ED residents perform thousands of procedures every day, most of which are uneventful. A very small percentage of patients end up with a procedure-related complication. Even the vast majority of these cases do not end up in litigation.
“Of those that do end up in litigation, lack of adequate supervision and not being proficient in a procedure are the two most common allegations made by the plaintiff,” says Adnan Sabic, MD, an emergency medicine attending at St. John Hospital & Medical Center in Detroit.
If there is a procedure-related adverse outcome, EPs can expect to be named in the lawsuit. “Proving that the EP was negligent is a difficult but not an impossible task,” Sabic says. If the resident testifies that the attending EP was not present for the critical portions of the procedure, that could be problematic. “It is imperative that the EP is at bedside for the critical portions of the procedure,” Sabic advises.
It is as important for the resident and EP to discuss with the patient or whoever is making the decision the most common complications associated with the procedure. “Plaintiffs will allege that the risks and alternatives were not discussed with them,” Sabic reports.
This should be documented, and a written consent should be obtained from the patient or family. “Sometimes, that is not feasible because of clinical presentation,” Sabic notes. “That’s when we rely on implied consent.”
Procedure-related complications always will occur, Sabic says. “The best way to defend these is for the EP to be at bedside for the entirety of the procedure and to document appropriately.”
Generally, residents are protected in the hospital learning environment. The attending physician is the one who is responsible in any legal case involving a resident, says Patricia P. Nouhan, MD, residency program director in the department of emergency medicine at Ascension St. John Hospital in Detroit.
“In the ED, the attending faculty needs to supervise procedures,” Nouhan says. For small procedures, such as a simple laceration repair or an IV start, attending faculty discuss the procedure but do not need to be present bedside. Still, the supervising EP must be available for consultation.
“Retrospectively, the documentation that clarifies that the EP was available for supervision and consultation is the resident attestation note,” Nouhan says. This note should exist on every chart dictated by the resident, which the faculty physician reads, amends (if necessary), and signs.
“The attestation note indicates that the patient was seen and examined by the faculty member as well as the resident,” Nouhan explains. It also delineates that the attending physician supervised the critical part of any procedure the resident performed.
For major procedures, such as intubation or inserting a chest tube, the supervising EP must be present for the significant parts of the procedure. “If there is any error in that situation, the faculty is responsible and could be found to be lacking in supervision of that resident,” Nouhan warns.
Most, if not all, residents are hospital or graduate medical education employees. Thus, most plaintiffs also name the hospital in the lawsuit. “Hospitals can be held liable if the resident or EP have a history of negligence, especially if there was a settlement or judgment against either one,” Sabic notes. Cases in which residents are named are more likely to concern certain technical skills, according to a recent study.1 These include vascular access and spinal procedures. Researchers analyzed 845 open and closed emergency medicine cases using data from the Controlled Risk Insurance Company Strategies’ Comparative Benchmarking System. They compared cases naming residents (113) to those that did not involve a resident (732). Some findings:
- The most frequent allegation categories in both cohorts were failure or delay in diagnosis/misdiagnosis and medical treatment;
- On average, resident cases incurred lower payments ($51,163 vs. $156,212 per case);
- Sixty-six percent of resident vs. 57% of nonresident cases were high-severity claims that resulted in permanent, grave disability or death;
- In resident cases, the final diagnoses were more often cardiac-related;
- Nonresident cases featured more orthopedic-related final diagnoses;
- In all cases, documentation, communication, and clinical judgment were the top contributing factors;
- Technical skills contributed to 20% of resident cases vs. 13% of nonresident cases;
- There were more vascular access and spinal procedures in resident cases.
However, residents are not necessarily less skilled in procedures than faculty. Residents are more experienced, generally speaking, in ultrasound than most older faculty, Nouhan notes.
“It will be interesting to see if that skill set comes into play legally in future cases.”
- Gurley KL, Grossman SA, Janes M, et al. Comparison of emergency medicine malpractice cases involving residents to non-resident cases. Acad Emerg Med 2018; Apr 17. doi: 10.1111/acem.13430. [Epub ahead of print].
- Patricia P. Nouhan, MD, Residency Program Director, Department of Emergency Medicine, Ascension St. John Hospital, Detroit. Phone: (313) 343-8797. Email: firstname.lastname@example.org.
- Adnan Sabic, MD, Emergency Medicine Attending, St. John Hospital & Medical Center, Detroit. Email: email@example.com.