When physician trainees (residents or fellows) were involved in harm events, the ED was a higher-risk setting than inpatient or outpatient areas, according to the authors of a recent analysis.1 However, that does not necessarily mean the trainee was from emergency medicine.

Malpractice claims involving the ED were more likely to involve physician trainees compared to trainees from inpatient and outpatient settings.

However, by specialty, emergency medicine physician trainees were statistically less likely to be named in claims than physician trainees in other specialties, including medicine/surgery.

“We took this to mean that physician trainees coming to the ED, especially to do procedures, are at highest risk of being involved in a claim,” says Laura Myers, MD, MPH, CPPS, the study’s lead author. Myers is a pulmonary intensivist at the Massachusetts General Hospital and a research fellow in quality and safety at Harvard Medical School.

This could be because physician trainees are less accustomed to the chaotic, urgent ED environment, or lack direct supervision from an attending in their specialty. “Their attending may not be present in the hospital, or they may not be supervised directly by the ED attending,” Myers notes.

Researchers studied 581 malpractice claims in which physician trainees were involved in harm events from the Comparative Benchmarking System database (operated by Harvard’s malpractice insurer, the Controlled Risk Insurance Company). Of these, 62 involved a physician trainee in the ED. “Claims involving physician trainees were, overall, rare,” Myers reports.

Inadequate supervision was a contributing factor in 24% of claims. Of this group of claims, 74% were procedure-related. “Procedural safety, specifically procedural supervision, was an important theme that emerged from our analysis,” Myers notes.

She attributes emergency medicine trainees’ comparatively low risk to the fact that, typically, there always is an attending available to supervise. “In large academic medical centers, there are often multiple attendings, as well as a back-up schedule for attendings in case there is a surge in ED capacity,” Myers observes.

Michael Blaivas, MD, FACEP, has reviewed multiple malpractice claims involving residents in the ED. In some, the supervising EP was held liable; in others, he or she was dismissed from the case. “There is no uniform approach to this that I’ve seen from courts and also from plaintiff attorneys,” says Blaivas, an affiliate professor of medicine at University of South Carolina School of Medicine.

Some plaintiff attorneys routinely name both the resident and attending. Some will name one and not the other due to not fully comprehending the relationship between the two providers.

Court rulings are similarly inconsistent. Some judges will let residents out of the case quickly — but keep the attending. “The attending EP clearly had no idea what was going on with the patient, and signed off on the chart days later, yet still gets successfully pulled into the lawsuit,” Blaivas notes.

Other judges have dismissed attendings who were not directly involved in the patient encounter. In several cases, the supervising EP signed off on the chart, documented approval of the care, and billed for the visit. “The EP had clearly assumed responsibility but was let off because they never saw the patient,” Blaivas explains.

What this means for supervising EPs is that they cannot count on dismissal from a case involving a resident; or, conversely, being pulled into one. “I’ve seen this issue come up in multiple different states, even in different courts in the same state, and the way it’s handled differs depending on the court and the attorneys,” Blaivas recalls.

When the ED attending is named, inadequate supervision almost always is the main allegation. Attending EPs often chart too sparsely on this crucial point. Many charts contain only vague statements along the lines of the EP “assumed care of the patient” or “reviewed everything.”

This makes it easy for the plaintiff to allege the bad outcome happened because the supervising EP was not around when things went wrong. The attending’s documentation includes nothing about being present during critical procedures such as resuscitation or placement of a central line. The resident’s documentation includes nothing about the attending being there, either.

“The attending is successfully painted as negligent because they weren’t there to supervise or, if they were, they didn’t bother leaving a note,” Blaivas says. Typically, attending physicians think they are protecting themselves legally by documenting “reviewed everything.”

“The notes seem protective to the attending because they seem to distance them from the case,” Blaivas observes. At deposition, though, attendings will be asked for specifics on what exactly was reviewed.

Blaivas has seen attorneys ask these questions: “If you were aware of everything, why did you let this mistake happen during a procedure?” and “Where were you when this chest tube placement went bad?” The same issue comes up if a septic patient was not resuscitated quickly enough because the resident did not realize how sick the patient was. “The attorney will ask exactly where the attending was when critical decisions were being made,” Blaivas cautions.

The resident and attending might find their interests are at odds as co-defendants. By the time the malpractice case goes to court, the resident sometimes has become an attending physician. “They add in their current knowledge that they now have, and it clearly doesn’t match the care they gave,” Blaivas says.

If either defendant criticizes the other, the plaintiff can easily exploit that. “Juries will see any kind of disagreement, even if it would be part of normal discourse in a medical discussion, as a sign that everybody’s trying to cover things up,” Blaivas explains.

Ideally, the attending EP is continually walking around checking on patients for whom residents are providing care, Blaivas suggests. Good documentation provides specifics, such as “Was in, discussed care with resident, and answered questions.”

“In the event of a negative outcome, you at least have an anchor to make an argument that ‘Yes, I was there checking on the resident,’” Blaivas says.

Otherwise, the EP can only claim he or she must have checked on the patient because it is their usual and customary practice. “If there is thin documentation by the resident, the plaintiff attorney will paint it that there is no evidence that you checked in,” Blaivas warns.

Blaivas says supervising EPs should be actively looking for red flags and intervening as needed. This can prevent residents from discharging someone with low blood pressure, low oxygen saturation, or high heart rate. “If these are associated with a negative outcome, the attending will be seen as having endorsed an incomplete work-up,” Blaivas says.

Juries will not be sympathetic if a resident dismissed, with no explanation in the chart, a patient with a blood pressure of 90 systolic and a heart rate of 130. Jurors are likely to place blame on the attending who seemingly never even knew about the patient. “It’s very painful to realize in court that what you signed out was basically a patient who never should have been sent home,” Blaivas observes.


  1. Myers LC, Gartland RM, Skillings J, et al. An examination of medical malpractice claims involving physician trainees. Acad Med 2019; Dec 10. doi: 10.1097/ACM.0000000000003117. [Epub ahead of print].