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AAOS Now

Published 12/1/2012
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David H. Sohn, JD, MD

Medical Liability and Orthopaedic Residents

Case law could hold residents, attending physicians, and hospitals liable

A civil suit seeking monetary compensation for medical negligence is based on the four elements of duty, breach of duty, causation, and damages. Failure to prove any of these will lead to dismissal of a case.

But what happens when a patient is treated by a resident physician and never actually sees the attending physician supervising the resident? Does the attending physician have a duty toward the patient whom he or she has never met? What if a fatigued resident hits a motorist while driving home? Does the hospital have institutional liability for allowing the resident to drive?

Courts are increasingly showing a willingness to consider claims that stretch the normal definitions of negligence. In so doing, they are increasing the liability exposure of physicians in supervisory roles. This article will present several cases to illustrate the liability of residents, the attending physicians who supervise them, and the graduate medical education programs that train them.

The resident’s liability
Resident physicians are licensed physicians participating in postgraduate training so they may practice in their chosen field. It is a myth that residents are not often sued; data suggest that resident physicians are named in roughly 22 percent of all claims.

When sued, residents are generally held to the same standards as fully licensed physicians, especially in cases where residents fail to disclose that they are still in training. Some state-to-state variation, however, does exist. In Pennsylvania, for example, residents are held to the standard of care of the average resident in training, rather than to that of a fully licensed physician. Thus, an orthopaedic resident applying a cast is held to a standard above that of a general practitioner, but below that of a fully licensed orthopaedist.

This does not mean, however, that residents have immunity. Even though malpractice coverage would protect the resident from having to personally pay for a claim, the verdict or settlement would be permanently recorded in the National Practitioner Data Bank. Future malpractice rates, future licensure, and future privilege grants at hospitals would all be affected by these records.

Chief residents, who regularly supervise junior residents, may also be held liable for the actions of their charges. Under the legal concept of vicarious liability, one party may be held liable for the actions of those under their control.

In Hammonds v. Jewish Hospital, for example, the chief resident was found negligent even though it was the junior resident who failed to convey the chief resident’s explicit instructions on a timely basis. Although the chief resident argued that no physician-patient relationship existed and thus, no duty was owed, the appellate court disagreed, stating that the defendant “owed a duty of care to Plaintiff” because the junior resident was “under his supervision and control.”

The attending physician’s liability for residents
Attending physicians may also be vicariously liable for the actions of their residents. In Rockwell v. Stone, an anesthesia resident who was attempting to inject sodium thiopental missed the vein, resulting in vascular injury and eventual amputation. The chief of anesthesiology was found vicariously liable due to his role as supervisor.

Some limits to this concept can be found, however. As the sphere of control diminishes, so too does the attending physician’s vicarious liability. For example, in Shull v. Schwartz, a resident physician who performed an aspiration on a patient in the ward instead of in the operating room under the direct supervision of the attending physician negligently left a needle tip in the patient. Although the attending physician had directed the resident to perform the procedure, the court concluded that the resident in this capacity was not directly under the control of the attending physician, and no vicarious liability existed.

Similarly, vicarious liability is less likely to be found when the attending physician is an employee of a large institution, rather than a private attending physician. In such cases, the institution is more likely to be considered the controlling entity.

If the resident is performing simple tasks that he or she can be reasonably expected to perform without supervision, the attending physician may not be held liable for errors. For example, courts have found that it is appropriate practice for an attending physician to leave the operating room while a resident sutures skin. An error made by the resident during this procedure is solely the resident’s responsibility.

What if the attending physician never meets or is never called about a patient? Under such a scenario, the resident sees a patient, delivers negligent treatment, but never alerts the on-call attending physician about the patient. Would the attending physician be liable? Under the traditional concept of negligence, the likely answer is “no” because no physician-patient relationship exists, and therefore no duty is owed. In these scenarios, however, some plaintiffs have alleged an alternate form of liability—a failure to supervise.

Court decisions in such situations have been mixed. In some cases, courts have found that on-call agreements may be sufficient to establish a patient-physician relationship and a subsequent duty to supervise. In other cases however, different conclusions have been reached.

In one case, the plaintiff argued that the on-call physician should pre-emptively contact the hospital to see if any cases might require his presence, even though this is not customary practice. The jury, however, explicitly stated that passive “home call” might not be adequate supervision, but also declined to say that this is negligence per se.

As a result, case law still has not established a definition of “adequate supervision.” Clearly, however, courts are willing to consider attending physicians liable for the care rendered by residents, under both vicarious liability and failure-to-supervise theories.

Institutional liability
Hospitals and teaching institutions may face both direct and indirect forms of liability for the actions of their residents. Institutions are held vicariously liable for the actions of the resident physicians acting in the scope of their employment. Thus the hospital is liable if a resident negligently delivers medical care, but not if he or she gets into fights, is accused of sexual harassment, or commits fraud because these actions are not “within the scope of employment.”

One notable recent exception to this rule is the claim of “resident fatigue.” When an intern fell asleep while driving after a 36-hour shift and hit another motorist, the plaintiff sued the hospital for negligence, claiming that it should have known the resident would be impaired after such a long shift. The trial court dismissed the claim on the basis that no duty existed between the hospital and the motorist, and the appellate court upheld the decision. The appellate court agreed, however, that “hospitals know, or reasonably should know, that there is a high percentage of residents who fall asleep behind the wheel of a car after leaving work.”

A similar case eventually led to the 80-hour work week limit for residents. Libby Zion, an 18-year-old college freshman died of cardiac arrest 9 hours after her admission to a New York hospital with fever and flu-like symptoms. She was initially treated by two residents, one of whom was working a 36-hour shift. Although the investigation found the errors in care to be due to poor judgment rather than fatigue, the resident fatigue issue became the focal point for both a medical liability suit and an investigation by the New York State Health Department (NYSHD). The lawsuit resulted in a $750,000 verdict for the family, and the NYSHD fined the hospital $13 million for the way medical residents were trained. This eventually led to the “Libby Zion Law,” which established an 80-hour work-week limit.By 2003, the Accreditation Council on Graduate Medical Education had incorporated work week limits into its guidelines.

Summary
Resident physicians can be and are regularly sued for medical malpractice. When sued, they are generally held to the standard of care of a fully trained physician.

Attending physicians may be held vicariously liable for care rendered under their direct supervision as well as for failure to supervise residents—even for patients they have never met or heard about—in part depending on the nature of the on-call agreement. Definitions of how much supervision is necessary have not been established.

Institutions may also be liable for the actions of the residents they train. Resident actions within the scope of employment are a source of vicarious liability. But resident fatigue resulting in injury outside the scope of employment may also trigger institutional liability.

The following steps should be taken to limit resident liability and institutional liability for residents:

  • Residents should disclose their in-training status and should staff cases as indicated with their attending physicians.
  • Institutions should comply fully with work restriction guidelines aimed at preventing resident fatigue.

David H. Sohn, JD, MD, is a member of the AAOS Medical Liability Committee and editor of the Orthopaedic Risk Manager. He can be reached at bonedock@comcast.net

Editor’s Note: Articles labeled Orthopaedic Risk Manager (ORM) are presented by the Medical Liability Committee under the direction of David H. Sohn, JD, MD, ORM editor.

Articles are provided for general information and are not legal advice; for legal advice, consult a qualified professional.

Email your comments to feedback-orm@aaos.org or contact this issue’s contributors directly.

References

  1. Kachalia A, Studdert DM. Professional liability issues in graduate medical education. JAMA 2004; 292: 1051-6.
  2. King JH. The standard of care for residents and other medical school graduates in training. Am Univ Law Rev 2006; 55: 683-751.
  3. Jistarri v. Nappi, 549 A2d 210. Pa SuperCt 1988.
  4. Hammonds v. Jewish Hosp, 899 S.W. 2d 527. Mo. Ct. App. 1995.
  5. Rockwell v Stone, 173 A.2d 48. Pa. Super 1961.
  6. McCullough v. Hutzel Hospital, 276 N.W.2d 569. Mich. App. 1979.
  7. Shull v. Schwartz, 73 A.2d 402. Pa 1950.
  8. Richardson v. Denneen, 82 N.Y.S.2d 623. N.Y. Super. 1947.
  9. Lownsbury v. VanBuren, 762 N.E.2d 354. Ohio 2001.
  10. Prosise v. Foster, 544 S.E.2d 331. Va. 2001.
  11. Mozingo v. Pitt County Memorial Hospital, 415 S.E.2d 341. NC 1992.
  12. Brewster v. Rush Presbyterian-St. Luke's Medical Center, 836 N.E.2d 635. IL.App. 2005.
  13. Berlin L. Liability of the sleep-deprived resident. AJR Am J Roentgenol 2008; 190: 845-51.