Emergency Medicine Residents Should Be Aware of Legal Exposure
By Stacey Kusterbeck
At the University of Washington (UW), an annual Medicolegal Day program prepares emergency medicine residents for the medical malpractice issues they will be faced with daily as practicing physicians. “It covers the basics of a medical malpractice case, capacity, durable power of attorney, and the importance of documentation,” reports Nicole M. Chicoine Mooney, JD, MD, co-chair of the program and a clinical instructor at UW Department of Emergency Medicine.
The event, held jointly with the UW School of Law, includes a presentation on the basic elements of a medical malpractice lawsuit, along with information on lessons learned from prior medical malpractice cases. Attendees participate in a mock deposition based on a real-life missed diagnosis emergency medicine case, with UW law students deposing the UW emergency medicine residents. At the end, there is a Q&A forum with a panel of plaintiff and defense medical malpractice attorneys.
About 100 participants attended the 2023 event, including residents, attending physicians, law students, and attorneys. Residents asked many questions about charting practices and documentation, which often form the basis of malpractice lawsuits. “The panel of plaintiff and defense lawyers pointed out ways to avoid liability exposure in charting the diagnosis and treatment of a patient,” says William S. Bailey, JD, co-chair of the Medicolegal Day program and a professor at UW School of Law.
Residents also wanted to know who would be held liable for malpractice. “It is hard to make definitive statements on who is liable, as every case is different,” Bailey says.
Peripheral players in the patient’s care can be drawn into the litigation, depending on the facts of the case. “The number of physicians involved and the practices of the healthcare facility in which they practice make it challenging to sort this out,” Bailey explains.
Chicoine Mooney notes residents are not always individually named in malpractice lawsuits. In some states, residents are named only if their care amounts to gross negligence; the supervising physician and hospital are named more commonly. In other states, residents, supervising physicians, and hospitals all are named as defendants (or only the hospital).
“To determine whether an emergency medicine resident breached their duty of care, courts will assess whether the resident’s care fell below the degree of care and skill that another reasonably competent emergency medicine resident would provide in similar circumstances,” Chicoine Mooney says.
To alleviate malpractice risks involving residents, attendings should implement a reasonable and adequate plan for the patient along with the resident; review the patient’s lab and imaging results; and, ultimately, be the decision-maker as to the patient’s ultimate disposition. “Attendings must actively supervise their residents, including interviewing and examining all patients separately from the resident,” Chicoine Mooney advises.
Attendings must review the resident’s ED note, revising it as appropriate. “Ensure the medical decision-making articulates the decision-making. From the plaintiff’s lawyers’ perspective, if it is not documented it didn’t happen,” Chicoine Mooney says.
ED leaders also can provide education for attending physicians and residents on the medicolegal issues that arise in everyday practice.
However, EDs in teaching hospitals are extremely busy, and often lack adequate resources to provide the necessary supervision. In Bailey’s experience, jurors are more likely to fault the hospital than the resident.
(Editor’s Note: For much more on this subject, including why and when residents are named in litigation, along with tips on how to prevent these lawsuits, click this link to read an exclusive online-only feature by the author.)
To alleviate malpractice risks involving residents, attendings should implement a reasonable and adequate plan for the patient along with the resident; review the patient’s lab and imaging results; and, ultimately, be the decision-maker as to the patient’s ultimate disposition.
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