Know facts about liability of residents, attendings
Lawyers will sue all involved
Staci Kusterbeck, Contributing Editor
An ED attending physician discharged a mutual patient prematurely and inappropriately while the resident was involved with another patient. A resident claims he was "just following orders" that led to an adverse outcome. Who will be named in these ensuing malpractice cases?
As a general rule, the answer is "both." "Plaintiffs attorneys will take the path of least resistance and most dollars in almost any medical malpractice case," says Monte F. James, head of the medical malpractice section for Texas-based Jackson Walker.
In general, plaintiff's attorneys want to incorporate as many parties as possible to get at more insurance money, says Rice. "So they never want to leave anybody out, unless there is a specific reason that helps their case to leave them out," says Matthew M. Rice, MD, JD, FACEP, chief medical officer at Northwest Emergency Physicians of TeamHealth in Federal Way, WA.
Attending physician most vulnerable
Generally speaking, the most vulnerable individual is going to be the attending physician, because he/she is always going to be seen as supervising the resident, says Rice. While a resident may not be liable if his/her name isn't anywhere on the patient's chart, an attending physician will probably be named even if he/she wasn't directly involved in the case but one of the residents the attending physician was supervising was involved, he explains.
Even if the resident is the one who made the mistake, the plaintiff's attorney will focus attention on the attending physician's failure to properly monitor and train that resident, says James.
A possible exception to this rule: If the resident is performing skills within his/her scope of practice, and did not require by policy or national standards to have direct supervision at the time. For example, if the resident is placing an intravenous catheter in a patient's arm and it perforates a nerve and results in nerve damage, the resident would probably be sued. But you could argue that the attending physician should not be included in this case because it is a common task not requiring supervision. "But would you get the attending physician dismissed? Probably not." says Rice.
The plaintiff's attorney still would involve the attending physician on the grounds that he/she should have been supervising that resident, says Rice. "Whether they can include them or not would be worked out in the initial process of litigation. The request by the attending physician that they be dismissed—if they didn't know about the case and there's nothing that suggests they should have—is a legal battle."
A competent plaintiff's lawyer will be able to shift the blame to whichever physician is advantageous for the case, says James. "If the attending physician does not have good insurance coverage, the lawyer will focus more on the resident, and vice versa," he says.
A common tactic is to ask the attending physician dozens of questions about the patient's condition. When the attending physician inevitably admits being unaware of several items, he/she will ask whether anything would have been done differently if all the facts were known.
"A lot of times the physician will be honest and say 'Yes, if I knew all that, I would have done something differently,'" says James. "So at that point, it puts the resident back in the hot seat for not fully informing them."
Just following orders?
If a resident claims he/she wasn't negligent because he/she followed the advice of the attending physician, the resident would probably not be dismissed from the case, but this is a legitimate defense, says James. "They could certainly defend the case by saying 'I'm a lowly resident and did exactly what my attending told me to do.' That's something the jury will have to decide."
Is "I was just following orders" ever a valid response from the resident? Only to a certain extent, says Rice. "A resident should have some ability to think about what they are being asked to do, and question it if they think it's wrong," he says. "Although the captain of the ship is ultimately responsible, you still want to include the members of the crew."
The difficulty then becomes how to keep the resident from becoming a witness against the attending physician. "For example, if the resident says 'I didn't know if it was right or not, but I did it because the attending physician told me to', then the resident would be a witness against the attending if things don't turn out right," says Rice. "Although that may be accurate, it is not a logical defense from a purely legal point of view."
The resident could ask to be dismissed from the case on the grounds that the final care was provided by the staff physician, but the chances would be slim unless the resident never saw the patient, says Rice. If the resident is dismissed and information later comes up involving that resident, the lawyer might have a difficult time getting him reinstated as a defendant, he explains. "It's much easier just to keep them in than to dismiss them and then try to reinclude them," says Rice.
Residents may fall under sovereign immunity, but that will depend on whether the resident's training program is affiliated with the state in some respect, such as a city or county-owned hospital, says James. If the resident is a member of a private training facility, then sovereign immunity would not apply. However, if the resident comes from a public entity but goes to a private facility to practice, plaintiff attorneys will allege legal theories, such as joint venture, to attempt to make the private entity liable for the resident's activity. "They are trying to get around sovereign immunity, and it's something you see in all 50 states," says James.
To protect residents from liability exposure, you can provide written notices to patients that the resident's independent medical judgment is limited to what the training physician ultimately allows. "You can put that in writing and have the patient sign. That would not get the resident dismissed, but it would go a long way in proving that the resident was not negligent, assuming the attending's orders were followed," says James.
An ED attending physician discharged a mutual patient prematurely and inappropriately while the resident was involved with another patient. A resident claims he was "just following orders" that led to an adverse outcome.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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