That power, the same sources say, also gives him some influence over which judge his cases get assigned to.

Most of Garcia's current medical liability claims have been assigned to Judge Mario Ramirez, whose rulings and nonrulings thus far have been highly favorable to Garcia. The attorney personally contributed $5,000 to Ramirez' last election campaign; many other valley lawyers gave lesser amounts.

Until recently, Garcia had not specialized in medical cases. Then he discovered cardiac surgeon Francisco Bracamontes.

When McAllen Medical Center, the biggest hospital in the valley, recruited Bracamontes in 1993, he arrived with impressive credentials and excellent recommendations. After internship and residency in general surgery at the National Medical Center in Mexico City, he served as chief of surgery at the university hospital in Tampico, Mexico. He did six-month fellowships in England and France, then a three-year fellowship in cardiovascular surgery at Denton Cooley's Texas Heart Institute in Houston. He also became a fellow of the American College of Surgeons and a US citizen.

Because he had done his surgical residency in Mexico, however, Bracamontes was not eligible for board certification in the US. Since McAllen Medical Center's bylaws require all specialists to be board-certified or board-eligible, some members of its credentialing committee opposed his appointment. But the hospital's executive committee approved it.

Aided by the hospital's promotion of its "outstanding" cardiac team, Bracamontes soon built a busy practice in McAllen, first with another local cardiac surgeon, then as an employee of the medical center after it bought his practice in 1997.

From then on, he averaged about 200 procedures a year. For someone doing high-risk surgery on mostly Medicare and Medicaid patients, his clinical outcomes were respectable, and until 1999 he had never been sued. That's when things changed.

A cardiac arrest leads to a question about credentials

In September 1998, Bracamontes was called to the hospital when Leonel Garza, a 59-year-old patient with a history of heart problems, went into cardiac arrest after an attempted angioplasty. Although Bracamontes did an emergency bypass, Garza died that evening.

Garza had been a prominent citizen and a member of the hospital's board of governors. His family retained Garcia, who filed a wrongful death suit against the hospital, Bracamontes, and two cardiologists in May 1999. During discovery in that case, Garcia learned that the hospital had claimed on its Web site and in promotional brochures that the members of its team of cardiac specialists—which included Bracamontes—were "all board-certified in their respective fields."

It's not clear that any of Bracamontes' patients were actually misled by—or had even read—that claim. Nevertheless, it became the basis for a barrage of negligence actions filed by Garcia and other plaintiffs' lawyers against the hospital, Bracamontes, and the cardiologists who referred patients to him. As Garcia's brother and partner, Felipe Garcia Jr., told a reporter for The Wall Street Journal, "If somebody is cutting open people's hearts, you expect [him] to have the proper credentials."

In August 1999, Houston plaintiffs' attorney Michael Caddell filed a class action suit against the hospital and Bracamontes on behalf of the surgeon's patients. Caddell asked the judge in that case (not Mario Ramirez) to issue a temporary restraining order to stop Bracamontes from doing any cardiac surgery, on grounds that he was unqualified and a danger to patients. The judge granted the order, but rescinded it four days later after it became apparent that despite his lack of board certification, Bracamontes was clearly no threat to his patients.

As word of the restraining order and the lawsuits got around, however, his colleagues grew reluctant to refer patients to Bracamontes or take call for him, fearing that they would be sued as well.

A feeding frenzy for clients produces some dubious claims

To round up more clients, Garcia advertised in local papers, soliciting former cardiac patients to join as plaintiffs in a suit against the hospital and Bracamontes. The ad was only modestly productive, but Garcia found a more efficient approach.

In June 1999, he negotiated an agreement with Bracamontes in the Garza case. Since Bracamontes had never claimed to be board-certified, and since proving his negligence might have been difficult, Garcia agreed to drop his claims against Bracamontes in exchange for his cooperation in providing information about other operations the surgeon had done at the hospital. Faced with the threat of endless litigation with no support from the hospital, Bracamontes agreed.

His lawyer objected, arguing that turning over Bracamontes' patient list would violate doctor-patient privilege. But the judge (not Ramirez) overruled the objection, forcing Bracamontes to produce the patient list. (Bracamontes and his attorney, George Brin, of San Antonio, declined to be interviewed for this story.)

Armed with the roster of Bracamontes' patients, Garcia sent letters soliciting them as plaintiffs. The letter read: "If you or your loved one were not accurately informed about Dr. Bracamontes' [lack of qualifications] before consenting to heart surgery by him . . . you may have a claim for pain and suffering, mental anguish, and other personal injury or economic damages."

In May 2000, Garcia filed a multiparty suit on behalf of more than 230 patients and their families against the hospital and cardiologist Hector Urrutia, who had referred many of these patients to Bracamontes for surgery. Urrutia's mother had received one of Garcia's solicitation letters, even though her surgery had been successful and she was unlikely to join a suit against her own son.

Some of the claims filed by Garcia have since been dropped because there was no evidence of injury, negligence, or other legitimate "cause of action." Some of the patients had never been treated by Bracamontes. Others were unaware that they had been listed as plaintiffs or that the suits named their doctors as co-defendants.

The suit charged that Urrutia had referred patients to Bracamontes—and that the hospital had allowed him to operate—when they "knew, or should have known" that the surgeon "lacked sufficient training and experience to operate on heart patients." As a result, the suit alleged, many patients "suffered personal injuries and, in some cases, died." The suit, however, did not cite any specific examples of Bracamontes' alleged negligence.

Garcia's medical expert, GP Jetta Brown, reviewed more than 220 claims. In remarkably similar language, she reported evidence of negligence in every one. She accused Urrutia of having "negligently referred" patients to Bracamontes despite knowing that he was "poorly trained" and "incompetent" and "lacked the skills and qualifications" necessary for cardiac surgery.

Over the following months, however, many of the patients listed as plaintiffs in that suit continued to seek treatment from Urrutia, and several expressed surprise when he asked why they were suing him. Urrutia insists that he's never seen nearly half the patients represented by Garcia. "This case is so absurd and so unjust," he says, "that I assumed it couldn't possibly develop into a real threat. But it has."

Urrutia's lawyer, Rick Evans, filed a motion for dismissal last March, questioning whether Garcia legitimately represents the plaintiffs named in the case, and asking for "appropriate sanctions" against him for filing the suit "in bad faith." Judge Ramirez has not yet ruled on this issue.

A "medical expert" with no office practice or hospital privileges

Evans also filed a motion for dismissal last January on the grounds that Garcia's medical expert, Jetta Brown, is unqualified to review negligence claims in cases involving cardiology or cardiac surgery. (To prevent frivolous malpractice claims, Texas state law requires plaintiffs' attorneys to submit a report from a medical expert qualified to judge whether a defendant physician has met the standard of care for his specialty.) Judge Ramirez has not yet ruled on this motion, either.

Brown is a solo GP in Edinburg, with no hospital privileges, no office practice, and no listing in the local telephone directory. She claims that she still makes house calls, but one local FP describes her practice as "intermittent."

A new patient trying to reach Brown would not have an easy task. Her address and phone number aren't listed with the local telephone company, the county elections office, the tax assessor's office, or the county and state medical societies (she's not a member). When Medical Economics finally obtained her cell phone number and called to request an interview, she replied, "We have nothing to talk about," and hung up. She also didn't respond to an invitation to comment on a draft of this article.

In recent years, Brown has spent much of her time reviewing malpractice claims for local plaintiffs' lawyers. In a deposition taken about a year ago, she disclosed that she charged $300 for reviewing each claim, and $500 an hour for testifying as a medical expert. At that time, she estimated that she'd reviewed about 700 cases in recent years, including 400 for Garcia's firm.

To justify her role as an expert in the cases against Urrutia and the hospital, Brown claimed that she had "observed" or "attended" many cardiac operations during her years in practice, although she admitted she'd never actually performed one herself. She also cited her one-year general surgery internship in Galveston about 20 years before, which included a six-week rotation in cardiac surgery.

In an affidavit, the director of that program said he was "stunned" to hear that a physician would claim expertise in cardiac surgery on the basis of such an "extremely basic one-year experience."

The fallout from "a plague of malicious lawsuits"

Francisco Bracamontes continues to practice cardiac surgery at McAllen Medical Center, where he was recently elected assistant chief of surgery by his colleagues.

Hector Urrutia continues to refer most of his surgery cases to Bracamontes. The cardiologist says his own practice has been hurt by his involvement in the malpractice battle. Nevertheless, he remains steadfast in his support of Bracamontes. "He's an excellent surgeon," says Urrutia: "He's very well-trained and highly qualified. It's a shame that he's been subjected to this kind of legal abuse."

Despite feelings of anxiety, anger, and despair, Urrutia has no plans to leave the Rio Grande Valley. Instead, he's joined a group of doctors who've launched a political action group to defend themselves against what he calls "a plague of malicious lawsuits" (see "Valley doctors fight back").

In a recent interview with Medical Economics, lawyer Ramon Garcia insists that his cases against Urrutia and McAllen Medical Center are legitimate, not malicious. "This really isn't about malpractice," he says. "Whether Bracamontes is a good surgeon or not isn't the point. The central issue here is the hospital's misrepresentation of his credentials and his patients' right to informed consent. After all, heart surgery is a pretty serious procedure. Shouldn't patients be able to rely on the hospital's claims about his credentials? I've got experts who tell me they've never heard of a cardiovascular surgeon who's not board-certified."

To Rick Evans, Urrutia's attorney, that argument is nonsense. "This case would have been thrown out of any reasonable court in the state," he contends, "particularly once a judge saw Jetta Brown's expert reports. But it's a different world down here. You never know what's going to happen."

Valley doctors fight back

"These crazy cases have a chilling effect on doctors who practice in the Rio Grande Valley," says Carlos Cardenas, a McAllen, TX, gastroenterologist and president of the Hidalgo-Starr Counties Medical Society. "Doctors here feel like they're walking around with a big target on their backs."

The crisis affects valley doctors in numerous ways, says Cardenas. He knows many who have left the area or who are considering it. Others are retiring early, or planning to. "It has become a real problem in attracting new doctors to the area," he explains. "We've been searching for a new partner for our group for two years now, with no luck. Our malpractice premiums increased about 30 percent last year; and for some surgical specialties here they're up 100 to 200 percent.

"This problem also affects the way we practice," continues Cardenas. "Because of all the lawsuits, there's a lot of pressure on primary care doctors to refer patients to specialists for minor procedures rather than doing them themselves. That's driven by the fear of being sued, not by good medicine."

Because of such fears, a group of about 50 doctors formed the Rio Grande Valley Physicians' Political Action Committee in time for the 2000 election. PAC members campaigned vigorously to oust some of the most blatantly plaintiff-friendly judges and replace them with their own "health care slate."

"We got very involved," Cardenas recalls. "We worked on voter registration, we showed the PAC's video in our waiting rooms, and we handed out flyers with the names of our candidates. We talked to our patients, our staff, our friends, and neighbors."

In that 2000 election, the Valley Physicians' PAC was influential in electing four of the five candidates it endorsed. One of the group's biggest victories was the defeat of plaintiffs' attorney Ramon Garcia, the county's powerful Democratic Party chairman. That position gave him some control over the selection and financing of local judicial candidates.

Looking back proudly on the PAC's success, Cardenas comments: "Doctors here had never gotten involved as a group before in the political process. But things have gotten so bad we had to start fighting back."

 

Berkeley Rice. The team that triggered a malpractice shootout. Medical Economics 2001;20:18.