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Are moonlighting residents more difficult to defend?
Resident will be labeled as 'student doctor'
by Stacey Kusterbeck, Contributing Editor
Whenever a resident is sued in a malpractice case, the plaintiff's counsel can label that doctor as a student whose training is incomplete, says Lisa Lepow Turboff, an attorney at Houston, TX-based McGlinchey Stafford.
In a typical case, the resident is sued for care provided in the course and scope of his or her residency. In that instance, liability is deferred somewhat to the attending physician and the medical school who are responsible for the actions of the resident.
"The moonlighting situation is different," says Turboff. "Here, the resident physician is practicing medicine outside the course and scope of his or her residency program, and he or she is going to be ultimately responsible for their actions."
One difficulty is that the resident physician is going to be judged by the standard of care applicable to an emergency physician, not the standard of care applicable to a resident physician. Therefore, the resident physician's lack of complete postgraduate training, and lack of training in the field of emergency medicine, will always be a focus of the other side during pretrial preparation and will be a significant hurdle to overcome at trial.
Both sides will hire expert witnesses to give their opinions, and will generally hire a physician who is board certified in emergency medicine. "The obvious contradiction in training between the resident physician and board certified physician will remain on the juror's minds throughout the trial," says Turboff. "While this is difficult, it's not insurmountable."
Statistically, most cases of true medical negligence settle out of court, and those that make it to a jury are ones in which the physician's actions are defensible, says Turboff.
Further, any physician, including a resident physician, who is providing emergency care in a hospital ED may be afforded greater protections under the law depending on the state in which the suit is filed. In Texas, for example, a plaintiff in a medical negligence lawsuit complaining of the emergency care provided in hospital must prove not just simple negligence, but "willful and wanton" negligence.
"What that does is inject an element of intent that doesn't exist in any other negligence case," says Turboff. "So it's much harder to prove liability against any care provider providing emergency treatment in a hospital."
In general, though, the defense of a resident physician who is sued for care and treatment provided while moonlighting in an ED should be focused on the facts of the case and would not necessarily be more difficult just because the resident is still in training, says Kip Poe, RN, MSN, JD, an attorney at Dallas, TX-based Stewart Stimmel.
As with any case, a successful defense will depend on the quality of care provided, the documentation of the medical record, the credibility of the witnesses, and many other factors, says Poe.
To cast the moonlighting resident in a less favorable light to the jury, the patient's attorney may try to convince the jury that the resident, practicing as an ED physician, is still in training and, therefore, not as qualified as a physician who has completed residency training. "This perception is unwarranted because to moonlight, you must be a licensed physician and have the credentials to have medical staff privileges in the ED," says Poe.
As a moonlighting resident being sued, there are several things you can do to help defend yourself against the false perception that you are not qualified. "First, educate your defense counsel that you are not a student doctor," advises Poe. Help your attorney educate the jury that your continued training is not to be a physician, but rather that you are a physician who has continued specialized training, adds Poe.
"If you are in an ED residency program, you will want the jury to understand that on a daily basis you provide the hands-on care for some of the most complex and complicated emergency cases," says Poe. "Most importantly, do make certain that any moonlighting assignment you accept is well within your qualifications and realm of experience."