‘Sick to my stomach’: Some doctor malpractice lawsuits kept quiet, even when patients die

KILGORE, Texas (KXAN) — Sitting at a small dining table, Carol Ross, her daughter, Lynda David and granddaughter Lacy leaf through old family photos. With the turn of each page, memories of a loving husband and father emerge along with the picture of a life Ross and David say was stolen.

“That was typical daddy,” David said, pausing over one picture. “Big grin.”

What they miss most, in a word, is “everything.” Today, Roy Ross’ big grin is seen only in old photos and shared memories. In 2009, Carol Ross, now 76, drove her husband to the hospital after he began vomiting blood. He had an esophagus tissue tear — called a Mallory-Weiss tear — which should have been easily treated, according to court records and her own opinion as a former nurse.

Roy Ross never left the hospital alive. He was 63.

In 2011, two years after Ross’s death, the family filed a medical malpractice lawsuit against the hospital and anesthesiologist, alleging providers failed to intubate him, did not protect his airway and delayed CPR when he began choking on his own blood.

“I don’t know what they should have done, could have done,” Ross’ widow said. “But they did nothing.”

A jury agreed.

Roy Ross suffered severe brain damage and died days later, court records detail

“Just total despair,” his widow said. “I mean, he was my everything.”

In 2012, a jury in the family’s medical malpractice lawsuit found the hospital and anesthesiologist responsible for Ross’ death and awarded the family $1.9 million.

That outcome, our investigation found, is rare.

Malpractice lawsuits kept secret

KXAN analyzed malpractice lawsuits filed in Texas over the last decade. We found 97% were settled out of court or handled by a judge. In those cases — the overwhelming majority — the outcomes can legally be kept secret in the state of Texas. In the other 3% of malpractice cases, it was a jury that made the determination if a physician was at fault, which state law says is the only scenario, under Texas Occupations Code 154.055(b)(16), where a malpractice case must be made public.

Malpractice cases that go to trial, and are decided by a jury, are so rare we had to travel more than 200 miles to East Texas to find the Ross family and another patient, Billy Pierce.

“I’m not like I was,” said Pierce, 70, who lives in Tyler. “Never will be.”

In 2014, Pierce had surgery to remove gallstones in his bile duct. He was placed into a medically induced coma for more than a month, according to a lawsuit he filed.

“Basically put me under,” he said. “And I woke up about 42 days later.”

A jury determined the gastroenterologist failed to properly diagnose and finish his surgery. It’s unclear why Piece wasn’t transferred to another hospital or why he was kept in a coma for so long. His physician, it turns out, was on probation at the time, with hospital privileges suspended for failing to meet basic standards of care that resulted in a patient’s death, according to Texas Medical Board records.

Pierce’s lawsuit claimed “negligent care and treatment” led to his liver transplant and forced retirement as executive vice president of a chemical company. A jury awarded him $43 million.

Because the doctor in Pierce’s case was found at fault for malpractice by a jury, with appeals exhausted, under Texas law the outcome should be public on the medical board’s website. Despite that requirement, we found no record of any lawsuit listed when you search the doctor’s name.

“I’m angry. Very angry,” Pierce said when we showed the TMB website which said: “The physician has the following reportable claims. NONE.”

“The system,” Pierce responded, visibly upset, “is set up to protect doctors.”

Ross’ family, including his widow, Carol, were unaware the outcome of their lawsuit was also missing from the TMB website until we showed them.

“You’re kidding me,” she said. “Makes me feel like I’m going to throw up.”

Our investigation identified at least four doctors found liable by a jury for malpractice over the past decade with no record of any judgment on the state’s website. According to court records, that includes a doctor who failed to diagnose and treat the buildup of fluid in a patient’s brain. Another doctor was found to have improperly inserted a breathing tube, which became dislodged, and caused the patient to lose oxygen for more than 30 minutes.

Both of those patients died.

Under Texas law, those malpractice cases should be disclosed on the medical board’s website.

Push for transparency

The president of the TMB, Dr. Sherif Zaafran, said patients have a right to transparency.

“I want patients to know as much as possible about their physicians,” Zaafran said.

Still, Zaafran admits the agency can do better. KXAN asked if he thinks there should be more transparency when it comes to patients finding out about malpractice lawsuits, especially when doctors are found to have harmed patients.

“The more transparency [there] is — it’s absolutely better for patients,” Zaafran said.

In response to our previous reporting, this summer the board said it requested $2.5 million from the legislature to address licensing issues.

“Yes, reporting in late 2021 and early 2022 was a factor,” TMB spokesperson Jarrett Schneider said when asked if KXAN’s investigations played a role, “in addition to internal discussions before and after the reporting.”

The agency processes over 50,000 applications each fiscal year that require a background check, Schenider said. The $2.5 million would fund more staff to manage a new physician monitoring section for the agency. For $2.50 per doctor annually, the money would also pay for continuous background checks with the National Practitioner Data Bank — instead of relying on doctors to self-report.

“Right now, medical malpractice lawsuits are self-reported by licensees,” Zaafran said. “And, again, that’s only as good as the information we get from our licensees.”

If approved and signed by the governor, the TMB could begin receiving funding for continuous background checks on Sept. 1, 2023.

TMB records show the physicians involved in the Ross and Pierce cases are both still practicing. The one who treated Pierce was sued again and settled in 2018 following another death. Last year, the TMB ordered him to be accompanied by a medical staff member anytime he sees a patient. The board’s website shows a clean record for the physician in the Ross case.

“I had all the confidence in the world in the medical system,” Ross’ widow said. “Until this happened.”

Listening to her grandmother talk, Lacy David, 27, can’t hold back her tears. Roy Ross was her “best friend,” she said. His death inspired her to attend nursing school where she is expected to graduate next summer.

Her goal: “to be there for families.”

“We were not done right by the system,” she said. “And I still have a lot of faith in it. I really do. It’s just some things need to change. … I want to make things different. … I just want to be the change.”

“And you will be, Lacy,” her grandmother said.

The TMB said it will look at the four malpractice lawsuits KXAN identified.

“The Board will review to determine if any meet the requirements” for public reporting, Schneider said.