Never even saw the patient? You still might be liable, if supervising
Physicians can be held liable for actions of others
If you never saw a patient, you can't held be liable for a bad outcome resulting from the negligence of a resident or nurse practitioner you're supervising, correct? That's a dangerous assumption, warns Lori Meyerhoffer, MD, JD, a partner with Yates, McLamb & Weyher in Raleigh, NC.
Supervising physicians often assume that liability cannot attach if they don't personally evaluate the patient, but often, this is not the case, she says.
A Georgia attending physician was sued for the actions of a physician assistant who performed vein harvest on patient's leg during cardiac bypass surgery and injured the saphenous nerve, which caused permanent damage. The Court of Appeals, which addressed only whether or not the physician could be liable for the actions of the physician assistant, stated that physicians do not have "carte blanche to delegate any and all tasks to an assistant," and "to hold otherwise would allow a brain surgeon to delegate brain surgery, or a neurosurgeon to delegate a spinal fusion, or a plastic surgeon to delegate rhinoplasty, all with impunity."1
Some states will extend the doctor-patient relationship and, therefore, physician liability to supervising physicians who have no actual contact with the patient when those they supervise are negligent, explains Meyerhoffer. "Furthermore, some medical boards will also take action against a supervising physician for the negligence of those they supervise," she says.
Expansion of responsibility
Attendings and on-call physicians often assume they have no potential legal exposure if they never treat the patient, says Lisa Lepow Turboff, JD, a shareholder with Munsch Hardt Kopf & Harr in Houston, TX.
"A physician's belief that he cannot be sued for medical negligence if he has no professional relationship with the patient is certainly well-founded," she says. "The law has always been that a physician owes no duty of care to a patient that he does not treat."
While the existence of a physician/patient relationship is still the law, many states have expanded the manner in which such a relationship can be formed in order to allow patients to sue attending and/or on-call physicians for the medical negligence of others such as resident physicians, nurse practitioners, and physician assistants, explains Turboff. "The most common example is in teaching hospitals, where units are staffed by residents with on-call or attending physicians available for consultation," she says.
In this scenario, courts have allowed medical negligence lawsuits to proceed against on-call physicians who have no knowledge of the patient/plaintiff and no interaction with the treating resident(s) about the patient/plaintiff, notes Turboff. "These courts rely on the wording contained in the contract between the attending and the teaching hospital, and the agreement to be treated by a physician in training signed by the patient, to establish a physician/patient relationship sufficient to allow the patient to sue the attending," says Turboff.
Judges don't answer questions about the duties and requirements of an attending physician, says Turboff, such as whether an onsite attending should proactively review the charts of every patient on his unit every day, or whether an off-site on call physician should routinely call the emergency department to be informed about all patients being treated. "Rather, once a judge allows a such a lawsuit to proceed against a physician who has never laid eyes on a patient, it's the jury who evaluates the evidence presented by medical experts and answers the questions about the duties and requirements of an attending or on-call physician," says Turboff.
While physicians aren't responsible for all actions of those they supervise, the current trend is to expand the responsibility of supervising physicians, says Turboff.
"In the last 10 years, there has been increased scrutiny of residency programs, born from medical errors made by sleep-deprived residents," she notes.
Congress requested a study on the state of medical residencies nationwide, in an effort to encourage institutions to implement measurable standards such as policies and procedures about when and how to contact supervising physicians, notes Turboff. The resulting December 2008 Institute of Medicine report recommended new regulation of resident duty hours, supervision, and training.
"Despite this growing interest, the legal theories under which a supervising physician may be sued has remained constant," says Turboff. A supervising physician can be sued under the legal theory of vicarious liability, which means a physician is liable for the acts of another physician based solely on the relationship between the two physicians, she explains, or under the legal theory of negligent supervision, which is based on the supervising physician's own actions, or lack thereof, in supervising another.
"This area of the law is expanding, as plaintiffs' attorneys look for novel ways to create a physician/patient relationship," says Turboff. (See related stories on legal obligations of supervising physicians, below, and litigation involving supervising physicians, below.)
- Gillis v. Cardio TVP Surgical Associates [520 S.E. 2d 767 (GA 1999)].
For more information on liability risks of supervising physicians, contact:
- Lori Meyerhoffer, MD, JD, Yates, McLamb & Weyher, Raleigh, NC. Phone: (919) 719-6010. Fax: (919) 582-2510. Email: firstname.lastname@example.org.
- Harriett T. Smalls, JD, Smith Moore Leatherwood, Greensboro, NC. Phone: (336) 378-5424. Email: Harriett.Smalls@smithmoorelaw.com.
- Lisa Lepow Turboff, JD, Munsch Hardt Kopf & Harr, Houston, TX. Phone: (713) 222-4041. Fax: (713) 222-5813. Email: email@example.com.
Supervising MDs have these legal obligations
Supervising physicians have an obligation to ensure that patient care is within the standard of care when delegating that care to others, says Lori Meyerhoffer, MD, JD, a partner with Yates, McLamb & Weyher in Raleigh, NC.
"It is difficult to determine how much supervision is required, but ensuring the supervising physician is readily available for any concerns is paramount," she says.
Liability varies according to state law, but in general, a supervising physician should consider all healthcare providers they supervise as extensions of themselves, Meyerhoffer says. "There are multiple examples of supervising attending liability, and multiple suits have been brought against physicians for the alleged negligence of those they supervise," she adds. "Attending physicians supervising interns and residents are obvious examples."
In most instances, attending physicians are liable for the actions of their residents under a theory of negligent supervision, explains Meyerhoffer. "The reach of this liability can be broad and can extend liability to supervising physicians for the care provided to patients they did not personally examine," she adds.
Physicians might be legally liable for the failure of providers they're supervising to act appropriately even if the physician acted appropriately, warns Harriett T. Smalls, JD, an attorney with Smith Moore Leatherwood in Greensboro, NC.1, 2, 3 "If the [provider] commits a negligent act and was under the physician's control, the physician may be liable," she says. "Failure to properly supervise a [provider] can also lead to liability."
Smalls says that supervising physicians have these obligations:
• Check the credentials of any providers you supervise to make sure they have the proper training and certification.
Physicians should not require or allow a provider to perform acts that are outside the scope of their practice, advises Smalls, adding that a nurse practitioner or physician assistant's scope of practice might vary depending on the setting. For example, a nurse practitioner in an emergency department setting would have considerably more responsibility and independence than a nurse practitioner in an office setting.
"If a [provider] does an act that is outside the scope of their practice that is not at the direction of the [supervising] physician, then the physician will, most likely, not be held liable for the [provider's] actions," says Smalls. Generally, a physician is not responsible for the actions of a resident if the resident exercised independent medical judgment, she adds.
• Make sure you have clear written protocols in place.
Include language relating to lines of communication, how communication is to be done with supervising physicians, the provider's scope of practice, and where the provider is to practice, says Smalls.
• Periodically check the provider's work habits.
• Make sure the lines of communication are open and that the provider has reliable contact information for the supervising physician.
"The supervising physician should foster a collaborative relationship. Make sure the PE understands that it is OK to call any time without fear of reprisal," says Smalls.
• Require signature of the provider being supervised and the supervising physician on medical records.
"Remember that by signing, the physician is implying that he or she understands and agrees with the diagnosis and plan of treatment," says Smalls. "Although the [provider] is responsible for the care of the patient, the supervising physician is still liable."
Can supervising MD be liable? Courts say yes
In a North Carolina case, an obstetrician was supervising residents from home, never personally evaluated the patient prior to the alleged negligence, was not present during the allegedly negligent delivery, and arrived shortly after the residents delivered the baby. Nonetheless, the court found the attending physician could be liable.1
"The court extended the traditional notion of the physician-patient relationship to the supervising physician in that circumstance and held there could be supervising attending liability for the negligent acts of the residents he supervised, even without direct patient contact," notes Lori Meyerhoffer, MD, JD, a partner with Yates, McLamb & Weyher in Raleigh, NC. " It was reversed at the Supreme Court level because the lower court dismissed the claim."
In another case, the court found a surgeon was in a supervisory role over a nurse anesthetist, where there was no anesthesiologist onsite, when the nurse anesthetist failed to notify the surgeon of the patient's deteriorating condition.2
"That court held supervising physicians can be liable to patients, even when supervising skilled healthcare professionals," she says.
Other suits have been filed against the supervising physician when a physician's assistant or nurse practitioner failed to contact the supervising physician or failed to communicate the circumstances to the supervising physician. "Although the law in each state varies, it's safe to assume that the physician, the practice, and the allegedly negligent healthcare provider supervised by the physician will all become defendants if there are allegations of negligence," says Meyerhoffer.
Some state courts hold that an attending physician is not responsible for the actions of a resident physician in those instances in which the resident should be independently capable, such has suturing a wound or closing an operative site, says Lisa Lepow Turboff, JD, a shareholder with Munsch Hardt Kopf & Harr in Houston, TX. "In these instances, the fact that the attending physician has provided medical care to the patient was irrelevant," she says.
A 2001 case involved a 4-year-old girl brought to the emergency department of a teaching hospital to be evaluated for chicken pox and lethargy.3
"A first-year and third-year resident treated the child. Neither resident contacted the off-site on-call physician," says Turboff. "The residents missed a pulmonary condition, hydrated the child, and discharged her."
The child later died from the undiagnosed pulmonary condition. The Virginia court would not allow the case to proceed against the on-call physician because the plaintiff did not establish a physician-patient relationship. "The court clearly stated that it was amenable to establishing this relationship via less traditional means, such as the language in the contract between [the on-call physician] and the hospital, however, but plaintiff did not present any such evidence," notes Turboff.
In a 2002 case, obstetrics/gynecology residents negligently treated a pregnant patient resulting in the birth of a brain-damaged baby. The plaintiff sued the obstetrics/gynecology attending physician, who played no role in the care of the patient.4
"The trial and appellate courts dismissed the lawsuit because of a lack of a physician-patient relationship," says Turboff. The Ohio Supreme Court reversed the lower courts' rulings, rejected prior Ohio law, and held that "[a] physician patient relationship can be established between a physician who contracts, agrees, undertakes, or otherwise assumes the obligation to provide resident supervision at a teaching hospital and a hospital patient with whom the physician has no direct or indirect contact," she says.
"The court based its decision on the language in [the attending physician's] contract with the hospital and the language in the plaintiff's consent to be treated by resident physicians," says Turboff.
Physicians should be aware of state laws in order to formulate a strategic plan to lower the risk of being sued for the actions of others, she says.
"Supervising physicians and teaching institutions should examine the language used in their contracts to see if there are revisions to be made to avoid these scenarios," Turboff advises.