House Staff Liability

Question: The on-call resuscitation team, consisting of a supervising medical resident and an intern, was unsuccessful in its attempt to intubate the patient. The senior resident had performed only one prior intubation, and the intern none at all. No anesthesiologist or nurse anesthetist was in-house. It was subsequently discovered that moments before the arrest, the patient had erroneously received an antibiotic to which he was known to be allergic. In a lawsuit for wrongful death, which of the following statements is best?

A. Contrary to popular belief, lawsuits against resident physicians (house staff) are rare, with fewer than 100 cases reported to the National Practitioner Data Bank.

B. There is definite liability here, with the iatrogenic incident being caused by a medical error.

C. If a lawsuit is brought after completion of training, liability then attaches to either the resident or his or her new insurance carrier.

D. The hospital is liable, as it should always have someone in-house who is skilled in this lifesaving procedure.

E. Inexperience does not necessarily mean the applicable standard of care is lowered to that of a medical trainee.

Answer: E. Choice A is incorrect. Lawsuits against house staff are not rare, and resident physicians are regularly joined as codefendants with their supervisors who are typically medical school faculty or community practitioners admitting patients to “team care.” By the end of 2006, the National Practitioner Data Bank had catalogued 1,832 residents as having had at least one adverse malpractice claim (National Practitioner Data Bank: 2006 Annual Report. Available at www.npdb-hipdb.com. Accessed May 17, 2010). Choice B is incorrect because the legal cause is unproven, and the facts are insufficient to impute the cardiac arrest to medical error.

On the issue of insurance coverage, the Accreditation Council for Graduate Medical Education requires graduate medical education programs to insure their trainees for “claims reported or filed after the completion of graduate medical education if the alleged acts or omissions of the residents are within the scope of the education program.” Thus, residents are covered for acts or omissions during their training period, irrespective of when the claim is brought (so-called “tail coverage”). However, should a resident moonlight or be employed outside of the training program, the resident should either purchase separate professional liability insurance or have the employer provide such insurance, including tail coverage (AJR Am. J. Roentgenol. 1998;171:565-7).

Choice D is also incorrect. Having an in-house anesthesiologist or nurse-anesthetist may represent good hospital policy, but it is not a community or legal standard at this time.

The best choice is E. Although still acquiring the skills toward certification, trainees remain individually responsible for their actions. But should the law demand the same standard of care as it would a fully qualified attending physician? The courts are split on this question (JAMA 2004;292:1051-6). Some have favored a dual standard of conduct, with trainees being held to a lower standard of care. This was articulated in Rush v. Akron General Hospital, which involved a patient who had fallen through a glass door. The patient suffered several lacerations to his shoulder, which an intern treated. However, when two remaining pieces of glass were later discovered in the area of injury, the patient sued the intern for negligence. The court dismissed the claim, finding that the intern had practiced with the skill and care of his peers with similar training: “It would be unreasonable to exact from an intern, doing emergency work in a hospital, that high degree of skill which is impliedly possessed by a physician and surgeon in the general practice of his profession, with an extensive and constant practice in hospitals and the community” (Rush v. Akron General Hospital, 171 N.E.2d 378 [Ohio Ct. App. 1987]).

However, not all courts have embraced the dual standard of review. In a recent case out of New Jersey, the Superior Court held that licensed residents should be judged by a standard applicable to a general practitioner, as any reduction in the standard of care would set a “problematic precedent” (Clark v. University Hospital, 914 A.2d 838 [N.J. Super. 2006]). In this case, the residents allegedly failed to reinsert a nasogastric tube, which caused the patient to aspirate.

Should the applicable standard for a resident physician be even higher? In Pratt v. Stein, a second-year resident was judged by a specialist standard after he had allegedly administered a toxic dose of neomycin to a postoperative patient, which resulted in deafness. Although the lower court had ruled that the resident should be held to the standard of an “ordinary physician,” the Pennsylvania appellate court disagreed, reasoning that “a resident should be held to the standard of a specialist when the resident is acting within his field of specialty. In our estimation, this is a sound conclusion. A resident is already a physician who has chosen to specialize, and thus possesses a higher degree of knowledge and skill in the chosen specialty than does the nonspecialist” (Pratt v. Stein, 444 A.2d 674 [Pa. Super. 1980]).

However, a subsequent decision from the same jurisdiction suggests a retreat from this unrealistic standard. An orthopedic resident allegedly applied a cast with insufficient padding to the broken wrist of a patient. The plaintiff claimed this led to soft tissue infection with Staphylococcus aureus, with complicating septicemia, staphylococcal endocarditis, and eventual death. The court held that the resident’s standard of care should be “higher than that for general practitioners but less than that for fully trained orthopedic specialists. ... To require a resident to meet the same standard of care as a fully trained specialist would be unrealistic. A resident may have had only days or weeks of training in the specialized residency program; a specialist, on the other hand, will have completed the residency program and may also have had years of experience in the specialized field. If we were to require the resident to exercise the same degree of skill and training as the specialist, we would, in effect, be requiring the resident to do the impossible” (Jistarri v. Nappi, 549 A.2d 210 [Pa. Super. 1988]).

Dr. Tan writes the “Law & Medicine” column, which regularly appears in Internal Medicine News, an Elsevier publication. He is professor of medicine and former adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, “Medical Malpractice: Understanding the Law, Managing the Risk” (2006).

Question: The on-call resuscitation team, consisting of a supervising medical resident and an intern, was unsuccessful in its attempt to intubate the patient. The senior resident had performed only one prior intubation, and the intern none at all. No anesthesiologist or nurse anesthetist was in-house. It was subsequently discovered that moments before the arrest, the patient had erroneously received an antibiotic to which he was known to be allergic. In a lawsuit for wrongful death, which of the following statements is best?

A. Contrary to popular belief, lawsuits against resident physicians (house staff) are rare, with fewer than 100 cases reported to the National Practitioner Data Bank.

B. There is definite liability here, with the iatrogenic incident being caused by a medical error.

C. If a lawsuit is brought after completion of training, liability then attaches to either the resident or his or her new insurance carrier.

D. The hospital is liable, as it should always have someone in-house who is skilled in this lifesaving procedure.

E. Inexperience does not necessarily mean the applicable standard of care is lowered to that of a medical trainee.

Answer: E. Choice A is incorrect. Lawsuits against house staff are not rare, and resident physicians are regularly joined as codefendants with their supervisors who are typically medical school faculty or community practitioners admitting patients to “team care.” By the end of 2006, the National Practitioner Data Bank had catalogued 1,832 residents as having had at least one adverse malpractice claim (National Practitioner Data Bank: 2006 Annual Report. Available at www.npdb-hipdb.com. Accessed May 17, 2010). Choice B is incorrect because the legal cause is unproven, and the facts are insufficient to impute the cardiac arrest to medical error.

On the issue of insurance coverage, the Accreditation Council for Graduate Medical Education requires graduate medical education programs to insure their trainees for “claims reported or filed after the completion of graduate medical education if the alleged acts or omissions of the residents are within the scope of the education program.” Thus, residents are covered for acts or omissions during their training period, irrespective of when the claim is brought (so-called “tail coverage”). However, should a resident moonlight or be employed outside of the training program, the resident should either purchase separate professional liability insurance or have the employer provide such insurance, including tail coverage (AJR Am. J. Roentgenol. 1998;171:565-7).

Choice D is also incorrect. Having an in-house anesthesiologist or nurse-anesthetist may represent good hospital policy, but it is not a community or legal standard at this time.

The best choice is E. Although still acquiring the skills toward certification, trainees remain individually responsible for their actions. But should the law demand the same standard of care as it would a fully qualified attending physician? The courts are split on this question (JAMA 2004;292:1051-6). Some have favored a dual standard of conduct, with trainees being held to a lower standard of care. This was articulated in Rush v. Akron General Hospital, which involved a patient who had fallen through a glass door. The patient suffered several lacerations to his shoulder, which an intern treated. However, when two remaining pieces of glass were later discovered in the area of injury, the patient sued the intern for negligence. The court dismissed the claim, finding that the intern had practiced with the skill and care of his peers with similar training: “It would be unreasonable to exact from an intern, doing emergency work in a hospital, that high degree of skill which is impliedly possessed by a physician and surgeon in the general practice of his profession, with an extensive and constant practice in hospitals and the community” (Rush v. Akron General Hospital, 171 N.E.2d 378 [Ohio Ct. App. 1987]).

However, not all courts have embraced the dual standard of review. In a recent case out of New Jersey, the Superior Court held that licensed residents should be judged by a standard applicable to a general practitioner, as any reduction in the standard of care would set a “problematic precedent” (Clark v. University Hospital, 914 A.2d 838 [N.J. Super. 2006]). In this case, the residents allegedly failed to reinsert a nasogastric tube, which caused the patient to aspirate.

Should the applicable standard for a resident physician be even higher? In Pratt v. Stein, a second-year resident was judged by a specialist standard after he had allegedly administered a toxic dose of neomycin to a postoperative patient, which resulted in deafness. Although the lower court had ruled that the resident should be held to the standard of an “ordinary physician,” the Pennsylvania appellate court disagreed, reasoning that “a resident should be held to the standard of a specialist when the resident is acting within his field of specialty. In our estimation, this is a sound conclusion. A resident is already a physician who has chosen to specialize, and thus possesses a higher degree of knowledge and skill in the chosen specialty than does the nonspecialist” (Pratt v. Stein, 444 A.2d 674 [Pa. Super. 1980]).

However, a subsequent decision from the same jurisdiction suggests a retreat from this unrealistic standard. An orthopedic resident allegedly applied a cast with insufficient padding to the broken wrist of a patient. The plaintiff claimed this led to soft tissue infection with Staphylococcus aureus, with complicating septicemia, staphylococcal endocarditis, and eventual death. The court held that the resident’s standard of care should be “higher than that for general practitioners but less than that for fully trained orthopedic specialists. ... To require a resident to meet the same standard of care as a fully trained specialist would be unrealistic. A resident may have had only days or weeks of training in the specialized residency program; a specialist, on the other hand, will have completed the residency program and may also have had years of experience in the specialized field. If we were to require the resident to exercise the same degree of skill and training as the specialist, we would, in effect, be requiring the resident to do the impossible” (Jistarri v. Nappi, 549 A.2d 210 [Pa. Super. 1988]).

Dr. Tan writes the “Law & Medicine” column, which regularly appears in Internal Medicine News, an Elsevier publication. He is professor of medicine and former adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, “Medical Malpractice: Understanding the Law, Managing the Risk” (2006).

Question: The on-call resuscitation team, consisting of a supervising medical resident and an intern, was unsuccessful in its attempt to intubate the patient. The senior resident had performed only one prior intubation, and the intern none at all. No anesthesiologist or nurse anesthetist was in-house. It was subsequently discovered that moments before the arrest, the patient had erroneously received an antibiotic to which he was known to be allergic. In a lawsuit for wrongful death, which of the following statements is best?

A. Contrary to popular belief, lawsuits against resident physicians (house staff) are rare, with fewer than 100 cases reported to the National Practitioner Data Bank.

B. There is definite liability here, with the iatrogenic incident being caused by a medical error.

C. If a lawsuit is brought after completion of training, liability then attaches to either the resident or his or her new insurance carrier.

D. The hospital is liable, as it should always have someone in-house who is skilled in this lifesaving procedure.

E. Inexperience does not necessarily mean the applicable standard of care is lowered to that of a medical trainee.

Answer: E. Choice A is incorrect. Lawsuits against house staff are not rare, and resident physicians are regularly joined as codefendants with their supervisors who are typically medical school faculty or community practitioners admitting patients to “team care.” By the end of 2006, the National Practitioner Data Bank had catalogued 1,832 residents as having had at least one adverse malpractice claim (National Practitioner Data Bank: 2006 Annual Report. Available at www.npdb-hipdb.com. Accessed May 17, 2010). Choice B is incorrect because the legal cause is unproven, and the facts are insufficient to impute the cardiac arrest to medical error.

On the issue of insurance coverage, the Accreditation Council for Graduate Medical Education requires graduate medical education programs to insure their trainees for “claims reported or filed after the completion of graduate medical education if the alleged acts or omissions of the residents are within the scope of the education program.” Thus, residents are covered for acts or omissions during their training period, irrespective of when the claim is brought (so-called “tail coverage”). However, should a resident moonlight or be employed outside of the training program, the resident should either purchase separate professional liability insurance or have the employer provide such insurance, including tail coverage (AJR Am. J. Roentgenol. 1998;171:565-7).

Choice D is also incorrect. Having an in-house anesthesiologist or nurse-anesthetist may represent good hospital policy, but it is not a community or legal standard at this time.

The best choice is E. Although still acquiring the skills toward certification, trainees remain individually responsible for their actions. But should the law demand the same standard of care as it would a fully qualified attending physician? The courts are split on this question (JAMA 2004;292:1051-6). Some have favored a dual standard of conduct, with trainees being held to a lower standard of care. This was articulated in Rush v. Akron General Hospital, which involved a patient who had fallen through a glass door. The patient suffered several lacerations to his shoulder, which an intern treated. However, when two remaining pieces of glass were later discovered in the area of injury, the patient sued the intern for negligence. The court dismissed the claim, finding that the intern had practiced with the skill and care of his peers with similar training: “It would be unreasonable to exact from an intern, doing emergency work in a hospital, that high degree of skill which is impliedly possessed by a physician and surgeon in the general practice of his profession, with an extensive and constant practice in hospitals and the community” (Rush v. Akron General Hospital, 171 N.E.2d 378 [Ohio Ct. App. 1987]).

However, not all courts have embraced the dual standard of review. In a recent case out of New Jersey, the Superior Court held that licensed residents should be judged by a standard applicable to a general practitioner, as any reduction in the standard of care would set a “problematic precedent” (Clark v. University Hospital, 914 A.2d 838 [N.J. Super. 2006]). In this case, the residents allegedly failed to reinsert a nasogastric tube, which caused the patient to aspirate.

Should the applicable standard for a resident physician be even higher? In Pratt v. Stein, a second-year resident was judged by a specialist standard after he had allegedly administered a toxic dose of neomycin to a postoperative patient, which resulted in deafness. Although the lower court had ruled that the resident should be held to the standard of an “ordinary physician,” the Pennsylvania appellate court disagreed, reasoning that “a resident should be held to the standard of a specialist when the resident is acting within his field of specialty. In our estimation, this is a sound conclusion. A resident is already a physician who has chosen to specialize, and thus possesses a higher degree of knowledge and skill in the chosen specialty than does the nonspecialist” (Pratt v. Stein, 444 A.2d 674 [Pa. Super. 1980]).

However, a subsequent decision from the same jurisdiction suggests a retreat from this unrealistic standard. An orthopedic resident allegedly applied a cast with insufficient padding to the broken wrist of a patient. The plaintiff claimed this led to soft tissue infection with Staphylococcus aureus, with complicating septicemia, staphylococcal endocarditis, and eventual death. The court held that the resident’s standard of care should be “higher than that for general practitioners but less than that for fully trained orthopedic specialists. ... To require a resident to meet the same standard of care as a fully trained specialist would be unrealistic. A resident may have had only days or weeks of training in the specialized residency program; a specialist, on the other hand, will have completed the residency program and may also have had years of experience in the specialized field. If we were to require the resident to exercise the same degree of skill and training as the specialist, we would, in effect, be requiring the resident to do the impossible” (Jistarri v. Nappi, 549 A.2d 210 [Pa. Super. 1988]).

Dr. Tan writes the “Law & Medicine” column, which regularly appears in Internal Medicine News, an Elsevier publication. He is professor of medicine and former adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, “Medical Malpractice: Understanding the Law, Managing the Risk” (2006).