Working with residents? Avoid these med/mal allegations
Before a second-year resident performed an intraocular steroid injection, he decided that since he’d done the procedure many times, there was no need to call in the attending physician.
“But when the patient developed an acute infection and began losing his sight, all hell broke loose,” says Karen Byank Mathura, RN, JD, CPHRM, a claims and risk management consultant in the Bethesda, MD, office of RCM&D, a Baltimore, MD-based insurance brokerage firm, and a former medical malpractice defense attorney.
The patient sent a certified letter to the hospital’s CEO that threatened to go public with his allegations, call the press, and file a lawsuit. “The letter mentioned it was the ‘junior doctor’ who ‘screwed up,’ and that his ‘regular eye surgeon’ wasn’t even around during the procedure,” says Mathura. “The hospital quickly intervened and settled the claim, but had there been an attorney involved, it could have gone very differently.”
Michelle Hoppes, RN, MS, DFASHRM, senior vice president of Global Risk Management and Loss Control Services at Allied World, a Farmington, CT-based provider of specialty insurance and reinsurance solutions, has seen malpractice claims involving residents with these contributing factors: errors in judgment, memory lapses, lack of technical competence or skill, delay in notifying an attending of a patient change in status, and problems with handoffs and communication.
“Studies indicate that over 50% of these cases involving medical residents involved a lack of supervision by the attending physician,” Hoppes says.1
Mathura says, “Plaintiff attorneys can usually find a way to bring any healthcare provider who ‘touched’ a patient into their client’s claim or lawsuit. Unfortunately, attending physicians often get roped into a lawsuit for practically anything that their resident may do wrong.” For example, if a patient has an elevated potassium or international normalized ratio level, both the resident and the attending will be “charged” with the obligation to know this particular critical laboratory result, she explains.
“I have seen situations where a resident gets a call from the lab about a critical value, writes the finding in the chart, and begins to treat the patient,” says Mathura. “Should the patient arrest, it is almost a certainty that both the resident and the attending will be named as defendants.”
The plaintiff’s attorney then could argue that the attending physician should have been aware of what was happening to the patient, and the argument will be made by the attending’s counsel that the resident should have made a call and keep the attending in the loop. “Then there is finger pointing amongst the named defendants. This is truly a plaintiff’s attorney’s best case scenario,” she says.
It is ideal for residents and attending physicians to have a “united defense,” says Mathura, as “should one ‘finger point’ at the other, the defense becomes incredibly difficult.” Mathura says to consider these risk-reducing practices:
• Know what particular polices and protocols your hospital, practice, or department has in place regarding supervisory guidelines.
If the physician is compliant with all policies and protocols, it will difficult for a plaintiff attorney to argue that he or she did not act “reasonably,” says Mathura.
• Discuss expectations with the intern and resident.
Many physicians have their own guidelines for when the attending should be called and awakened from sleep, such as critical labs, vital signs, or the need for prompt surgery, Mathura says.
“Do this before you ‘cover their call’ or have them see your postops over the weekend. A little communication goes a very long way in this regard,” she says. “Although this will not prevent mishaps from occurring, it should hopefully prevent undue surprises.”
Hoppes recommends establishing communication triggers for when a resident/intern is to notify an attending. For example, one organization documented specific conditions on a card that was provided to residents/interns of the type of conditions and changes that need to be escalated.
“The bottom of the card indicates that if these conditions exist, you need to call the attending physician,” says Hoppes.
• Be familiar with the supervisory guidelines for your particular specialty, as to what is and is not recommended practice.
The “golden rule” in the supervision of residents is this: to know exactly what is expected and “reasonable” within your particular field, department, and institution, says Mathura. For example, many hospitals have guidelines that specify that residents may not place subclavian, internal jugular, femoral, or Swan-Ganz central venous catheters or insert arterial lines, chest tubes, or endotracheal tubes without attending supervision.
However, if a resident were the sole physician on a floor and a patient arrested and needed the placement of an endotracheal tube, he or she would be penalized for not performing the procedure, notes Mathura. “In exigent or emergency circumstances, the resident will eventually be charged with doing what a similarly situated resident would have done under like circumstances,” she says. (See related stories on negligent supervision, below, and claims involving fatigue, below.)
1. Singh H, Thomas EJ, Petersen LA, et al. Medical errors involving trainees: a study of closed malpractice claims from 5 insurers. Arch Intern Med 2007; 167(19):2030-2036.
Claims often allege negligent supervision
The most common medical malpractice allegation involving residents or interns and an attending physician is negligent supervision, according to Karen Byank Mathura, RN, JD, CPHRM, a claims and risk management consultant in the Bethesda, MD, office of RCM&D, and a former medical malpractice defense attorney.
“Once the allegation is asserted, it is very difficult battle,” says Mathura, adding that she has seen many such claims. “Even in obstetrics, while the majority of deliveries go off without a hitch, an allegation of negligent supervision can quickly arise,” she says. Mathura has reviewed several lawsuits in which the attending obstetrician was tied up in the OR performing an emergent caesarian section and the resident was forced to deliver a seemingly uneventful birth, unsupervised.
“Whether a shoulder dystocia with associated brachial plexus injuries occurs, a vacuum extraction results in extensive hematomas and potential neurological injury, or most significantly, there are decelerations with alleged hypoxic ischemic encephalopathy, both the delivering resident and the supervising attending will get named in the patient’s claim or lawsuit,” says Mathura.
These circumstances, albeit rare, “are incredibly difficult to prevent, especially at smaller, community hospitals without a large, on-site, attending OB presence,” she says.
Negligence is proven by the “reasonable person” standard: whether a reasonable person could have foreseen the injuries or loss that was sustained under very similar or like circumstances, Mathura explains.
“Negligent supervision comes into play when someone who is charged with the duty to supervise neglects that role, intentionally or not, and allows the lesser-qualified individual to perform the task at hand,” she says. For example, a claim might involve an unsupervised intravitreal injection or surgical procedure. Even if the attending physician argues that the intern or resident was not “under his or her control,” a plaintiff’s attorney could successfully argue that “control” is not necessary, she adds.
“If you as the attending failed to exercise reasonable care and caution while fulfilled your supervisory duties, you could be liable,” says Mathura. For example, if you are charged with supervising an intern or resident by being on call for a particular service, it is ultimately your responsibility to supervise, even if the misadventure occurred at 3 a.m. and you, as the attending, were asleep in your bed.
If an injury occurred and it was arguably causally connected to the lack of your supervision, a judge or jury would be asked to apply the “reasonable person” standard, says Mathura.
“If a conclusion were reached that you should have come into the hospital at 3 a.m. and examined the patient yourself, then you may be as liable as the intern or resident who committed the deviation,” Mathura explains.
Fatigue and workload are factors in lawsuits
The prevalence of medical malpractice claims against medical residents and interns is attributable to several factors, including fatigue, according to Stephanie M. Godfrey, JD, an attorney in the Philadelphia office of Pepper Hamilton.
“A physician-in-training who is not technically competent, has an excessive workload, and lacks sleep is more likely to produce poor patient outcomes and medical errors than a seasoned physician, especially in circumstances where supervision is minimal,” says Godfrey.
Residency programs must “tread a fine line” of allowing residents and interns to obtain hands-on-training and develop confidence in their own skills while ensuring that patients’ lives are not endangered, she says. “Plaintiff’s attorneys include medical residents and interns in medical malpractice lawsuits to ensure that every person who may bear responsibility for their clients’ injuries is included in the lawsuit,” Godfrey emphasizes. She suggests these strategies to reduce the risk of bad outcomes resulting from fatigued residents or interns:
• Implement and enforce hours restrictions applicable to residents and interns.
• Ensure that supervising physicians are vigilant about recognizing and providing necessary support for overly fatigued or otherwise impaired physicians.
• Periodically review policies and procedures for effectiveness and to ensure that they are consistent with applicable guidelines.
• Standardize patient care management and procedures for handoffs.
Implement checklists and protocols to ensure that residents and interns are aware of proper procedures and what is expected of them, says Godfrey. “Use best practices when caring for patients, communicate effectively when transitioning the care of a patient to another physician, and document every step,” she advises.