Trial by Video

AG Dan Morales may not have won in court, but he won where it matters -- on TV

Over the last six months, the Houston consumer protection office of the Texas attorney general has spent a lot of time, a lot of energy and a lot of money -- in the neighborhood of $100,000 -- investigating and suing a group of local surgical assistants for fraud. And after a half-year of work, what does the AG's office have to show for its efforts? A series of settlements, an irritated judge, a dismissed case and little else of worth to the general public. But for Attorney General Dan Morales, that might be okay, because the "little else" contains something of considerable worth to him: gushingly laudatory national news coverage.

Whether that coverage is deserved is open to serious question. What isn't open to question, though, is that the state's suit against the surgical assistants generated substantial attention for Morales when it was filed last September. And no wonder: He seemed to have uncovered a scandal in which people with foreign -- if any -- medical degrees and no state licenses were passing themselves off as licensed physicians and being paid for performing thousands of operations. Not only that, but genuine doctors, not to mention Houston's hospitals, were apparently in on the fraud. Furthermore, the AG contended, the Houston case was just the tip of the iceberg; this was a statewide, maybe even a national, scandal. In a press release, Morales said he had uncovered "one of the most horrifying charades in the medical history of our state." Such a story, if true, was scary stuff worthy of national notice -- even worthy last Sunday of a concerned piece on 60 Minutes.

But by the time 60 Minutes came to the issue, most of the fire had gone out of it. A Houston judge, David West of the 269th District, had made it clear that he wasn't happy with the way the AG was handling its case by dismissing it with prejudice -- a move lawyers term a "death penalty" sanction. On 60 Minutes, though, that wasn't mentioned; Ed Bradley instead depicted Morales as a crusading attorney general who stopped fraudulent doctors from practicing bad medicine. In order to do so, Bradley had to leave out some essential truths: that even before the dismissed case had made it to court the AG had settled with most of the 19 surgical assistants he called "frauds" and that after all the talk, nothing had really changed. After months of legal effort, Morales has now agreed to let surgical assistants continue performing the same services they've been performing for years: helping licensed surgeons by holding instruments, making sutures and otherwise acting as an extra set of hands in the operating room.

If these people were as dangerous as Morales had charged, why would he allow them to return to work? Has public safety been improved or protected by the attorney general's lawsuit? Apparently not -- but Morales's public image has certainly been buffed to a high sheen.

Ever since last September, when Morales denounced the surgical assistants as "criminals in surgical masks" who might be linked to the deaths of unwitting patients, the attorney general's case has been coming unglued. After launching a barrage of bold accusations about the case, on September 18 assistant attorney general Pat Tulinski of the AG's Houston office agreed to a temporary injunction allowing the surgical assistants to continue their work [see "Malpractice," September 26, 1996]. The injunction prevented the surgical assistants from using the title "doctor" and specified exactly how they should identify themselves and their services to patients and insurance companies, but otherwise changed little.

Most of the 19 defendants, including Jaime A. Olmo Jr., the man who ran Assistant Surgeons of Texas, the company that had been sued, would have been happy to make the temporary injunction permanent. But Tulinski refused to settle, instead pressing on with expensive trial preparations that included deposing expert witnesses in Chicago, Los Angeles and Philadelphia about insurance and operating room procedures.

Tulinski videotaped most of her depositions at a cost of $500 to $600 a day, running up bills totaling $5,700. That practice left defense lawyers scratching their heads, since such videotapes are rarely needed unless a witness is unavailable to appear in court. But they did come in handy for Morales's media campaign; 60 Minutes used excerpts of the depositions of Olmo and two other surgical assistants in which they testified that they weren't licensed to practice medicine.

There's no question that the hospitals and the surgical assistants were sloppy in their record keeping and credentialing procedures. And it is true that Texas, along with 48 other states, has no licensing procedures for surgical assistants. But the AG's office never managed to go beyond those facts to prove that surgical assistants shouldn't be in the operating room. The right of licensed physicians to use unlicensed assistants is clearly spelled out in state law, and common sense says that few surgeons will risk their practices by allowing incompetents to help them.

And if the surgical assistants were a sham, then Houston's hospitals and physicians were up to their necks in it. And yet the state wasn't suing the hospitals or the physicians. In the AG's scenario, it was as if the surgical assistants had been dropped from a spaceship into operating rooms.

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