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Attending Residents

Malpractice Claims Against Emergency Residents Allege Lack of Supervision

By Stacey Kusterbeck, Special for

As emergency physicians (EPs) who regularly work with trainees, Rachel A. Lindor, MD, JD, and colleagues often wondered about the liability implications of their role. Insurance databases show trainees are named in many malpractice lawsuits. “But we could not find any studies that really delved into the details of what those cases involved,” says Lindor, an EP and associate chair of research at Mayo Clinic Phoenix campus.

Lindor and colleagues analyzed 60 medical malpractice lawsuits that were filed between 1982 and 2017 involving trainees in emergency departments (EDs). There were known outcomes for half the cases. Of those, 30% were decided in favor of the patient, 42% were resolved in favor of the physician, and 28% were settled without going to trial.

Reasons for Litigation

The plaintiffs in the malpractice cases alleged they were harmed by diagnostic, treatment, and procedural errors made by residents. Frequently, the claims alleged the bad outcome occurred because the resident lacked direct supervision. “Lack of adequate supervision for trainees, especially during invasive procedures, remains a high-risk practice within the ED,” Lindor asserts.

In 21 of the malpractice cases, the plaintiff attorney alleged no attending physician, at any time, was directly involved in the patient’s care. In 11 cases, the attending was noted to have seen the patient at some point during the ED visit. In the rest of the cases, it was unclear whether the attending actually was involved in the patient’s care because of limited information provided in court reports. “A fairly large percentage of the lawsuits revolved around procedural errors, some of which went very wrong,” Lindor notes.

In two malpractice cases, vascular injuries occurred when residents performed procedures with no direct supervision. One of those cases involved a trainee who placed a femoral line into the patient’s artery rather than the vein, resulting in the patient needing amputation of a limb. The other case involved a resident inadvertently puncturing a patient’s heart while placing a subclavian line, resulting in the death of a child.

“We wanted to give people a shot over the bow to keep their guard up. Not working closely with students and residents may be to the detriment of the patients, and to the students, and to yourself,” warns John Shufeldt, MD, JD, MBA, FACEP, another study author. Shufeldt is an EP and principal of Shufeldt Consulting in Scottsdale, AZ.

“This is not a small issue. There are risks,” Shufeldt adds. “You have to watch trainees closely, because they don’t yet have the wealth of experience that attendings have.”

Did the Attending Actually See the Patient?

The attending physician can be held legally responsible for terrible outcomes, regardless of the degree of the attending’s involvement. “The attending physician cannot escape liability by not seeing the patient,” Lindor says.

In this regard, malpractice cases involving trainees are somewhat analogous to cases involving advanced practice providers. In both situations, attending physicians are in a supervisory relationship with residents. “Attendings are often surprised when they are named in lawsuits in which they did not see the patients or were not aware that the patients were ever seen, even when hospital bylaws or other requirements mandate active supervision,” Lindor says.

Often, attendings are busy with other patients and tasks, and the resident presents a case that appears straightforward. However, signing off on the case without direct involvement is legally risky.

As an attorney and expert witness, Shufeldt has reviewed multiple cases of patients who were misdiagnosed by residents in EDs. Shufeldt offers this hypothetical case: The resident tells the attending the patient is complaining of a headache and sinusitis, adding the patient briefly mentioned some vague vision issues. In that case, the vision issues should raise suspicion for cavernous sinus thrombosis, according to Shufeldt.

“It’s super rare; but if you miss it, it’s a pretty significant morbidity and mortality event,” Shufeldt says.

That serious diagnosis could be missed if the attending simply signs off on the resident’s plan to discharge the patient with a prescription for antibiotics. In contrast, by evaluating the patient in person and considering the history more carefully, the attending physician would have the opportunity to make the correct diagnosis.

Recently, Shufeldt reviewed a case involving a patient with a sore throat and a negative strep screen. The patient was discharged home by a physician assistant (PA) with a diagnosis of “sore throat.” Shortly after, the patient died from adult epiglottitis, and the family filed a lawsuit.

At deposition, the PA admitted being unaware the condition appeared in adults. The emergency medicine experts who reviewed the chart for the defense attorney believed strongly that the correct diagnosis could have been made in the ED.

The problem was the PA did not see any reason to consider an alternative diagnosis and anchored on the most benign reason for the sore throat. Therefore, the PA did not see any need to consult with the supervising physician. The case was settled before trial.

“Although this particular case was in an urgent care, the same situation could easily happen in an ED with a resident,” Shufeldt says.

Patients are misdiagnosed because residents do not know enough to realize they should consider a more obscure diagnosis. “That’s why they’re in training. The impetus is on the attending to make sure they do consider it,” Shufeldt says.

Shufeldt says the best approach for attending physicians, from both a patient safety and risk management perspective, is to be approachable. This can prevent many issues, since residents will feel comfortable going to the attending if there is any doubt about the diagnosis.

What Are the Hospital Policies on Resident Supervision?

Some EDs require attendings to see every patient before the resident discharges the patient. “If the policy says that and you don’t see the patient, it’s a slam dunk argument for the plaintiff,” Shufeldt says.

Overly specific hospital policies can be legally problematic. Such policies set the expectation for a higher, sometimes unrealistic, standard of care. The policy may state no resident will see an Emergency Severity Index (ESI) Level 3 without direct involvement of the attending. If a patient is initially triaged as an ESI Level 4, and is seen by the resident, the plaintiff attorney can argue the patient should have been triaged as an ESI Level 3, based on the published criteria.

That would mean the hospital policy required the attending to see the patient. The plaintiff attorney will look for a note from the attending physician in the medical record. If there is no such documentation, it opens the door for the attorney to allege a policy violation. “You’ve set yourself up for problems, because by definition you’ve fallen below your own standard of care,” Shufeldt explains. “I’ve seen facilities totally shoot themselves in the foot because of the wrong policy.”

Ideally, policies on resident supervision are well-vetted with risk management, with enough flexibility to be defensible. But regardless of what the policy says, the attending physician is likely to be named in any lawsuit involving residents. Jurors might wonder: “How could the attending not have directly supervised the resident?”

“Unfortunately, juries don’t understand the exigencies of emergency medicine, and will not understand how we could not know about every patient in the ED,” Shufeldt says.

What Did the Attending Document?

Some attendings use a macro that says something like, “I have seen and evaluated the patient. I agree with the resident’s note as documented.”

“Once you do that, you are basically saying you are assuming liability for the patient’s outcome. If something happens, you are absolutely on the hook,” Shufeldt warns.

The plaintiff attorney will ask questions like, “Isn’t that what you are there for, to supervise and help residents who are seeing patients?” The only truthful response to that question is “yes.”

The attorney will follow up with, “Then why didn’t you see the patient?”

Which Provider Billed for the Care?

Even if the resident saw the patient, it’s possible the care gets billed under the attending’s provider number. If the attending never saw the patient, “that’s very problematic,” according to Shufeldt.

If the chart is billed under the attending’s provider number, then the attending needs to see the patient and document the visit in the medical record. The problem is that after attending physicians sign off on the chart, they do not know what happens next from a coding and billing standpoint. If allegations of fraudulent billing arise, says Shufeldt, “they may feel that the billing company should be liable because they’re the ones that sent the bill. But that excuse doesn’t save you.”

Medicolegal Education for Residents

Nicole M. Chicoine Mooney, JD, MD, is a clinical instructor at the University of Washington Department of Emergency Medicine. Chicoine Mooney developed a program called the “52 Weeks of MedicoLegal Pearls,” with an educational email sent every week of the residents’ academic year.

Recently, residents received this “pearl” on documentation from Chicoine Mooney:

“We must remind ourselves that the standard of care among any physician/specialty is not perfection, but what a reasonable physician with similar training and experience would do under similar circumstances at the time of presentation. How do we demonstrate that our care was reasonable? We document our reasoning behind our decisions as they relate to the patient’s laboratory and imaging workup, treatment plan, and ultimate diagnosis. Do not just list diagnoses you considered! Educate the reader as to why you believe the patient’s presentation is most consistent with a diagnosis and less consistent with other possible diagnoses. In your ‘written reasoning,’ incorporate the patient’s history, presentation, vitals, notable physical exam findings (or lack thereof), and imaging and laboratory results. Rationalizing your ultimate diagnosis and treatment plan with the data you have at the time will demonstrate you acted reasonably under the circumstances. One can make a horrible judgment, but if your rationale is reasonable, even if wrong, you’re (usually) off the hook.”

Residents are unlikely to comprehend the complexities that determine who is ultimately held liable in malpractice litigation. “In the 1980s, many states changed the joint and several liability laws that apply in tort cases,” says William S. Bailey, JD, a professor at the University of Washington School of Law.

The revised standard requires a plaintiff lawyer to assess the totality of fault in any personal injury case. If the lawyer does not name as a defendant any entity who is later found to be at least partially at fault, any “share” attributable to that entity is subtracted from the recovery. “In that failing to name all necessary parties in potential legal malpractice – this has led to an over-inclusiveness in targeting defendants,” Bailey says.

For this reason, plaintiff attorneys typically take a hard look at naming any physician who appears on the chart. In cases involving residents, that includes the attending physician. However, plaintiff attorneys may form a strategic alliance with the attending physician and their lawyer if the hospital’s lack of proper supervision or staffing are the root cause of the bad outcome. “This is called ‘pleading in the alternative.’ A physician may be named, but not actually blamed, in the case,” Bailey explains.

The Supervision Problem

Lack of supervision is a much-used — and often effective – liability theory when a bad outcome occurs in a hospital and residents are involved, according to Bailey. Typical cases allege the resident was not given proper supervision or training by the hospital. “This happens far too often,” Bailey asserts. “My strong opinion is that residents are exploited as ‘cheap labor’ in many settings.”

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. “Plaintiff’s lawyers prefer to go after the healthcare institution itself whenever possible, rather than the individual physicians involved,” Bailey says.

This opens up the possibility of finger-pointing in malpractice cases with a resident and the hospital as co-defendants. “The hospital is by far the most attractive target for a plaintiff lawyer, as jurors do not generally have good feelings about large healthcare organizations,” Bailey says.

Placing blame on the hospital for lack of supervision could be an effective defense for the resident. However, insurance company involvement sometimes enters the picture, compromising the resident’s ability to make this argument. Often, the insurer assigns the same attorney to the hospital and the resident.

Even though there may be a clear conflict of interest between the two defendants, the resident is not informed of their right to seek independent counsel. Frequently, says Bailey, “the resident is told only that they have a ‘duty to cooperate’ with the insurance company in order to be covered.”

Bailey once represented a young oral surgery resident who performed a procedure in a hospital that left the patient with a nerve injury. “The insurance company was poised to push him under the bus, doing the hospital’s bidding,” Bailey recalls.

The jury ruled the resident had deviated from the standard of care, but did not blame the resident. Instead, the jury blamed the hospital for not properly supervising the resident. “The jury definitely sympathized with the resident, feeling like he did not get much help or supervision — which, as we know, sadly, is often the case,” Bailey says.

For more on this subject, be sure to read the upcoming November 2023 issue of ED Management.