Hospital not liable for sleep-deprived intern's motor vehicle crash

By Robert A. Bitterman, MD, JD, FACEP, Contributing Editor

In the case of Brewster v Rush-Presbyterian-St. Luke's Medical Center,1 the appellate court of Illinois had to decide whether a hospital owes a duty to a person injured by an off-duty intern suffering from sleep deprivation due to the hospital's policy on working hours.

Plaintiff Brewster alleged that the hospital's intern, just two weeks into her training, was driving home from the hospital following a scheduled 36-hour work shift when she fell asleep at the wheel of her car. She crashed into Ms. Brewster's car, injuring Ms. Brewster.

The plaintiff presented three theories of liability to sue the hospital for the intern's negligence. First, Brewster alleged the hospital knew or should have known that the intern worked 34 of the 36 scheduled hours, and that the lack of sleep would impair her judgment and ability to drive. Therefore, the hospital had a common law duty to control the actions of the intern to protect Ms. Brewster from harm. Second, the hospital was guilty of negligence under the duty imposed by the 'Restatement (Second) of Torts' (which is a compilation of proposed uniform tort rules, similar to the Uniform Commercial Code [UCC] for business transactions, adopted in whole or in part by state courts or legislatures into their own tort laws).2 Third, the hospital violated the Illinois Hospital Licensing Act3, which specifically incorporates the duty hour requirements established by the Accreditation Council for Graduate Medical Education (ACGME).4

Common law negligence

Brewster conceded that there was no existing Illinois law that would support a finding by the court that the hospital owed her a duty to protect her from the intern's negligent driving. Instead, Brewster argued that 'public policy' considerations dictated that the court create and impose such as duty upon the hospital. Interestingly, the Committee of Interns and Residents filed a brief (amicus curiae - 'friend of the court' – brief) supporting the plaintiff's attempt to expand the hospital's liability. The committee provided data that hospitals know, or reasonably should know, that a high percentage of interns and residents fall asleep behind the wheel of a car when driving home from work at the hospital. It also provided studies demonstrating the hazards of turning loose exhausted interns on an unsuspecting public, both in and out of the hospital. (The committee's transparent motive, besides blaming the hospital for the intern's falling asleep at the wheel, is to force hospitals to decrease the number of work hours imposed on physicians in their training programs.)5

Naturally, the Cook County and the Illinois Hospital Association filed briefs on behalf of the hospital, arguing that the hospital should not be liable for the intern's negligent acts when she was not actually working at the hospital. What the intern did on her own time (what little of it she had), should be her responsibility alone.

The court cited four factors relevant to deciding whether public policy should impose a duty of care on the hospital: (1) the reasonable foreseeability of injury; (2) the likelihood of injury; (3) the burden of guarding against injury; and (4) the consequences of placing that burden on the hospital.6

Plaintiff contended that an analysis of these factors weighed heavily in her favor. It certainly is reasonably foreseeable and likely that sleep-deprived drivers will cause traffic accidents and injure others. Hospitals could prevent such injuries by changing resident work schedules or providing additional rest periods, and the burden of these preventative measures is minimal when compared to the societal benefit that would be realized.

In essence, the plaintiff was arguing that these factors should induce the court to transfer the negligence of the intern to the hospital, what the law terms 'transferred negligence'.

However, the court stated that the general common law rule—established in a long line of Illinois Supreme Court cases—was that there is no liability imputed to health care providers for injuries to third parties who are not patients in the hospital.8 Only if a sleep-deprived intern hurt one of the hospital's patients, then the hospital would be liable.

The appellate court noted it was not a legislative body (i.e., not allowed to legislate from the bench) and that it was duty bound to follow the precedents declared by the state's highest court.

Restatement (Second) of Torts

Brewster next argued that the court should allow the transferred negligence under the Restatement (Second) of Torts.2,8 However, the Illinois high court did not adopt the entire Restatement; the sections it incorporated into Illinois law allow for transferred negligence only where a 'special relationship' exists between the defendant and the person causing injury or between the third party and the person causing injury. In other words, the hospital must have a special relationship with the intern or the person injured (Brewster), before the hospital has a duty to control the intern's behavior. Under the Restatement, special relationships that give rise to such a duty include, among others, a parent-child relationship and a master-servant relationship. Parents have a duty to control the behavior of their minor children; if one of their kids throws a rock through your kitchen window, the parents are liable. Similarly, hospitals (masters) as employers of interns (servants) are liable if one of their interns sticks a chest tube into the spleen of a trauma patient. However, this 'special master-servant' relationship ends when the intern leaves the hospital; it does not extend outside of the employment relationship.

Note how this applies to practicing emergency physicians. If the emergency physicians are employed by the hospital, the hospital is directly liable for the physician's negligence in caring for patients in the hospital or the ED. However, if the emergency physicians are independent contractors or employees of a separate corporation or contract management group that contracts with the hospital to provide ED services, then there is no master-servant relationship and the hospital is not directly liable for the emergency physicians' actions in the ED under state tort laws. (Though hospitals may be directly liable for the physicians under federal law, EMTALA, or vicariously liable under state law via various theories, such as apparent authority or ostensible agency.)

Also, analogous to this case, if an emergency physician who is employed by the hospital is treating neighbors or moonlighting at the corner urgent care center, then the hospital is not liable for the physician's negligence (and importantly, the malpractice insurance provided by the hospital typically does not cover the physician's practice away from the hospital).

Note also that the result in this case could be otherwise in different jurisdictions, either because of public policy considerations, adoption of the complete Restatement, or legislative action. For example, in Oregon the court in Faverty v McDonald's Restaurants, Inc.,9 held the fast-food chain liable to a third party because it was reasonably foreseeable that employees scheduled to work excessive hours would fall asleep behind the wheel of a car when driving home and injure the third party. Also, in the Texas case of D. Houston, Inc. v Love,10 a nightclub was held liable for the injuries sustained in a car accident by one of its dancers (an independent contractor), who became intoxicated due to a 'job requirement' that she consume alcohol, and the intoxication was the proximate cause of the accident. An intern's 'job requirement' that they stay up all night and become 'sleep deprived' and the sleep deprivation being the proximate cause of an auto accident is essentially the same thing. Studies have shown that sleep deprivation results in physical effects on coordination and judgment very similar to that experienced with alcohol intoxication.11

Plaintiff wanted the court to carve out a new exception to the general rules limiting liability to third parties, which would hold hospitals liable to third parties for the conduct of resident physicians who are required to work excessive hours.

However, since the plaintiff could not establish the special relationship involving the intern outside of the hospital required by the Restatement of Torts sections adopted by the Illinois Supreme Court, the court held that the hospital had no duty to control the conduct of the intern while she was driving home.1

Illinois Hospital Licensing Act

Lastly, Brewster argued that the hospital violated section 6.14 of the Hospital Licensing Act3 and therefore, she should be able to sue the hospital for the damages she suffered as a result of the hospital's violation. Section 6.14 reads:

"Resident and intern duty hour requirements. Hospitals licensed under this Act shall comply with the duty hour requirements for residents and interns established by the Accreditation Council for Graduate Medical Education (ACGME)."3

ACGME's duty hour standards mandate a 24-hour limit on continuous duty, with up to 6 added hours to participate in didactic activities, transfer care of patients, conduct outpatient clinics, and maintain continuity for continuity of care; a maximum of 30 consecutive hours.4

Based on the facts alleged by Brewster, the hospital had indeed violated the ACGME standards and thus the Illinois Hospital Licensing Act. However, the hospital maintained that section 6.14 of the Hospital Licensing Act did not grant plaintiff a private cause of action and therefore is not a ground for liability against the hospital.

Unfortunately for Brewster, the language of the Licensing Act does not expressly allow a plaintiff the right to seek damages for a hospital's violation of section 6.14. Still, the court said that a private right of action could be implied where: "(1) the plaintiff is a member of the class for whose benefit the statute was enacted; (2) the plaintiff's injury is one the statute was designed to prevent; (3) a private right of action is consistent with the underlying purpose of the statute; and (4) implying a private right of action is necessary to provide an adequate remedy for violations of the statute."12

Brewster's hope was short-lived, since the court decided that the Licensing Act was enacted to combat problems associated with patient care. Because Brewster was not a patient, the court saw no reason to conclude she had a private right of action against the hospital under section 6.14.1

Final ruling of the court

The court held that the hospital did not have duty under current Illinois law to control the weary intern's actions when she was off-duty, affirming the trial court's dismissal of Ms. Brewster's complaint.1 Teaching hospitals everywhere breathed a huge collective sigh of relief.

Additional comments

Illinois may be the only state to specifically compel hospitals by statute to comply with the resident physician duty hour requirements of the ACGME.3 However, it is not the only state to address the issue of the long hours worked by hospital interns and residents.13 Most notable is New York, which as a result of the famous Libby Zion case enacted its own resident duty hour standards in 1989 by revising the New York State Health Code.14

Eighteen-year-old Libby Zion was admitted to New York Hospital emergency department late at night with fever, flu symptoms, and intermittent agitation; she died less than eight hours later. Her father, Sidney Zion, an attorney, a writer for the New York Times, and former federal prosecutor launched a crusade against the hospital and the medical profession, claiming Libby's death was a direct result of errors made by a sleep-deprived intern and resident and total lack of supervision by the attending physician. (The cause of Ms. Zion's death was not definitively established, though it was most likely from a lethal combination of a monoamine oxidase inhibitor (Nardil), which Zion had been taking and hid from her doctors, and Demerol, which she was given in the hospital.)14,15

A Manhattan grand jury investigation rejected Sidney Zion's well publicized charges of medical "murder" and did not indict the doctors involved. It did, though, fine the hospital $13,000 for providing inadequate care and supervision in Libby's case, and stated that the physicians' excessive hours on duty contributed to the teenager's death.16

The family filed a lawsuit against the hospital that dragged on for more than a decade. Ultimately, the jury found Libby 50 percent liable for her own death for not telling the doctors she had taken cocaine and numerous prescription drugs (including Nardil) before they prescribed Demorol for her; it awarded the Zions $375,000.14,15,17

Various state medical licensing agencies and professional review boards conducted more than 30 investigative hearings, and the case prompted the New York state health commissioner to form a committee that recommended major changes in the delivery of emergency care, limited the consecutive hours that doctors in training can work, and required greater supervision by attending physicians.16,18-20 The 1989 New York State Health Code changes were a direct result of the Zion case and the committee's recommendations.19-21

Subsequently, and also instigated and influenced by the Libby Zion case, the Residency Review Committee for Internal Medicine and the Accredita-tion Council for Graduate Medical Education set national restrictions on work hours similar to those of the NY Health Code for our nations 7,800 residency programs, which became effective in July 2003.4,22

References and Additional Resources

1. Brewster v. Rush-Presbyterian-St. Luke's Medical Center, N.E.2d 635 (Ill. App. Ct. 1st Dist., 2005); leave to appeal to Illinois Supreme Court denied, 844 N.E.2d 964 (Ill. 2006).

2. Restatement (Second) of Torts Sections 315 through 319 (1965).

3. Illinois Hospital Licensing Act, Section 6.14 (210 ILCS 85/6.14 (West 1996)).

4. Accreditation Council for Graduate Medical Education (ACGME) Duty Hour Requirement for Residency Programs. ACGME is responsible for evaluating and accrediting more than 7,700 accredited residency education programs in 110 medical specialties and subspecialties. The Council establishes and updates educational standards for residency programs. See also, Accreditation Council for Graduate Medical Education, Report of the Work Group on Resident Duty Hours and the Learning Environment, June 11, 2002; (

5. See for example, Steele MT, Ma OJ, Watson WA, Thomas HA Jr, Muelleman RL. The occupational risk of motor vehicle collisions for emergency medicine residents. Acad Emerg Med 1999 Oct;6(10):1050-3; McCall TB. The impact of long working hours on resident physicians. N Engl J Med 1988;318(12):775-8; Davydov L, Caliendo G, Mehl B, Smith. LB. Investigation of Correlation Between House-Staff Work Hours and Prescribing Errors. Am J Health-Syst Pharm 61(11):1130-1134, 2004; Ayas NT, Barger LK, Cade BE, et al. Extended Work Duration and the Risk of Self-reported Percutaneous Injuries in Interns. JAMA 2006;296:1055-1062. National Study of Medical Interns Finds Eighty Four Percent Exceed ACGME Work Hour Limits; Link Made Between Needle Stick Injuries and Long Shifts. See September 6, 2006

6. Brewster v. Rush-Presbyterian-St. Luke's Medical Center, N.E.2d 635 (Ill. App. Ct. 1st Dist., 2005), citing City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d. 1099 (Ill. 2004).

7. See, e.g., Kirk v. Michael Reese Hospital & Medical Center, 513 N.E.2d 387 (Ill. 1987); Estate of Johnson v. Condell Mem. Hospital, 520 N.E.2d 37, Ill. (1988); Doe v. McKay, 700 N.E.2d 1018, 233 Ill. (1998).

8. Restatement (Second) of Torts, Section 321 (1965).

9. Faverty v. McDonald's Restaurants of Oregon, Inc., 892 P.2d 703 (1995).

10. D. Houston, Inc. v. Love, 92 S.W.3d 450 (Tex. 2002).

11. Veasey S, Rosen R, Barzansky B, Rosen I, Owens J. Sleep Loss and Fatigue in Residency Training: A Reappraisal. JAMA 2002;288:1116-24; Weinger MB, Ancoli-Israel S. Sleep Deprivation and Clinical Performance. JAMA 2002;287:955-57; Leung L, Becker CE. Sleep deprivation and house staff performance. Update 1984-1991. J Occup Med 1992; 34:1153-60.

12. Brewster v. Rush-Presbyterian-St. Luke's Medical Center, citing Fisher v. Lexington Health Care, Inc.,722 N.E.2d 1115, Ill. (1999).

13. Evans L. Regulatory and legislative attempts at limiting medical resident work hours. J Legal Med. 2002; 23:251-67; Whetsell JF. Changing the law, changing the culture: rethinking the "sleepy resident" problem. Ann Health Law 2003; 12(1):23-73.

14. Asch DA, Parker RM. The Libby Zion case. One step forward or two steps backward? N Engl J Med 1988; 318:771-5; See also, The Libby Zion Case. Ann Intern Med 1991 Dec 15;115(12):985-6; AJ Block. Revisiting the Libby Zion case. Editorial. Chest 1994;105(4):977-978.

15. Wallis C. Re-examining the 36-hour day. New York State leads a movement to change the way U.S. doctors are trained. Time 1987 Aug 31;130(9):54-5; Robins N. The Girl Who Died Twice; Every Patient's Nightmare: The Libby Zion Case and the Hidden Hazards of Hospitals. 350 pp. New York. Delacorte Press.

16. Spritz N. Oversight of physicians' conduct by state licensing agencies. Lessons from New York's Libby Zion case. Ann Intern Med 1991 Aug 1;115(3):219-22.

17. Zion v. New York Hosp., 183 A.D.2d 386 (N.Y. App. Div. 1992).

18. Holzman IR, Barnett SH. The Bell Commission [NY State Commission convened after the Libby Zion case]: Ethical implications for the training of physicians. Mt Sinai J Med 2000;56:136-139.

19. Brensilver JM, Smith L, Lyttle CS. Impact of the Libby Zion case on graduate medical education in internal medicine. Mt Sinai J Med 1998 Sep;65(4):296-300.

20. Reiner SC. The impact of the new code regulations on postgraduate medical education in New York State. N Y State J Med 1989 Aug;89(8):457-61.

21. Kelly A, Marks F, Westhoff C, Rosen M. The effect of the New York State restrictions on resident work hours. Obstetr Gynecol 1991 Sep;78(3 Pt 1):468-473; Laine A, Goldman L, Soukup JR, Hayes JG. The impact of a regulation restricting medical house staff working hours on the quality of patient care. JAMA 1993;269:374-378.

22. Ludmerer Km, Johns MM. Reforming graduate medical education. JAMA 2005;294:1083-87.