American College of Physicians: Internal Medicine — Doctors for Adults ®


Steering clear of malpractice

A guide to understanding when residents are--and are not--at risk for negligence

From the June 1995 ACP Observer, copyright 1995 by the American College of Physicians.

By Edward Doyle

ATLANTA--Many residents may think that because they are still in training they are not as vulnerable to malpractice lawsuits as are attendings and other more experienced physicians. But according to Lee J. Dunn Jr., JD, nothing could be further from the truth.

Mr. Dunn, a Boston-based health care attorney, told residents at an Annual Session workshop on legal issues for house officers that when it comes to patient care, the law holds housestaff responsible for their actions. "There is absolutely no difference between the legal relationship you have with your patients and the legal relationship between your attendings and their patients," he said.

But the threat of a lawsuit does not have to be one more item on an already long list of worries for housestaff, Mr. Dunn said. He explained that residents who have a basic understanding of malpractice law can generally steer clear of legal trouble and minimize the chance that they will find themselves on the wrong end of the law.

Defining negligence

For a basic understanding of malpractice law, residents need to start with the legal definition of negligence, which is at the heart of most malpractice lawsuits. The easiest way to remember what legally constitutes negligence, Mr. Dunn said, is to remember the four "Ds":

  • In order to be found guilty of negligence, a physician must first have a duty to the patient, which is to comply with the standard of care in his care of a patient;
  • There must be a dereliction or breach of that duty.
  • The patient must suffer damage.
  • The physician's actions must be the direct cause of that damage.

Standard of care is typically defined as what any other ordinary and reasonable similarly trained physician would do in similar circumstances. Under the legal definition of standard of care, physicians are not required to perform perfectly, only like any other average physician under the same circumstances. Consequently, residents are expected to perform with the same expertise of other residents, and not seasoned physicians. This means they don't have to practice medicine with the same expertise as their attendings.

In addition, Mr. Dunn noted that residents are commonly left out of malpractice lawsuits because plaintiffs prefer the deep pockets of hospitals and other institutions to compensate them for their injuries. But that doesn't mean that residents are off the hook legally. Mr. Dunn cited one case in which two ob-gyn residents ignored a radiologist's recommendation to perform an immediate C-section on a late-term patient. While an experienced physician might reasonably make such a call, Mr. Dunn said that the residents did so without ever consulting the attending physician and thereby violated the standard of care for housestaff. After the baby was born with cerebral palsy, the residents were named in a $15 million malpractice suit that the family eventually won.

When you least expect it ...

You're probably thinking that you would never make such a major decision without first consulting another physician, but Mr. Dunn said that housestaff can all too easily find themselves in similar circumstances. He pointed out that when moonlighting, for example, residents are often expected to provide care for patients and treat conditions they have not handled before in their training.

In another case, a first-year family practice resident working in a neonatal ICU unit was caring for a critically ill infant late one Friday. He called the attending and explained that he had never cared for such a sick child, but the physician refused to come in until Monday and helped the resident only via telephone. The infant's condition worsened, and the parents later received a huge malpractice verdict.

The resident was not named in the lawsuit, Mr. Dunn said, because he told the attending that he did not have enough experience to care for the infant. And while the resident was not joined as a defendant, Mr. Dunn said that the case illustrates the legal perils of moonlighting, particularly when the hospital or employer doesn't provide adequate backup. "There are dangerous emergency rooms to work in," he explained, "and some are more dangerous than others. If you're going to be left all by yourself, it might be better not to work there."

These two examples raise an important question for residents: How much responsibility do attendings have for the actions of housestaff? Why, for example, were the ob-gyn residents, but not the family practice resident, named in a lawsuit? And why was the attending in charge of the neonatal ICU held responsible for his resident's actions?

Mr. Dunn explained that attendings are not legally responsible for the actions of residents unless they know or have reason to know that those individuals are violating the standard of care. He said the same is true of housestaff working with other health care providers such as nurses and pharmacists; residents are not responsible for others' actions unless they know or should have known that those individuals are violating the standard of care. "You [physicians] are not presumed to have eyes in the back of your head or to know everything that is going on in your hospital," Mr. Dunn explained. "If people screw up and you had no indication that they were in the process of screwing up, you're not liable."

Just as attendings generally have no legal responsibility for the actions of housestaff, residents are generally not liable for the actions of their attendings. Mr. Dunn explained that when residents disagree with an attending's actions, they should make their disagreement known. They will not generally be held liable then. "Once you've brought it to the attending's attention," he said, "you're pretty much off the hook." Document such disagreements in a diary of personal notes, out of the chart. Minor differences of opinion may be documented by noting in the chart that the attending's recommendations were his or hers.

But what if a resident knows that an attending's decision will directly harm a patient? According to Mr. Dunn, the law would hold the resident responsible only if an ordinary and reasonable resident in similar circumstances would similarly recognize the harm to the patient. Mr. Dunn suggested taking action. "If you know that doing this procedure or administering this medication would be directly detrimental to this patient's health," he said, "stop."

The consent conundrum

Another potential area of legal trouble, particularly for residents working in emergency rooms and ambulatory environments, is consent. Under the law, patients have to give their consent before being treated by a physician. Patients can give consent either by signing a consent form (known as express consent) when required for a specific procedure, or informally by coming to a physician for treatment (known as consent that is implied in fact). In emergency situations, consent is implied in law.

The situation gets complicated, however, when patients are unable to give consent because they are injured, incompetent to make their own decisions or minors. In all situations, however, medical necessity takes precedence. "The law presumes that a competent, lucid adult would consent to the degree of care necessary to preserve life and health," Mr. Dunn said. "Therefore, if the patient is incapable of giving that consent because he or she is comatose or a minor or in some way disabled, then you can go ahead and provide the level of care that is necessary in order to maintain life and health."

Mr. Dunn said informed consent can be an issue for residents working in emergency rooms and ambulatory clinics. For example, intoxicated patients who refuse treatment present a problem. Mr. Dunn said such patients can be treated because they are incompetent to make their own medical decisions and medical necessity takes precedence.

Competent patients are free to refuse care, and some do so based on religious beliefs. But Mr. Dunn noted that while the law protects patients' freedom of religion by permitting them to deny care for themselves, this protection is not generally extended to their children. "There is the presumption that the child, like most other human beings, would choose that degree of care necessary to maintain life and health," Mr. Dunn explained. "So if you have an adult saying that this child shares my religious beliefs and therefore doesn't get blood derivatives, you can go ahead and treat." (To be safe in such borderline situations, however, Mr. Dunn said that hospitals should have arrangements with a local judge who can quickly grant legal authority to treat patients.)

Consent is one issue; informed consent is another. Most informed consent laws require physicians to tell patients whatever an ordinary and reasonable physician would disclose in similar circumstances. But a growing number of states are changing the law to require that physicians disclose what an ordinary and reasonable patient would want to know in order to make an informed choice. Know your state's law.

The issue of informed consent scares residents and experienced physicians alike, but Mr. Dunn said that in most cases a little communication goes a long way. "My personal experience is that physicians who communicate well with their patients never have an informed consent problem," he explained. "The physician who gets hit with an informed consent case is the doctor who sees the patient maybe once before the procedure or surgery and once afterwards to make sure the bill is correct, but otherwise never sits down and talks to the patient."

Another issue is patients who want to leave the hospital against medical advice. Mr. Dunn said that as long as patients are deemed competent, they are responsible for their decisions to accept or deny treatment. And if a patient refuses treatment and also refuses to sign paperwork acknowledging that he is leaving against advice, Mr. Dunn suggested simply making a note in the chart that the patient refused to sign. "It's probably ill-advised to make that person sign anything," Mr. Dunn said. "Let him go, and make some kind of record to protect yourself."

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