Tune in as hosts Michael Byrd and Brad Adatto share the story of a spine surgeon who was accused of being the next “Dr. Death”. We discuss the first lines of defense for asset protection planning, and how to mitigate the inevitable risk that comes with owning a business.
Listen to the full episode using the player below, or by visiting one of the links below. Below is the episode’s transcript which has been edited for readability. If you have any questions or would like to learn more, email us at email@example.com.
Intro: [00:00:00] Welcome to Legal 123s with ByrdAdatto. Legal issues simplified through real client stories and real world experiences, creating simplicity in 3, 2, 1.
Brad: Welcome back to another episode of Legal 123s with ByrdAdatto. I’m your host, Brad Adatto, with my co-host Michael Byrd.
Michael: Thanks Brad. As a business and healthcare law firm, we meet a lot of interesting people, and learn their amazing stories. As you know, this season we are spicing things up a bit. We’re here to talk about OPP: other people’s problems.
Brad: Michael, for those listening for the very first time this season, tell them what we’re doing with OPP.
Michael: We’re going to focus on some public stories this season instead of our own, and then we’re going to try to glean some legal lessons from these various fascinating stories.
Brad: Love it, Michael. Now let’s take a step back. Michael, have you ever seen the movie Jurassic Park? Clarification, the one from the [00:01:00] 1990s.
Michael: Well, hello old friend, and by old, I mean old. I haven’t heard Brad, the 1980 1990 movie buff in quite a while. So yes, Brad, you have at least an audience of one who is interested.
Michael: That would be me because I’m also old and of course I’ve seen Jurassic Park.
Brad: Awesome, and for those who don’t know, the movie is actually based on a book written by Michael Crichton, and it’s set around a disasters attempt to create a theme park for clone dinosaurs. The concept the 1990s, or actually he wrote it in the early eighties, was based on some scientific theory, but it was mostly sci-fi in reality.
Michael: So those velociraptors weren’t real?
Brad: Don’t spoil it, Michael.
Michael: Oh, well you said sci-fi.
Brad: Well, six years later, in 1996, Dolly the sheep became the first mammal to have been successfully cloned from an adult cell. Once Dolly’s birth was [00:02:00] announced publicly, there’s all this different kind of controversy. Some of those people were supporting it, saying this is great because we’ll now have crucial advances in medicine because we can hopefully genetically modify animals to be organ donors for humans. Other scientific individuals looking at, well, this is another way we can clone animals, and possibly preserve endangered species. Of course there were some distractors out there saying, Well look, with this technology, It’s unsafe and it’s unethical because everyone saw that the next leap may be human cloning.
Michael: I know where you’re thinking, Brad, and no we’re not going to clone you. We would actually have another recreation of Jurassic Park if they started making Brads. It would be terrible.
Brad: That hurts. I mean, could you imagine, Riley? How much fun it would be here with two Brads in the podcast.
Michael: Well, I certainly would have to do nothing because the two Brads would be fully entertaining themselves for hours on end…so what?
Brad: Hold on. Fact check, correct. [00:03:00]
Michael: What’s going on with all this cloning talk?
Brad: Yeah! Anyway, I was reading an article last week on this Chinese pet cloning company, and they announced the birth of the world’s first cloned Arctic wolf, which was carried the termed by an unlikely surrogate. The mother was a beagle.
Michael: Someone go back into the vault and bring out the ding button for what you just said. I heard Chinese pet cloning company, Arctic Wolf, and Beagle. Is that correct?
Brad: All correct, yeah.
Brad: The cloned female wolf puppy, they call her Maya, is from a Beagle mother. It was just announced September 19th of this year.
Michael: So the beagle mom lived out her dream to give birth to a wolf pup someday?
Brad: Apparently so, and apparently this company actually really was specializing, which I didn’t even know, in cloning dead pets such as cats, dogs, and horses for private clients, but the company now wants to use their expertise to help clone endangered species. Another Asian company though, [00:04:00] also believes that they could do something with their knowledge here. They want to be able to clone something, so wooly mammoths can one day be trudging back across the tundra. This other company’s developing this gene editing technology that they’ll be able to take some genetic material from the lost mammoths and the DNA from an Asian elephant, and they’re developing this technology, which is really fascinating. It’s really sophisticated sounding called de-extinction.
Michael: This is a very meta sounding because it sounds like they’re basically cloning the movie Jurassic Park.
Brad: It does that, right? Which made me think if we continue down this path of what you just said, are we going to start developing T-Rex or Velociraptors or all these other dinosaurs? Are we going to start cloning these dinosaurs? Do we as humans need to worry because right now we’re at the top of the species and if we keep going down this path, are we a part of the dinosaur food pyramid?
Michael: Yeah, there’s a lot going on in the world these days, so why not just add [00:05:00] some dinosaurs to it?
Brad: Yeah. Well, Michael, last week we did a podcast with our friend and trial attorney, Mike Lyons, who was actually on the podcast Dr. Death.
Michael: Yes, the Dr. Death podcast, for those who didn’t hear, is about Dr. Christopher Duntsch, aka Dr. Death, who operated on 38 patients in the Dallas area, leaving 31 paralyzed or seriously injured, and two of them dead. Brad, that was so last week. Why are you bringing it up now after spending all this talk on cloning?
Brad: Well, cloning is a form of copying something, right? And apparently a clone can be as harmless as a sheep or as ferocious as an arctic wolf, or maybe one day T-Rex. What if someone wanted to clone Dr. Death or copy what he did to other patients? That would be a scary story, and this is where we’re going to start today.
Michael: Nicely played with the segue there, Brad.
Brad: You’re welcome. Much like the Dr. Death podcast, this one starts with a surgeon in the Dallas Fort Worth area [00:06:00] being accused of being the next Dr. Death, which today I want to call this Dr. Dr. Spine as he’s an orthopedic surgeon who, Michael, believe or not specialize and focused on spine surgeries.
Michael: Okay, well, audience to kind of set the stage, even though this season is on public stories and many articles have been written on this particular physician, we have still changed the names of the parties to give them some protections. Audience, if you google Copycat, Dr. Death and look for articles on the Dallas Morning News and D Magazine, you can find the facts behind this story.
Brad: Yeah, that’s a good point. Well, Dr. Spine became the focus of the Texas Medical Board when a whole bunch of patient complaints started arriving by mail containing acquisitions of medical procedures gone wrong, and unfortunately, he was compared on a local tv news report to Dr. Death, and I’m assuming no one wants to be compared to that and this spine doctor, [00:07:00] again, as Michael said, who had botched all these, and it became really well known cause of that podcast and now TV series.
Michael: Yeah, I’ve heard the expression, no publicity is bad publicity, but I think that might kind of refute that.
Brad: Yeah, yeah.
Michael: That seems like that would be harmful to be called Dr. Death.
Brad: Yeah, that is. So, Michael, let’s do this, for our audience there’s a lot in this story and so to unbundle it a little bit here, there’s a lot of parties, a lot of moving pieces. I mean, we basically would have had to bring out our whiteboard and draw it out, and it’s really hard to do that for those listening. Instead of that, I’m going to try and simplify it a little bit here, and I’m just going to kind of focus on the main parties in this. We obviously have Dr. Spine, who we’ve already mentioned. Dr. X is Dr. Spine’s medical partner in this orthopedic medical practice, then we have X prosecutor. X Prosecutor is a former federal prosecutor and a criminal defense attorney who was hired by Dr. X, this one’s a good one, ex-wife’s boyfriend. [00:08:00] This is the longtime boyfriend of Dr. Spine’s ex-wife, malpractice attorney, a personal injury attorney who handles malpractice lawsuits against physicians including Dr. Spine.
Michael: Let me just say this back to you. Dr. X is his former medical partner.
Brad: I don’t want you to jump ahead, but yeah.
Michael: Well, I’m just trying to… There’s a lot of X’s used, and I’m not jumping ahead, I’m just trying to make sure I understand, so, at the time of the story, they were partners.
Brad: Yeah, that’s correct.
Michael: Okay, got it, and then ex prosecutor at the time of the story, was an ex prosecutor?
Brad: That’s correct.
Michael: Okay, and ex-wife’s boyfriend, she was an ex-wife at the time?
Brad: Yeah, I believe so.
Michael: You have a lot of exes in the names.
Michael: So, the story with the whiteboard conspiracy theories, it feels like something big is developing here.
Brad: Fine, makes sense, all right, so back to your question, I’ll start dropping in our players. Now, as far back in 2001, Dr. Spine and Dr. X were partners in an orthopedic clinic. [00:09:00] In 2008, Dr. Spine co-created a spinal medical device company, which developed cervical plates, screws, and other tools that can be used directly inserted into the body during spine surgery. The start of this device company might have triggered all the unusual activities that are going to happen in the next few years.
Michael: Yeah, and for context, everybody, in 2008 was the heyday of spine surgeons and other orthopedics having their own device companies, and so this was though risky, very common at that time.
Brad: Yeah, so let’s jump to July of 2015. One of Dr. Spine’s patients died on an open table of a heart attack, unrelated to the procedure. Five days after this patient’s death, the Collin County, which is a suburb of Dallas, or medical examiner and district Attorney, received an unusual email from Inspector Gadget. Now, attached this [00:10:00] email was a memo titled “Bad to the bone”. Now, this memo contains statements about Dr. Spine harming patients or performing unnecessary surgeries. The memo also alleged detailed personal information about Dr. Spine’s patients dating all the way back to 2004. Again, we’re in 2015, and there’s information there all the way to 2004.
Brad: Additionally, the patient who died of that heart attack, his widow, also received the memo and a copy of that same email that was sent to the Collin County Medical Examiner, and was left at her family doorstep and again, months later, to no one surprise the widow ended up suing Dr. Spine for a million dollars.
Michael: So, let me just clarify because I believe Inspector Gadget is not a Brad name, that’s actually what was used in this email?
Brad: Correct, yes, this was not a name I made up. This was the actual name of the inspector who gave it, and the actual [00:11:00] name of the memo was “Bad to the Bone”.
Michael: It’s almost like they wanted to be on our podcast.
Brad: I think so.
Brad: That’s a good point. So about a year later in 2016, malpractice attorney lived up to her name and sued Dr. Spine on behalf of three former patients from malpractice claims. These patients allege that Dr. Spine failed to perform the safest surgeries possible. Further around that same time, the Federal Bureau of investigation, the FBI, started to investigate Dr. Spine and the FBI showed up at the home of one of Dr. Spine’s patients, showed him their badges, questioned his patients about Dr. Spine, about his medical device company, which I don’t know why, and any other information the patient wants to share.
Michael: So that’s a double whammy.
Michael: FBI and malpractice all at the same time.
Brad: Exactly. So, in May or in July of 2017, a local Dallas station ran stories comparing Dr. Spine to Dr. Death. This station, including interviews with patients who alleged that Dr. Spine put [00:12:00] profits over patient safety by using all these medical devices that he had created. Further, the pattern of Medical Board complaints continued against Dr. Spine. Several former patients filed complaints against Dr. Spine, and some of which, believe it or not, were in the same local news story. After these news stories, Dr. Spine left the orthopedic practice that he was a partner of with, remember one of his partners was Dr. X,
Michael: So this actually is not a double whammy, it’s not even a triple whammy. This is him getting hit four different ways. So, we’ll summarize. We have the district attorney?
Michael: You got the FBI.
Michael: You got the medical board.
Michael: You got the local news station.
Brad: Sure do.
Michael: And malpractice lawsuits.
Michael: All with eyes on Dr. Spine?
Michael: He must have been eventually arrested like Dr. Death, Right?
Brad: Well, actually, Michael, that’s where the story ends with the comparisons with Dr. Death and Dr. Spine, and [00:13:00] as we’ll learn a copy is not always as it seems. Well, as Dr. Spine started to uncover that someone was pushing people to file all these complaints, Dr. Spine discovered information that he was a target of several individuals. Ready for this one?
Brad: That was when Dr. Spine went on the offense and filed the lawsuits against ex doctor, ex prosecutor, ex-wife, boyfriend, and malpractice attorney. It appeared through court filings and testimonies that all of them are working behind the scenes to go after Dr. Spine. What Dr. Spine did not realize was starting around 2008 or 2009, his partner at the time, Dr. X, was secretly inspecting medical files without any authorization and from these patient files, Dr. X compiled an 181 page notebook. Yes, I said 181 pages, filled with the names and confidential health information of Dr. Spine’s patients.
Michael: Is this where you cue the dun dun dun? [00:14:00] My goodness.
Brad: I bet, Michael.
Michael: It was a lot.
Michael: Okay. Well, not the least of which, which is probably the least of what Dr. Spine’s worries were at the time, but I’m guessing Dr. X didn’t realize that you can’t just go poking around in patient files for no reason without violating HIPAA.
Brad: Probably a pretty good call, Michael. Great point. I never thought I’d say hat tip to Michael for bringing a HIPAA point up.
Brad: Good job, buddy.
Brad: Dr. Spine said in his law lawsuit that Dr. X and X prosecutor went as far as trying to have him investigated by the Federal authorities and alleged they had filed complaints against him with the State Medical Board. Dr. Spine also alleged that Dr. X hired X prosecutor for legal advice on how to handle confidential patient information, and then use this information to report it to authorities. In a sworn affidavit, included in Dr. Spine’s lawsuit, Dr. X actually admitted giving the notebook to x prosecutor with instructions to only release it [00:15:00] to the relevant federal authorities. Instead, Guess what? Malpractice attorney testified that she received a list of patients from ex prosecutor.
Michael: This is unraveling quickly.
Brad: Yes. Furthermore, ex-wife’s boyfriend posed as a federal agent, and as, I’m going to quote this, as a personal vendetta by one and a conspiracy by all four, to unlawfully steal patient records according to Dr. Spine’s lawsuit, including using the alias, come on, you guess it…
Michael: Inspector Gadget.
Brad: And providing this confidential patient information to the District Attorney. The patients represented by malpractice attorney’s names were also believe it or not, in the Notebook, and eventually malpractice attorney’s patient’s lawsuits against Dr. Spine were dismissed. It was all from a whole bunch of different reasons, but her lawsuits didn’t do well.
Michael: “Bad to the bone” backfired.
Brad: I guess so, Michael. So in the lawsuit that was alleged that when Dr. Spine started pushing back, malpractice attorney and ex-wife boyfriend wanted to attract [00:16:00] some publicity to the cause. So, Michael, guess what? Dr. Spine’s lawsuit claims that malpractice attorney or ex-wife’s boyfriend, or both of them, they provided local TV rapport with the information based on all these forged documents. Furthermore, Dr. Spine couldn’t defend himself because he needed permission to be interviewed about these patients to public disclose their information, and guess what? He was never granted permission.
Michael: So he followed HIPAA and it didn’t work.
Michael: Dr. X did not.
Brad: I guess not.
Michael: And it worked initially, but it’s not looking good for him right now.
Michael: So, what happened with the lawsuit?
Brad: Well, it was a four day trial against ex-wife’s boyfriend and the malpractice lawyer. It resulted in a jury decision in Collin County that basically awarded Dr. Spine almost 11 million in damages, a verdict that he believes hopefully clears his name. The verdict, as you can imagine, is being appealed and is not set for trial yet, as far as what’s going to happen with this, but the jury [00:17:00] decided, and in terms that ex-wife boyfriend was responsible for 30% of the monetary damages while Dr. X was listed for 35%, malpractice attorney, 20%, and X prosecutor at 15%. Audience members, to be clear, Dr. X and x prosecutor were no longer parties at the lawsuit, so any of these funds that have been deemed towards them, that they won’t have to pay any of that.
Michael: Yeah, I mean, I don’t know what happened here, but just based on the past, there’s something procedural that probably happens commonly when parties settle, then they won’t be part of the lawsuit, especially since they got tagged part of their responsibility. There could have been something else procedural, I suppose.
Brad: Yeah, and I don’t know. So, what we’ve learned is Dr. Spine confirmed that on his own investigation that 421 of his patient files were illegally accessed by Dr. X, By tracking them through Dr. [00:18:00] X’s login. He took these findings and Dr. Spine, actually gave it to the Office of Civil Rights, who actually is in the parties that are supposed to enforce HIPAA breaches. This person that started all this, let’s go back to Dr. X, according to the lawsuit, was actually terminated from his medical practice where they’re partners, and Texas State Records show that Dr. X’s Texas medical license was canceled on March 31st, 2022.
Brad: Dr. Spine said he took a huge financial hit from these TV stories, and he estimates the hit around 10 million because according to the trial exhibit, he lost over 200 procedures due to cancelations.
Michael: Man, I don’t know anything about Dr. Spine in real life, but you can’t help but just feel for him. I mean, that is a horrific story to go through. It was all concocted. Let’s [00:19:00] pause. Let’s go to commercial, Brad, and maybe on the other side, let’s kind of unpack that and kind of just the risk that comes with being a business owner.
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Brad: Welcome back to Legal 123s with ByrdAdatto. I’m your host, Brad Adatto, with my co-host, Michael Byrd. Now Michael, this season we have been concentrating on OPP stories and man has this been one, right? We’ve got a guy, Dr. Spine, who it appears that there is [00:20:00] a cabal of people who just really didn’t like him. As you said, I don’t know him, you don’t know him, but it seems like a pattern of a lot of wrong stuff happening to him. You said this right before we went to commercial. For audience members, whether or not you’re a physician or you’re just a business owner, there’s just risk being out there in the spotlight.
Brad: The moment you put the tag owner, there’s some risk that goes with it. The moment you being a physician, there’s a tag of this risk going with it. In some cases, as a lot of people know, you might not have done anything wrong, but that’s just the risk tolerance of getting up in the morning, getting outta bed and being part of society, right? So a lot of times people want to know, what are the things I should consider when it comes to like mitigating my risk? And I think, before we jump into that piece of that is just understanding that this Dr. X story is a perfect example. I mean, Dr. Spine and Dr. X story is a perfect example [00:21:00] of Dr. X believing Dr. Spine was doing something wrong. He basically opened up Pandora’s Box on himself by jumping into an internal investigation, which led to A, B, C, D, E, F, and G, which leads to the whole story, right? That’s that whole Pandora’s Box moment. Well, how can I, as a physician or an entrepreneur, find ways to kind of protect myself? What is the first line of defense that I need to start thinking about? So, for our audience members, understand that in some states you will have certain protections out there. There’ll be rules and regulations that will help minimize when someone can try to sue you. Or in some cases, if they do sue you, what kind of damages can they take from you? So that’s all state driven, as for those protections on the malpractice side or business side; we’ve mentioned this word already this season, Torts. But that’s where it comes from. Then this is why you carry insurance, right? That’s that next layer of protection that you can kind of, you put in place. That layer really is, you know, do I have [00:22:00] insurance for my business? Do I have insurance on my car? Do I have an umbrella insurance? And of course, if you’re a practicing physician, what type of, professional liability insurance do I carry? All those are, again, layers to protect you, from these types of circumstances. And then finally, you know, this is where you start doing the math of, do I practice by myself? Am I a solo or do I incorporate a business? And have a whole bunch of business succession planning and business structures to help protect me by wrapping myself up inside of some type of corporate planning. All those latest described between your state, your insurance and court planning are just different layers you can put in place, Michael.
Michael: Yeah, and I’m just taking that baton and carrying it a little bit further, you start talking about structure and planning in conjunction with this risk, and there’s a couple of different ways to think about the planning that can go with that. You have kind of risk planning, which is every activity that you do carries some sort of [00:23:00] risk.
Michael: So if you are a surgeon, there’s a risk that goes with that.
Michael: If you, and just using this story, if you have a medical device company, there’s a risk that goes with that. Now, I’m going to just suspend reality about healthcare compliance and all of that for a moment, just for sake of focusing on asset protection and risk planning and your structure and say, Well, it may make sense to have your device company be in a separate entity and your medical practice being a separate entity because there’s two different lines of attack that could come there, so if something goes wrong with the medical device company, you don’t want something to happen to your medical practice.
Michael: You see this in real estate all the time. A real estate company may have 30 pieces of property and 30 different LLCs…
Michael: Because they don’t want, if one of their properties is not a good investment, for the other ones to be impacted by that, so it’s a separation of [00:24:00] risk…
Michael: Type strategy…
Brad: Or diversifying your risk.
Michael: Yeah, exactly. Then, the next kind of thing to consider is what to do with your assets both personally and professionally.
Michael: So, We have some clients who recognize that if they’re operating a medical practice, that is a very risky proposition. They have patients and employees that are going through there.
Brad: Sometimes partners.
Michael: Yes, sometimes partners, like Dr. X. Good point, Brad, and they may have some valuable assets and they may form an equipment company or an MSO or something on the business side to separate the assets into an entity that is not active and doesn’t carry its own risk from the risky activity. There’s actually, on the business side, some planning that goes well then you can take it even a step further [00:25:00] and on the personal side, what kind of planning, and you hear the term asset protection planning. How do you, if you’re a doctor and you have personal liability for malpractice beyond obviously your insurance, as you mentioned earlier, what happens if you get a judgment personally, How do you get protected on that? And so people will put their, quote, non-risky assets or their passive assets into some sort of vehicle that’s separate and apart from their personal, you know, account. Their individual name. And so it’s. People will intuitively be like, Well, yeah, sign me up for that. And there are some considerations that go into doing this correctly. And so a lot of times I’ll talk to people about kind of the spectrum of asset protection planning and understand that like, you know, if you have a spectrum from 1-10[00:26:00] is you’ve done nothing other than have the protections afforded by the state laws that you mentioned and maybe even have some insurance. You’re at a one, and then 10 is you’ve done the most aggressive thing you can do. You’re offshore and a trust and have all the bells and whistles that go with it. Then you go from 1-10. Kind of what one of the key factors that’s happening is you’re giving up control over those assets.
Brad: Yeah, and it does complicate because there’s so many different moving parts.
Michael: Yes. It gets complicated, it gets expensive, and you lose control.
Brad: Oh, yeah. It is expensive.
Michael: Yes, and so, finding that sweet spot for your wrist profile, which I know you have a phrase. Go ahead. Tell the audience, the airplane.
Brad: Yes. Everyone has different wrist tolerance. Some people are afraid to step out of the shower in the morning and other people will jump out a perfectly good airplane.
Michael: Yes, and so finding that sweet spot is important there. I mean, I have some clients [00:27:00] who, you know what? I’m in Texas. I’ve got malpractice insurance. I’m good to go. I’m not going to sweat it. Then, some are like, No, I really am. It’s worth it to me to set aside some of these assets. You see that actually more commonly in Florida, which is super risky. And then commonly, people tend to be in the middle. You’ll find people that form family-limited partnerships and stuff like that to where, you know, it’s separate, but it’s accessible if it’s a rainy day. How about you, Brad? Any final thoughts?
Brad: Yeah, I mean, I think you brought up a lot of good points. I mean, we’re going back to a story of someone who’s trying to grow his practice and scale, and find ways to look at other ancillary revenues, and so by any means, we’re not saying to our audience that you shouldn’t consider that. As you add new elements to your business or as a physician, add other ancillaries, just understand that[00:28:00] besides the compliance, which we didn’t talk about in this episode, is making sure that you understand how that impacts you from your profile, as you call it, or your risk tolerance, as I say. Just keep that in mind because it can be a great asset and it can be something to help you, but be very careful as to how you implement it.
Michael: Yeah, and Dr. Spine had some bad luck. I mean, this is going back to your cloning story, he was the arctic wolf that was trying to clone from a doctor death, which was a high-profile national story that also happened to be right here in our backyard, and so it was really bad timing. You know what? We don’t even know. He may have had good planning in place. With his structure, and when you start thinking that he was just sitting there minding his own business and that happened to him, you want to have some defenses in place cause you may not get that $11 [00:29:00] million judgment at the end of the day, and it could be you being on defense mode the entire time.
Brad: Absolutely. Well, all great points, Michael, next Wednesdays show we’ll discuss another OPP or other people’s problems, MSOs Breaking Bad with Jay Reyero.
Outro: Thanks again for joining us today, and remember, if you like this episode, please subscribe, make sure to give us a five-star rating and share with your friends. You can also sign up for the ByrdAdatto Newsletter by going to our website at ByrdAdatto.com. ByrdAdatto is providing this podcast as a public service. This podcast is for educational purposes only. This podcast does not constitute legal advice, nor does it establish an attorney client relationship. Reference to any specific product or entity does not constitute an endorsement or recommendation by ByrdAdatto. The views expressed by guests are their own and their appearance on the program does not imply an endorsement of them or any entity they represent. Please consult with an attorney on your legal issues. [00:30:00]