S.Y. TAN

Question: Which of the following is not a violation of Medicare/Medicaid fraud statutes?

A. Referring patients to a lab of which your spouse is part owner.

B. Hospital “remuneration,” such as below-market office leases or expensive tickets to events.

C. Forgiving the copay portion of a retired colleague's bill.

D. Marketing Food and Drug Administration-approved drugs for off-label use.

E. Negligently submitting a wrong-patient Medicare claim.

Best answer: E. Choice E is analyzed under the False Claims Act, which imposes liability for knowingly submitting a payment demand to Medicare/Medicaid. Legally, this means having actual knowledge (scienter) that the claim is false or acting in deliberate or reckless indifference to the truth. However, an error that is negligently committed is insufficient to constitute a violation. Choice A is a direct violation of the Stark Law against self-referral, and B and C are violations of the Anti-Kickback Statute (AKS). The current 2011 threshold is $359 for “complimentary” tickets to events, and the government has warned that routinely waiving copayments could implicate the AKS. Choice D, of special relevance to pharmaceutical and device manufacturers, is illegal under the False Claims Act. Whereas doctors are allowed to prescribe drugs or devices for an off-label indication, the law forbids a manufacturer from marketing its products for a non-FDA–approved use.

With an annual budget of almost $1 trillion, it is estimated that some 10% or up to $100 billion of Medicare/Medicaid funds are lost to fraud, waste, and abuse. The Office of Inspector General is the independent oversight agency regulating such sources of loss. “Fraud” includes the obtaining something of value through intentional misrepresentation or concealment of material facts, “waste” includes the incurring of unnecessary costs as a result of deficient management, practices, systems, or controls, and “abuse” includes any practice that is not consistent with the goals of providing patients with services that are medically necessary, meet professionally recognized standards, and are fairly priced. A Roadmap for New Physicians: Avoiding Medicare and Medicaid Fraud and Abuse is available at http://oig.hhs.gov/compliance/physician-education/index.asp

To combat fraud, waste, and abuse, Congress has enacted three separate laws: The False Claims Act, the Anti-Kickback Statute, and the Physician Self-Referral Statute. In addition, states have their own versions of these laws. Stiff penalties for violations include fines, restriction of practice privileges, and imprisonment. More than 5,000 physicians in the United States are currently excluded from participation in Medicare/Medicaid programs because of violations (N. Engl. J. Med. 2011;364:102-3).

It is illegal under the False Claims Act to submit false or fraudulent claims for payment to Medicare or Medicaid (31 U.S.C. §§3729-3733). Private individuals, frequently former employees, consultants, even competitors, can file a so-called qui tam action alone or in concert with the government, and they stand to collect a substantial bounty in the event the prosecution proves successful. The Act originated during the Civil War, when increased government procurement led to fraudulent claims by contracting parties, prompting President Abraham Lincoln to state: “Worse than traitors in arms are the men who pretend loyalty to the flag, feast and fatten on the misfortunes of the Nation while patriotic blood is crimsoning the plains of the South, and their countrymen are moldering in the dust.”

In the health care field, claims may be false if the service is not actually rendered to the patient, is provided but already covered under another claim, is miscoded, or is not supported by the medical record. Intent to defraud is not a required element; deliberate ignorance or reckless disregard of the truth will suffice. Whistle-blowers, that is, qui tam plaintiffs, can receive up to 30% of any False Claims Act recovery. Penalties are severe and include treble damages, costs and attorney fees, and fines of $11,000 per false claim. Imprisonment and criminal fines are additional penalties.

One of the latest criminal schemes to defraud Medicare involved organized crime's establishment of more than 100 bogus clinics in 25 states, using stolen identities of doctors and patients. The government became suspicious when submitted bills purportedly came from ophthalmologists for bladder tests, ENT surgeons for ultrasounds, and office visits from a forensic pathologist. The Department of Justice has reportedly arrested 28 people linked to this fraud (BMJ 2010;341:c5865).

Under the Anti-Kickback Statute (42 U.S.C. §1320a-7b), it is illegal to knowingly or willfully offer, pay, solicit, or receive remuneration, directly or indirectly, in cash or in kind, in exchange for referring an individual or furnishing or arranging for a good or service, and for which payment may be made under Medicare or Medicaid. Importantly, the case of the United States v. Greber established that there is a statutory violation even if only one purpose of the remuneration is to induce referrals. Several hospitals have paid multimillion dollar settlements for kickback “remunerations.”

The Physician Self-Referral Statute, commonly called the Stark Law, prohibits a physician from making a referral to an entity for the furnishing of a designated health service for which payment may be made under Medicare or Medicaid if the physician or an immediate family member has a financial relationship with the entity, unless an exception applies. This being a strict liability law, no proof of specific intent is required. There are strict, complex, and narrowly construed “safe harbors” and exceptions to both the Anti-Kickback and Stark laws, but the field is complex, so providers contemplating health care business deals should proceed cautiously and seek specific advice from experienced legal counsel.

Question: Which of the following is not a violation of Medicare/Medicaid fraud statutes?

A. Referring patients to a lab of which your spouse is part owner.

B. Hospital “remuneration,” such as below-market office leases or expensive tickets to events.

C. Forgiving the copay portion of a retired colleague's bill.

D. Marketing Food and Drug Administration-approved drugs for off-label use.

E. Negligently submitting a wrong-patient Medicare claim.

Best answer: E. Choice E is analyzed under the False Claims Act, which imposes liability for knowingly submitting a payment demand to Medicare/Medicaid. Legally, this means having actual knowledge (scienter) that the claim is false or acting in deliberate or reckless indifference to the truth. However, an error that is negligently committed is insufficient to constitute a violation. Choice A is a direct violation of the Stark Law against self-referral, and B and C are violations of the Anti-Kickback Statute (AKS). The current 2011 threshold is $359 for “complimentary” tickets to events, and the government has warned that routinely waiving copayments could implicate the AKS. Choice D, of special relevance to pharmaceutical and device manufacturers, is illegal under the False Claims Act. Whereas doctors are allowed to prescribe drugs or devices for an off-label indication, the law forbids a manufacturer from marketing its products for a non-FDA–approved use.

With an annual budget of almost $1 trillion, it is estimated that some 10% or up to $100 billion of Medicare/Medicaid funds are lost to fraud, waste, and abuse. The Office of Inspector General is the independent oversight agency regulating such sources of loss. “Fraud” includes the obtaining something of value through intentional misrepresentation or concealment of material facts, “waste” includes the incurring of unnecessary costs as a result of deficient management, practices, systems, or controls, and “abuse” includes any practice that is not consistent with the goals of providing patients with services that are medically necessary, meet professionally recognized standards, and are fairly priced. A Roadmap for New Physicians: Avoiding Medicare and Medicaid Fraud and Abuse is available at http://oig.hhs.gov/compliance/physician-education/index.asp

To combat fraud, waste, and abuse, Congress has enacted three separate laws: The False Claims Act, the Anti-Kickback Statute, and the Physician Self-Referral Statute. In addition, states have their own versions of these laws. Stiff penalties for violations include fines, restriction of practice privileges, and imprisonment. More than 5,000 physicians in the United States are currently excluded from participation in Medicare/Medicaid programs because of violations (N. Engl. J. Med. 2011;364:102-3).

It is illegal under the False Claims Act to submit false or fraudulent claims for payment to Medicare or Medicaid (31 U.S.C. §§3729-3733). Private individuals, frequently former employees, consultants, even competitors, can file a so-called qui tam action alone or in concert with the government, and they stand to collect a substantial bounty in the event the prosecution proves successful. The Act originated during the Civil War, when increased government procurement led to fraudulent claims by contracting parties, prompting President Abraham Lincoln to state: “Worse than traitors in arms are the men who pretend loyalty to the flag, feast and fatten on the misfortunes of the Nation while patriotic blood is crimsoning the plains of the South, and their countrymen are moldering in the dust.”

In the health care field, claims may be false if the service is not actually rendered to the patient, is provided but already covered under another claim, is miscoded, or is not supported by the medical record. Intent to defraud is not a required element; deliberate ignorance or reckless disregard of the truth will suffice. Whistle-blowers, that is, qui tam plaintiffs, can receive up to 30% of any False Claims Act recovery. Penalties are severe and include treble damages, costs and attorney fees, and fines of $11,000 per false claim. Imprisonment and criminal fines are additional penalties.

One of the latest criminal schemes to defraud Medicare involved organized crime's establishment of more than 100 bogus clinics in 25 states, using stolen identities of doctors and patients. The government became suspicious when submitted bills purportedly came from ophthalmologists for bladder tests, ENT surgeons for ultrasounds, and office visits from a forensic pathologist. The Department of Justice has reportedly arrested 28 people linked to this fraud (BMJ 2010;341:c5865).

Under the Anti-Kickback Statute (42 U.S.C. §1320a-7b), it is illegal to knowingly or willfully offer, pay, solicit, or receive remuneration, directly or indirectly, in cash or in kind, in exchange for referring an individual or furnishing or arranging for a good or service, and for which payment may be made under Medicare or Medicaid. Importantly, the case of the United States v. Greber established that there is a statutory violation even if only one purpose of the remuneration is to induce referrals. Several hospitals have paid multimillion dollar settlements for kickback “remunerations.”

The Physician Self-Referral Statute, commonly called the Stark Law, prohibits a physician from making a referral to an entity for the furnishing of a designated health service for which payment may be made under Medicare or Medicaid if the physician or an immediate family member has a financial relationship with the entity, unless an exception applies. This being a strict liability law, no proof of specific intent is required. There are strict, complex, and narrowly construed “safe harbors” and exceptions to both the Anti-Kickback and Stark laws, but the field is complex, so providers contemplating health care business deals should proceed cautiously and seek specific advice from experienced legal counsel.

Question: Which of the following is not a violation of Medicare/Medicaid fraud statutes?

A. Referring patients to a lab of which your spouse is part owner.

B. Hospital “remuneration,” such as below-market office leases or expensive tickets to events.

C. Forgiving the copay portion of a retired colleague's bill.

D. Marketing Food and Drug Administration-approved drugs for off-label use.

E. Negligently submitting a wrong-patient Medicare claim.

Best answer: E. Choice E is analyzed under the False Claims Act, which imposes liability for knowingly submitting a payment demand to Medicare/Medicaid. Legally, this means having actual knowledge (scienter) that the claim is false or acting in deliberate or reckless indifference to the truth. However, an error that is negligently committed is insufficient to constitute a violation. Choice A is a direct violation of the Stark Law against self-referral, and B and C are violations of the Anti-Kickback Statute (AKS). The current 2011 threshold is $359 for “complimentary” tickets to events, and the government has warned that routinely waiving copayments could implicate the AKS. Choice D, of special relevance to pharmaceutical and device manufacturers, is illegal under the False Claims Act. Whereas doctors are allowed to prescribe drugs or devices for an off-label indication, the law forbids a manufacturer from marketing its products for a non-FDA–approved use.

With an annual budget of almost $1 trillion, it is estimated that some 10% or up to $100 billion of Medicare/Medicaid funds are lost to fraud, waste, and abuse. The Office of Inspector General is the independent oversight agency regulating such sources of loss. “Fraud” includes the obtaining something of value through intentional misrepresentation or concealment of material facts, “waste” includes the incurring of unnecessary costs as a result of deficient management, practices, systems, or controls, and “abuse” includes any practice that is not consistent with the goals of providing patients with services that are medically necessary, meet professionally recognized standards, and are fairly priced. A Roadmap for New Physicians: Avoiding Medicare and Medicaid Fraud and Abuse is available at http://oig.hhs.gov/compliance/physician-education/index.asp

To combat fraud, waste, and abuse, Congress has enacted three separate laws: The False Claims Act, the Anti-Kickback Statute, and the Physician Self-Referral Statute. In addition, states have their own versions of these laws. Stiff penalties for violations include fines, restriction of practice privileges, and imprisonment. More than 5,000 physicians in the United States are currently excluded from participation in Medicare/Medicaid programs because of violations (N. Engl. J. Med. 2011;364:102-3).

It is illegal under the False Claims Act to submit false or fraudulent claims for payment to Medicare or Medicaid (31 U.S.C. §§3729-3733). Private individuals, frequently former employees, consultants, even competitors, can file a so-called qui tam action alone or in concert with the government, and they stand to collect a substantial bounty in the event the prosecution proves successful. The Act originated during the Civil War, when increased government procurement led to fraudulent claims by contracting parties, prompting President Abraham Lincoln to state: “Worse than traitors in arms are the men who pretend loyalty to the flag, feast and fatten on the misfortunes of the Nation while patriotic blood is crimsoning the plains of the South, and their countrymen are moldering in the dust.”

In the health care field, claims may be false if the service is not actually rendered to the patient, is provided but already covered under another claim, is miscoded, or is not supported by the medical record. Intent to defraud is not a required element; deliberate ignorance or reckless disregard of the truth will suffice. Whistle-blowers, that is, qui tam plaintiffs, can receive up to 30% of any False Claims Act recovery. Penalties are severe and include treble damages, costs and attorney fees, and fines of $11,000 per false claim. Imprisonment and criminal fines are additional penalties.

One of the latest criminal schemes to defraud Medicare involved organized crime's establishment of more than 100 bogus clinics in 25 states, using stolen identities of doctors and patients. The government became suspicious when submitted bills purportedly came from ophthalmologists for bladder tests, ENT surgeons for ultrasounds, and office visits from a forensic pathologist. The Department of Justice has reportedly arrested 28 people linked to this fraud (BMJ 2010;341:c5865).

Under the Anti-Kickback Statute (42 U.S.C. §1320a-7b), it is illegal to knowingly or willfully offer, pay, solicit, or receive remuneration, directly or indirectly, in cash or in kind, in exchange for referring an individual or furnishing or arranging for a good or service, and for which payment may be made under Medicare or Medicaid. Importantly, the case of the United States v. Greber established that there is a statutory violation even if only one purpose of the remuneration is to induce referrals. Several hospitals have paid multimillion dollar settlements for kickback “remunerations.”

The Physician Self-Referral Statute, commonly called the Stark Law, prohibits a physician from making a referral to an entity for the furnishing of a designated health service for which payment may be made under Medicare or Medicaid if the physician or an immediate family member has a financial relationship with the entity, unless an exception applies. This being a strict liability law, no proof of specific intent is required. There are strict, complex, and narrowly construed “safe harbors” and exceptions to both the Anti-Kickback and Stark laws, but the field is complex, so providers contemplating health care business deals should proceed cautiously and seek specific advice from experienced legal counsel.

Question: Patient underwent uneventful varicocelectomy and was warned not to get out of bed. However, instead of using the bedpan as instructed, he walked to the bathroom, fell off the toilet seat, and injured his groin. The doctor did not examine him until several days later and found a large scrotal hematoma. The patient eventually developed testicular atrophy. Expert testimony apportioned 40% of the damage to the fall, and 60% to the doctor's delay in diagnosis and evacuating the hematoma. In a lawsuit for medical malpractice, which of the following choices is best?

A. This is a case of contributory negligence.

B. This is a case of assumption of risk.

C. Damages are to be reduced by 40%.

D. A and B are correct.

E. A and C are correct.

Answer: E. To win a malpractice lawsuit, the plaintiff must prove, with a preponderance of evidence, the four elements of negligence: duty, breach, causation, and damages. However, the law allows for affirmative defenses that can defeat, in whole or in part, a malpractice action even if the evidence satisfies all four elements. One of these affirmative defenses is contributory negligence, which requires the claimant to be partly at fault. At common law, any degree of negligence on the part of the plaintiff constituted a complete defense. This was felt to be overly harsh to the victim who may have been only slightly careless, so the law gradually changed to where the amount of damages is proportionately reduced by the percentage of plaintiff's negligence.

This is called contributory or more accurately, comparative negligence, and many states have enacted statutes covering this defense, e.g., Florida's §768.819 (4) (a), Fla. Stat. (1993). In the above hypothetical case, the 40% negligent plaintiff will be able to recover only 60% damages. In some states, if the plaintiff is more than 50% negligent, that is, fault greater than the defendant's, then no recovery is allowed. In a few jurisdictions (five at last count), strict contributory rather than comparative negligence still remains the law.

Assumption of risk is a complete bar to recovery and requires both full knowledge of risk and manifest consent on the part of the claimant. The facts in this case are insufficient to sustain this defense. Assumption of risk is commonly invoked as a defense in sports injuries, but rarely in medical malpractice.

In order for the defense to successfully plead contributory negligence, there must be a showing that the plaintiff had acted without reasonable regard for his or her own safety. In a Florida case of thrombophlebitis that developed following a fracture, the patient omitted her physical therapy, failed to elevate her legs, continued smoking, and remained inactive in bed for several days, all against medical advice. The jury found the claimant 45% comparatively negligent, which was upheld on appeal.

However, the defense of contributory negligence is not always successful. In Weil v. Seltzer, the patient was treated for many years with steroids that his doctor represented to be antihistamines. He developed steroid complications, and died suddenly at age 54 years from a saddle block pulmonary embolus that contained bone marrow fragments, thought to have originated from steroid-induced osteoporotic bones. The court dismissed the defense of contributory negligence, as there was insufficient evidence to show that the patient knew he was taking steroids and could not have reasonably informed his other treating physicians of this fact.

In a case of missed diagnosis of popliteal artery laceration, a court refused to instruct the jury regarding contributory negligence where the patient did not receive specific instructions regarding an earlier return to the emergency room and it was questionable whether an earlier return would have made a difference. And in Gray v. Brock, the Missouri Court of Appeals reversed a lower court's judgment of 82% contributory negligence after finding no evidence that the plaintiff had actual knowledge that his diabetes was out of control or that it contributed to his death.

Contributory negligence, which speaks to plaintiff fault, should be differentiated from “loss of a chance,” where defendant's act or omission deprived plaintiff of an opportunity of avoiding or reducing resultant injury. The former is a defense argument, and the latter, a plaintiff argument. Contributory negligence translates into a proportionate reduction in damages. On the other hand, some jurisdictions require the underlying risk in “loss of a chance” cases to be over 50% to begin with, and/or may require the lost chance to itself increase the risk by greater than 50% before allowing any recovery.

Claimant's negligence must be a cause of, not merely incidental to, the sustained injury. For example, a negligent rider on a traxcavator who was injured after being struck from behind by the careless driver of a dumper truck was found to be contributorily negligent. However, the court pointed out that contributory negligence would not have been a defense had he been injured instead by an incidental stray shot from a negligent sportsman.

In a recent Tennessee case, a patient sustained a cardiac arrest because of negligent monitoring during a CT scan. His antecedent negligence stemmed from the fact that he had alcohol in his blood upon arrival at the hospital following a car accident. The state Supreme Court found the hospital 100% liable and disallowed the jury's assessment of 30% comparative fault, holding that “principles of comparative fault did not apply such as to allow fault to be assessed to patient, and thus jury should not have been allowed to consider patient's antecedent negligence in assessing fault.”

Question: Patient underwent uneventful varicocelectomy and was warned not to get out of bed. However, instead of using the bedpan as instructed, he walked to the bathroom, fell off the toilet seat, and injured his groin. The doctor did not examine him until several days later and found a large scrotal hematoma. The patient eventually developed testicular atrophy. Expert testimony apportioned 40% of the damage to the fall, and 60% to the doctor's delay in diagnosis and evacuating the hematoma. In a lawsuit for medical malpractice, which of the following choices is best?

A. This is a case of contributory negligence.

B. This is a case of assumption of risk.

C. Damages are to be reduced by 40%.

D. A and B are correct.

E. A and C are correct.

Answer: E. To win a malpractice lawsuit, the plaintiff must prove, with a preponderance of evidence, the four elements of negligence: duty, breach, causation, and damages. However, the law allows for affirmative defenses that can defeat, in whole or in part, a malpractice action even if the evidence satisfies all four elements. One of these affirmative defenses is contributory negligence, which requires the claimant to be partly at fault. At common law, any degree of negligence on the part of the plaintiff constituted a complete defense. This was felt to be overly harsh to the victim who may have been only slightly careless, so the law gradually changed to where the amount of damages is proportionately reduced by the percentage of plaintiff's negligence.

This is called contributory or more accurately, comparative negligence, and many states have enacted statutes covering this defense, e.g., Florida's §768.819 (4) (a), Fla. Stat. (1993). In the above hypothetical case, the 40% negligent plaintiff will be able to recover only 60% damages. In some states, if the plaintiff is more than 50% negligent, that is, fault greater than the defendant's, then no recovery is allowed. In a few jurisdictions (five at last count), strict contributory rather than comparative negligence still remains the law.

Assumption of risk is a complete bar to recovery and requires both full knowledge of risk and manifest consent on the part of the claimant. The facts in this case are insufficient to sustain this defense. Assumption of risk is commonly invoked as a defense in sports injuries, but rarely in medical malpractice.

In order for the defense to successfully plead contributory negligence, there must be a showing that the plaintiff had acted without reasonable regard for his or her own safety. In a Florida case of thrombophlebitis that developed following a fracture, the patient omitted her physical therapy, failed to elevate her legs, continued smoking, and remained inactive in bed for several days, all against medical advice. The jury found the claimant 45% comparatively negligent, which was upheld on appeal.

However, the defense of contributory negligence is not always successful. In Weil v. Seltzer, the patient was treated for many years with steroids that his doctor represented to be antihistamines. He developed steroid complications, and died suddenly at age 54 years from a saddle block pulmonary embolus that contained bone marrow fragments, thought to have originated from steroid-induced osteoporotic bones. The court dismissed the defense of contributory negligence, as there was insufficient evidence to show that the patient knew he was taking steroids and could not have reasonably informed his other treating physicians of this fact.

In a case of missed diagnosis of popliteal artery laceration, a court refused to instruct the jury regarding contributory negligence where the patient did not receive specific instructions regarding an earlier return to the emergency room and it was questionable whether an earlier return would have made a difference. And in Gray v. Brock, the Missouri Court of Appeals reversed a lower court's judgment of 82% contributory negligence after finding no evidence that the plaintiff had actual knowledge that his diabetes was out of control or that it contributed to his death.

Contributory negligence, which speaks to plaintiff fault, should be differentiated from “loss of a chance,” where defendant's act or omission deprived plaintiff of an opportunity of avoiding or reducing resultant injury. The former is a defense argument, and the latter, a plaintiff argument. Contributory negligence translates into a proportionate reduction in damages. On the other hand, some jurisdictions require the underlying risk in “loss of a chance” cases to be over 50% to begin with, and/or may require the lost chance to itself increase the risk by greater than 50% before allowing any recovery.

Claimant's negligence must be a cause of, not merely incidental to, the sustained injury. For example, a negligent rider on a traxcavator who was injured after being struck from behind by the careless driver of a dumper truck was found to be contributorily negligent. However, the court pointed out that contributory negligence would not have been a defense had he been injured instead by an incidental stray shot from a negligent sportsman.

In a recent Tennessee case, a patient sustained a cardiac arrest because of negligent monitoring during a CT scan. His antecedent negligence stemmed from the fact that he had alcohol in his blood upon arrival at the hospital following a car accident. The state Supreme Court found the hospital 100% liable and disallowed the jury's assessment of 30% comparative fault, holding that “principles of comparative fault did not apply such as to allow fault to be assessed to patient, and thus jury should not have been allowed to consider patient's antecedent negligence in assessing fault.”

Question: Patient underwent uneventful varicocelectomy and was warned not to get out of bed. However, instead of using the bedpan as instructed, he walked to the bathroom, fell off the toilet seat, and injured his groin. The doctor did not examine him until several days later and found a large scrotal hematoma. The patient eventually developed testicular atrophy. Expert testimony apportioned 40% of the damage to the fall, and 60% to the doctor's delay in diagnosis and evacuating the hematoma. In a lawsuit for medical malpractice, which of the following choices is best?

A. This is a case of contributory negligence.

B. This is a case of assumption of risk.

C. Damages are to be reduced by 40%.

D. A and B are correct.

E. A and C are correct.

Answer: E. To win a malpractice lawsuit, the plaintiff must prove, with a preponderance of evidence, the four elements of negligence: duty, breach, causation, and damages. However, the law allows for affirmative defenses that can defeat, in whole or in part, a malpractice action even if the evidence satisfies all four elements. One of these affirmative defenses is contributory negligence, which requires the claimant to be partly at fault. At common law, any degree of negligence on the part of the plaintiff constituted a complete defense. This was felt to be overly harsh to the victim who may have been only slightly careless, so the law gradually changed to where the amount of damages is proportionately reduced by the percentage of plaintiff's negligence.

This is called contributory or more accurately, comparative negligence, and many states have enacted statutes covering this defense, e.g., Florida's §768.819 (4) (a), Fla. Stat. (1993). In the above hypothetical case, the 40% negligent plaintiff will be able to recover only 60% damages. In some states, if the plaintiff is more than 50% negligent, that is, fault greater than the defendant's, then no recovery is allowed. In a few jurisdictions (five at last count), strict contributory rather than comparative negligence still remains the law.

Assumption of risk is a complete bar to recovery and requires both full knowledge of risk and manifest consent on the part of the claimant. The facts in this case are insufficient to sustain this defense. Assumption of risk is commonly invoked as a defense in sports injuries, but rarely in medical malpractice.

In order for the defense to successfully plead contributory negligence, there must be a showing that the plaintiff had acted without reasonable regard for his or her own safety. In a Florida case of thrombophlebitis that developed following a fracture, the patient omitted her physical therapy, failed to elevate her legs, continued smoking, and remained inactive in bed for several days, all against medical advice. The jury found the claimant 45% comparatively negligent, which was upheld on appeal.

However, the defense of contributory negligence is not always successful. In Weil v. Seltzer, the patient was treated for many years with steroids that his doctor represented to be antihistamines. He developed steroid complications, and died suddenly at age 54 years from a saddle block pulmonary embolus that contained bone marrow fragments, thought to have originated from steroid-induced osteoporotic bones. The court dismissed the defense of contributory negligence, as there was insufficient evidence to show that the patient knew he was taking steroids and could not have reasonably informed his other treating physicians of this fact.

In a case of missed diagnosis of popliteal artery laceration, a court refused to instruct the jury regarding contributory negligence where the patient did not receive specific instructions regarding an earlier return to the emergency room and it was questionable whether an earlier return would have made a difference. And in Gray v. Brock, the Missouri Court of Appeals reversed a lower court's judgment of 82% contributory negligence after finding no evidence that the plaintiff had actual knowledge that his diabetes was out of control or that it contributed to his death.

Contributory negligence, which speaks to plaintiff fault, should be differentiated from “loss of a chance,” where defendant's act or omission deprived plaintiff of an opportunity of avoiding or reducing resultant injury. The former is a defense argument, and the latter, a plaintiff argument. Contributory negligence translates into a proportionate reduction in damages. On the other hand, some jurisdictions require the underlying risk in “loss of a chance” cases to be over 50% to begin with, and/or may require the lost chance to itself increase the risk by greater than 50% before allowing any recovery.

Claimant's negligence must be a cause of, not merely incidental to, the sustained injury. For example, a negligent rider on a traxcavator who was injured after being struck from behind by the careless driver of a dumper truck was found to be contributorily negligent. However, the court pointed out that contributory negligence would not have been a defense had he been injured instead by an incidental stray shot from a negligent sportsman.

In a recent Tennessee case, a patient sustained a cardiac arrest because of negligent monitoring during a CT scan. His antecedent negligence stemmed from the fact that he had alcohol in his blood upon arrival at the hospital following a car accident. The state Supreme Court found the hospital 100% liable and disallowed the jury's assessment of 30% comparative fault, holding that “principles of comparative fault did not apply such as to allow fault to be assessed to patient, and thus jury should not have been allowed to consider patient's antecedent negligence in assessing fault.”

Question: Ms. Holistica purchased Slim-Yu, an over-the-counter (OTC) herbal supplement advertised as a weight-loss agent. She asked her primary care doctor about its effectiveness and safety, and he said that it was “OK.” Two months later, Ms. Holistica developed jaundice, abnormal liver function tests, and liver failure. Which of the following is incorrect?:

Her doctor cannot be liable because he did not prescribe the supplement.

Her doctor may be liable because he had given his approval for its use.

Ms. Holistica should consider suing the drugstore for selling Slim-Yu.

Ms. Holistica should consider suing the manufacturer for a defective product.

No one is liable unless the plaintiff proves proximate causation.

Answer: A. All choices are true except A. To be sure, the doctor did not prescribe Slim-Yu, but he did give his “OK,” and the patient may have relied upon his approval. Just because it's an OTC preparation does not absolve the physician if he was providing medical advice in a professional capacity. Totally unregulated, a few of these OTC supplements can be expected to result in harmful effects. The injured party will naturally consider suing both the manufacturer and the drugstore for putting the item on the market. Ms. Holistica will still have to prove that the weight-loss agent proximately caused the injury, or else all defendants will escape liability.

Lack of informed consent is the usual basis for lawsuits against physicians who practice complementary and alternative medicine (CAM). In Charell v. Gonzalez, a cancer patient refused treatment by her oncologist and opted instead for “nutritional therapy” offered by another physician. Her cancer metastasized, leading to blindness and back problems. The patient alleged negligence and failure to warn of risks. The jury found the physician 51% liable for lack of informed consent and departure from standard of care, whereas the plaintiff was found to be 49% at fault for choosing to ignore the recommendations of her oncologists.

In Moore v. Baker, a patient attempted to sue her neurologist for failure to offer EDTA chelation therapy as an alternative to surgical treatment. The patient had undergone a carotid endarterectomy and during the recovery period, a blood clot developed, causing brain damage. She alleged that EDTA chelation therapy was as effective as surgery and was less risky. However, her suit failed, the court holding: “The evidence overwhelmingly suggests that the mainstream medical community does not recognize or accept EDTA therapy as an alternative to a carotid endarterectomy …”

CAM is not usually taught as tried and true therapy in medical schools, so the use of such “nontraditional” therapy may be equated with experimental, even substandard, care. One appellate judge has warned: “Currently, the law does not encourage medical doctors to stray from the pack (because) it is well-settled that in medical malpractice actions, the question of negligence must be decided by reference to relevant medical standards of care …”

There are several legal defenses for a physician's integrating, utilizing, or supporting CAM therapies. One possible defense is to assert the “respectable minority” standard of care. Or the treating physician can plead clinical innovation for a difficult or desperate situation. Yet another defense is to assert assumption of risk. In Schneider v. Revici, a physician recommended nutritional (selenium and dietary restrictions) and other nonsurgical treatments for breast cancer. The patient had signed a detailed consent form disclosing that the treatments lacked Food and Drug Administration approval and could not be guaranteed and agreed to release the physician from liability. The cancer spread and the patient sued for common law fraud, medical malpractice, and lack of informed consent, but the court of appeals held that assumption of risk is a complete defense. The same court held in another case that a patient's failure to sign a consent form did not preclude the jury from considering the assumption of risk defense, as consent may be written or verbal.

Even if it is the patient's choice, physicians must still exercise due care when implementing CAM. In Gonzalez v. New York State Department of Health, Dr. Gonzalez was charged with gross negligence and incompetence after he used unconventional therapies to treat six patients with incurable cancer who had failed or rejected conventional treatment. A hearing committee found that he missed signs of disease progression and failed to perform adequate assessments, testing, and follow-up. The court held that a patient's consent to or even insistence upon a certain treatment does not relieve the physician from the obligation of providing the usual standard of care.

The allopathic physician should stay up to date with therapeutic developments in CAM. For example, a 1997 National Institutes of Health consensus statement supported acupuncture as a legitimate therapy with proven efficacy for adult postoperative- and chemotherapy-induced nausea and vomiting. Many “nontraditional” treatments, such as those for back pain, are gaining acceptance. When discussing alternative therapy with a patient, the physician should first fully inform the patient about conventional treatments and their limitations. Next, the physician should explain why the novel, rather than the recognized conventional therapy is being considered. Finally, whether the physician intends to carry out CAM therapy or refer to another practitioner, the patient must be warned about the potential risks associated with such therapy.

In order to guard against malpractice liability, one might consider the approach recommended by Cohen and Eisenberg: Where safety and or efficacy are not established, physicians should be guarded in offering the treatment. They should discourage patients from pursuing dangerous treatments such as injections of unapproved substances and pay close attention to known herb-drug interactions, for example, St. John's wort interacting with oral contraceptives, chemotherapy agents, and immunosuppressants, and ginkgo biloba affecting anticlotting medications. Physicians must also routinely inquire about herbal and home remedies when obtaining a medication history. If a patient insists on CAM treatments despite warnings, document the discussion carefully, including disclosure of potential dangers and lack of efficacy.

Question: Ms. Holistica purchased Slim-Yu, an over-the-counter (OTC) herbal supplement advertised as a weight-loss agent. She asked her primary care doctor about its effectiveness and safety, and he said that it was “OK.” Two months later, Ms. Holistica developed jaundice, abnormal liver function tests, and liver failure. Which of the following is incorrect?:

Her doctor cannot be liable because he did not prescribe the supplement.

Her doctor may be liable because he had given his approval for its use.

Ms. Holistica should consider suing the drugstore for selling Slim-Yu.

Ms. Holistica should consider suing the manufacturer for a defective product.

No one is liable unless the plaintiff proves proximate causation.

Answer: A. All choices are true except A. To be sure, the doctor did not prescribe Slim-Yu, but he did give his “OK,” and the patient may have relied upon his approval. Just because it's an OTC preparation does not absolve the physician if he was providing medical advice in a professional capacity. Totally unregulated, a few of these OTC supplements can be expected to result in harmful effects. The injured party will naturally consider suing both the manufacturer and the drugstore for putting the item on the market. Ms. Holistica will still have to prove that the weight-loss agent proximately caused the injury, or else all defendants will escape liability.

Lack of informed consent is the usual basis for lawsuits against physicians who practice complementary and alternative medicine (CAM). In Charell v. Gonzalez, a cancer patient refused treatment by her oncologist and opted instead for “nutritional therapy” offered by another physician. Her cancer metastasized, leading to blindness and back problems. The patient alleged negligence and failure to warn of risks. The jury found the physician 51% liable for lack of informed consent and departure from standard of care, whereas the plaintiff was found to be 49% at fault for choosing to ignore the recommendations of her oncologists.

In Moore v. Baker, a patient attempted to sue her neurologist for failure to offer EDTA chelation therapy as an alternative to surgical treatment. The patient had undergone a carotid endarterectomy and during the recovery period, a blood clot developed, causing brain damage. She alleged that EDTA chelation therapy was as effective as surgery and was less risky. However, her suit failed, the court holding: “The evidence overwhelmingly suggests that the mainstream medical community does not recognize or accept EDTA therapy as an alternative to a carotid endarterectomy …”

CAM is not usually taught as tried and true therapy in medical schools, so the use of such “nontraditional” therapy may be equated with experimental, even substandard, care. One appellate judge has warned: “Currently, the law does not encourage medical doctors to stray from the pack (because) it is well-settled that in medical malpractice actions, the question of negligence must be decided by reference to relevant medical standards of care …”

There are several legal defenses for a physician's integrating, utilizing, or supporting CAM therapies. One possible defense is to assert the “respectable minority” standard of care. Or the treating physician can plead clinical innovation for a difficult or desperate situation. Yet another defense is to assert assumption of risk. In Schneider v. Revici, a physician recommended nutritional (selenium and dietary restrictions) and other nonsurgical treatments for breast cancer. The patient had signed a detailed consent form disclosing that the treatments lacked Food and Drug Administration approval and could not be guaranteed and agreed to release the physician from liability. The cancer spread and the patient sued for common law fraud, medical malpractice, and lack of informed consent, but the court of appeals held that assumption of risk is a complete defense. The same court held in another case that a patient's failure to sign a consent form did not preclude the jury from considering the assumption of risk defense, as consent may be written or verbal.

Even if it is the patient's choice, physicians must still exercise due care when implementing CAM. In Gonzalez v. New York State Department of Health, Dr. Gonzalez was charged with gross negligence and incompetence after he used unconventional therapies to treat six patients with incurable cancer who had failed or rejected conventional treatment. A hearing committee found that he missed signs of disease progression and failed to perform adequate assessments, testing, and follow-up. The court held that a patient's consent to or even insistence upon a certain treatment does not relieve the physician from the obligation of providing the usual standard of care.

The allopathic physician should stay up to date with therapeutic developments in CAM. For example, a 1997 National Institutes of Health consensus statement supported acupuncture as a legitimate therapy with proven efficacy for adult postoperative- and chemotherapy-induced nausea and vomiting. Many “nontraditional” treatments, such as those for back pain, are gaining acceptance. When discussing alternative therapy with a patient, the physician should first fully inform the patient about conventional treatments and their limitations. Next, the physician should explain why the novel, rather than the recognized conventional therapy is being considered. Finally, whether the physician intends to carry out CAM therapy or refer to another practitioner, the patient must be warned about the potential risks associated with such therapy.

In order to guard against malpractice liability, one might consider the approach recommended by Cohen and Eisenberg: Where safety and or efficacy are not established, physicians should be guarded in offering the treatment. They should discourage patients from pursuing dangerous treatments such as injections of unapproved substances and pay close attention to known herb-drug interactions, for example, St. John's wort interacting with oral contraceptives, chemotherapy agents, and immunosuppressants, and ginkgo biloba affecting anticlotting medications. Physicians must also routinely inquire about herbal and home remedies when obtaining a medication history. If a patient insists on CAM treatments despite warnings, document the discussion carefully, including disclosure of potential dangers and lack of efficacy.

Question: Ms. Holistica purchased Slim-Yu, an over-the-counter (OTC) herbal supplement advertised as a weight-loss agent. She asked her primary care doctor about its effectiveness and safety, and he said that it was “OK.” Two months later, Ms. Holistica developed jaundice, abnormal liver function tests, and liver failure. Which of the following is incorrect?:

Her doctor cannot be liable because he did not prescribe the supplement.

Her doctor may be liable because he had given his approval for its use.

Ms. Holistica should consider suing the drugstore for selling Slim-Yu.

Ms. Holistica should consider suing the manufacturer for a defective product.

No one is liable unless the plaintiff proves proximate causation.

Answer: A. All choices are true except A. To be sure, the doctor did not prescribe Slim-Yu, but he did give his “OK,” and the patient may have relied upon his approval. Just because it's an OTC preparation does not absolve the physician if he was providing medical advice in a professional capacity. Totally unregulated, a few of these OTC supplements can be expected to result in harmful effects. The injured party will naturally consider suing both the manufacturer and the drugstore for putting the item on the market. Ms. Holistica will still have to prove that the weight-loss agent proximately caused the injury, or else all defendants will escape liability.

Lack of informed consent is the usual basis for lawsuits against physicians who practice complementary and alternative medicine (CAM). In Charell v. Gonzalez, a cancer patient refused treatment by her oncologist and opted instead for “nutritional therapy” offered by another physician. Her cancer metastasized, leading to blindness and back problems. The patient alleged negligence and failure to warn of risks. The jury found the physician 51% liable for lack of informed consent and departure from standard of care, whereas the plaintiff was found to be 49% at fault for choosing to ignore the recommendations of her oncologists.

In Moore v. Baker, a patient attempted to sue her neurologist for failure to offer EDTA chelation therapy as an alternative to surgical treatment. The patient had undergone a carotid endarterectomy and during the recovery period, a blood clot developed, causing brain damage. She alleged that EDTA chelation therapy was as effective as surgery and was less risky. However, her suit failed, the court holding: “The evidence overwhelmingly suggests that the mainstream medical community does not recognize or accept EDTA therapy as an alternative to a carotid endarterectomy …”

CAM is not usually taught as tried and true therapy in medical schools, so the use of such “nontraditional” therapy may be equated with experimental, even substandard, care. One appellate judge has warned: “Currently, the law does not encourage medical doctors to stray from the pack (because) it is well-settled that in medical malpractice actions, the question of negligence must be decided by reference to relevant medical standards of care …”

There are several legal defenses for a physician's integrating, utilizing, or supporting CAM therapies. One possible defense is to assert the “respectable minority” standard of care. Or the treating physician can plead clinical innovation for a difficult or desperate situation. Yet another defense is to assert assumption of risk. In Schneider v. Revici, a physician recommended nutritional (selenium and dietary restrictions) and other nonsurgical treatments for breast cancer. The patient had signed a detailed consent form disclosing that the treatments lacked Food and Drug Administration approval and could not be guaranteed and agreed to release the physician from liability. The cancer spread and the patient sued for common law fraud, medical malpractice, and lack of informed consent, but the court of appeals held that assumption of risk is a complete defense. The same court held in another case that a patient's failure to sign a consent form did not preclude the jury from considering the assumption of risk defense, as consent may be written or verbal.

Even if it is the patient's choice, physicians must still exercise due care when implementing CAM. In Gonzalez v. New York State Department of Health, Dr. Gonzalez was charged with gross negligence and incompetence after he used unconventional therapies to treat six patients with incurable cancer who had failed or rejected conventional treatment. A hearing committee found that he missed signs of disease progression and failed to perform adequate assessments, testing, and follow-up. The court held that a patient's consent to or even insistence upon a certain treatment does not relieve the physician from the obligation of providing the usual standard of care.

The allopathic physician should stay up to date with therapeutic developments in CAM. For example, a 1997 National Institutes of Health consensus statement supported acupuncture as a legitimate therapy with proven efficacy for adult postoperative- and chemotherapy-induced nausea and vomiting. Many “nontraditional” treatments, such as those for back pain, are gaining acceptance. When discussing alternative therapy with a patient, the physician should first fully inform the patient about conventional treatments and their limitations. Next, the physician should explain why the novel, rather than the recognized conventional therapy is being considered. Finally, whether the physician intends to carry out CAM therapy or refer to another practitioner, the patient must be warned about the potential risks associated with such therapy.

In order to guard against malpractice liability, one might consider the approach recommended by Cohen and Eisenberg: Where safety and or efficacy are not established, physicians should be guarded in offering the treatment. They should discourage patients from pursuing dangerous treatments such as injections of unapproved substances and pay close attention to known herb-drug interactions, for example, St. John's wort interacting with oral contraceptives, chemotherapy agents, and immunosuppressants, and ginkgo biloba affecting anticlotting medications. Physicians must also routinely inquire about herbal and home remedies when obtaining a medication history. If a patient insists on CAM treatments despite warnings, document the discussion carefully, including disclosure of potential dangers and lack of efficacy.

Question: A witness may be qualified as an expert based on:

A. Knowledge or education, but not experience alone.

B. Skill, but not training alone.

C. Knowledge, skill, experience, training, or education.

D. Whether a witness qualifies as an expert is determined by the judge and jury.

E. A nurse may equally offer expert testimony in a medical malpractice case.

Answer: C. In a malpractice trial, the plaintiff has to show via expert medical testimony that the defendant doctor has breached the standard of care. Court rules of evidence dictate that the expert must possess “the knowledge, skill, experience, training, or education” necessary for establishing that standard. These qualification criteria are not overly restrictive, and evidence is admissible so long as it is relevant and reliable. However, lay testimony usually is insufficient to define the standard of care, unless it falls under the “common knowledge” exception (res ipsa loquitur). The judge, not the jury, makes these determinations.

The expert's proffered standard must take into account the circumstances of the case and the qualifications of the defendant-doctor. For example, in litigated cases involving diabetic complications, the courts have disallowed using an internist's standard for a general practitioner, or an endocrinologist's standard for an internist.

A qualified doctor rather than a nurse or an allied health professional usually will serve as the expert, although doctors have been allowed to testify outside their specialty, for example, an internist with subspecialty training in infectious diseases was qualified as a plaintiff expert in a stroke case. However, Arizona has a recent statute, ARS §12-2604 (A), which requires a medical expert to be a specialist who is actively practicing or teaching in that area of medicine. The state Court of Appeals held that this violated the separation of powers doctrine (conflicting with Arizona Rule of Evidence 702), but the Supreme Court of Arizona subsequently reversed and reinstated the law, which makes it more difficult to qualify as a medical expert in an Arizona courtroom.

Most malpractice lawyers have a listing of available experts, derived from past experiences, contacts, or word-of-mouth recommendations. Some plaintiff organizations have access to willing medical experts, and ads in the media and legal journals identify doctors wishing to act as experts. Attorneys generally seek experts who communicate well. How the jury perceives the expert is crucial. Qualifications might be what are initially assessed, but communication skills, credibility, and demeanor can matter more.

Can a physician be forced to testify as an expert?

The Wisconsin Supreme Court has held that whereas a treating physician might be required to provide expert testimony regarding the care of his/her own patient, he/she cannot be forced to give expert testimony regarding the standard of care of another physician's patient unless the judge has determined that there are compelling circumstances. Additionally, there must be reasonable compensation and no requirement to do additional preparation in order to provide expert testimony.

The reimbursement rate for an expert varies widely, usually in the range of $200-$500/hour for review work. These figures are of course higher for depositions and live testimony in open court. A Colorado court has held that a deposition fee of $2,000/hour was grossly excessive, and a New Jersey federal magistrate judge characterized a neurosurgeon's charge of $7,000 for two hours of deposition as “near to being extortionate.” In Europe, expert witnesses are appointed by the courts, and are compensated according to a standard fee schedule.

In 1995, the American College of Cardiology put forth seven criteria for expert witnesses. Of particular import is criterion seven, which states: “Expert witness testimony should be fair, thorough, and objective. It should not exclude any relevant information that has a bearing on the case.” Various other medical associations and malpractice insurers have published similar guidelines for those asked to testify as experts.

The American Medical Association considers providing expert medical testimony to be analogous to the practice of medicine. It has this to say about the ethical responsibilities of medical experts: “… they should have recent and substantive experience or knowledge in the area in which they testify, and be committed to evaluating cases objectively and to providing an independent opinion. … Physician testimony must not be influenced by financial compensation; for example, it is unethical for a physician to accept compensation that is contingent upon the outcome of litigation.”

Finally, in Austin vs. American Association of Neurological Surgeons, the seventh U.S. Circuit Court of Appeals reaffirmed an association's right to discipline a physician for improper medical testimony. The case involved a Detroit neurosurgeon who testified for the plaintiff against a fellow association member who allegedly caused permanent recurrent laryngeal nerve damage following an anterior cervical fusion. The court wrote, “There is a great deal of skepticism about expert evidence. It is well known that expert witnesses are often paid very handsome fees, and common sense suggests that a financial stake can influence an expert's testimony, especially when the testimony is technical and esoteric and hence difficult to refute in terms intelligible to judges and jurors. More policing of expert witnessing is required, not less.”

Question: A witness may be qualified as an expert based on:

A. Knowledge or education, but not experience alone.

B. Skill, but not training alone.

C. Knowledge, skill, experience, training, or education.

D. Whether a witness qualifies as an expert is determined by the judge and jury.

E. A nurse may equally offer expert testimony in a medical malpractice case.

Answer: C. In a malpractice trial, the plaintiff has to show via expert medical testimony that the defendant doctor has breached the standard of care. Court rules of evidence dictate that the expert must possess “the knowledge, skill, experience, training, or education” necessary for establishing that standard. These qualification criteria are not overly restrictive, and evidence is admissible so long as it is relevant and reliable. However, lay testimony usually is insufficient to define the standard of care, unless it falls under the “common knowledge” exception (res ipsa loquitur). The judge, not the jury, makes these determinations.

The expert's proffered standard must take into account the circumstances of the case and the qualifications of the defendant-doctor. For example, in litigated cases involving diabetic complications, the courts have disallowed using an internist's standard for a general practitioner, or an endocrinologist's standard for an internist.

A qualified doctor rather than a nurse or an allied health professional usually will serve as the expert, although doctors have been allowed to testify outside their specialty, for example, an internist with subspecialty training in infectious diseases was qualified as a plaintiff expert in a stroke case. However, Arizona has a recent statute, ARS §12-2604 (A), which requires a medical expert to be a specialist who is actively practicing or teaching in that area of medicine. The state Court of Appeals held that this violated the separation of powers doctrine (conflicting with Arizona Rule of Evidence 702), but the Supreme Court of Arizona subsequently reversed and reinstated the law, which makes it more difficult to qualify as a medical expert in an Arizona courtroom.

Most malpractice lawyers have a listing of available experts, derived from past experiences, contacts, or word-of-mouth recommendations. Some plaintiff organizations have access to willing medical experts, and ads in the media and legal journals identify doctors wishing to act as experts. Attorneys generally seek experts who communicate well. How the jury perceives the expert is crucial. Qualifications might be what are initially assessed, but communication skills, credibility, and demeanor can matter more.

Can a physician be forced to testify as an expert?

The Wisconsin Supreme Court has held that whereas a treating physician might be required to provide expert testimony regarding the care of his/her own patient, he/she cannot be forced to give expert testimony regarding the standard of care of another physician's patient unless the judge has determined that there are compelling circumstances. Additionally, there must be reasonable compensation and no requirement to do additional preparation in order to provide expert testimony.

The reimbursement rate for an expert varies widely, usually in the range of $200-$500/hour for review work. These figures are of course higher for depositions and live testimony in open court. A Colorado court has held that a deposition fee of $2,000/hour was grossly excessive, and a New Jersey federal magistrate judge characterized a neurosurgeon's charge of $7,000 for two hours of deposition as “near to being extortionate.” In Europe, expert witnesses are appointed by the courts, and are compensated according to a standard fee schedule.

In 1995, the American College of Cardiology put forth seven criteria for expert witnesses. Of particular import is criterion seven, which states: “Expert witness testimony should be fair, thorough, and objective. It should not exclude any relevant information that has a bearing on the case.” Various other medical associations and malpractice insurers have published similar guidelines for those asked to testify as experts.

The American Medical Association considers providing expert medical testimony to be analogous to the practice of medicine. It has this to say about the ethical responsibilities of medical experts: “… they should have recent and substantive experience or knowledge in the area in which they testify, and be committed to evaluating cases objectively and to providing an independent opinion. … Physician testimony must not be influenced by financial compensation; for example, it is unethical for a physician to accept compensation that is contingent upon the outcome of litigation.”

Finally, in Austin vs. American Association of Neurological Surgeons, the seventh U.S. Circuit Court of Appeals reaffirmed an association's right to discipline a physician for improper medical testimony. The case involved a Detroit neurosurgeon who testified for the plaintiff against a fellow association member who allegedly caused permanent recurrent laryngeal nerve damage following an anterior cervical fusion. The court wrote, “There is a great deal of skepticism about expert evidence. It is well known that expert witnesses are often paid very handsome fees, and common sense suggests that a financial stake can influence an expert's testimony, especially when the testimony is technical and esoteric and hence difficult to refute in terms intelligible to judges and jurors. More policing of expert witnessing is required, not less.”

Question: A witness may be qualified as an expert based on:

A. Knowledge or education, but not experience alone.

B. Skill, but not training alone.

C. Knowledge, skill, experience, training, or education.

D. Whether a witness qualifies as an expert is determined by the judge and jury.

E. A nurse may equally offer expert testimony in a medical malpractice case.

Answer: C. In a malpractice trial, the plaintiff has to show via expert medical testimony that the defendant doctor has breached the standard of care. Court rules of evidence dictate that the expert must possess “the knowledge, skill, experience, training, or education” necessary for establishing that standard. These qualification criteria are not overly restrictive, and evidence is admissible so long as it is relevant and reliable. However, lay testimony usually is insufficient to define the standard of care, unless it falls under the “common knowledge” exception (res ipsa loquitur). The judge, not the jury, makes these determinations.

The expert's proffered standard must take into account the circumstances of the case and the qualifications of the defendant-doctor. For example, in litigated cases involving diabetic complications, the courts have disallowed using an internist's standard for a general practitioner, or an endocrinologist's standard for an internist.

A qualified doctor rather than a nurse or an allied health professional usually will serve as the expert, although doctors have been allowed to testify outside their specialty, for example, an internist with subspecialty training in infectious diseases was qualified as a plaintiff expert in a stroke case. However, Arizona has a recent statute, ARS §12-2604 (A), which requires a medical expert to be a specialist who is actively practicing or teaching in that area of medicine. The state Court of Appeals held that this violated the separation of powers doctrine (conflicting with Arizona Rule of Evidence 702), but the Supreme Court of Arizona subsequently reversed and reinstated the law, which makes it more difficult to qualify as a medical expert in an Arizona courtroom.

Most malpractice lawyers have a listing of available experts, derived from past experiences, contacts, or word-of-mouth recommendations. Some plaintiff organizations have access to willing medical experts, and ads in the media and legal journals identify doctors wishing to act as experts. Attorneys generally seek experts who communicate well. How the jury perceives the expert is crucial. Qualifications might be what are initially assessed, but communication skills, credibility, and demeanor can matter more.

Can a physician be forced to testify as an expert?

The Wisconsin Supreme Court has held that whereas a treating physician might be required to provide expert testimony regarding the care of his/her own patient, he/she cannot be forced to give expert testimony regarding the standard of care of another physician's patient unless the judge has determined that there are compelling circumstances. Additionally, there must be reasonable compensation and no requirement to do additional preparation in order to provide expert testimony.

The reimbursement rate for an expert varies widely, usually in the range of $200-$500/hour for review work. These figures are of course higher for depositions and live testimony in open court. A Colorado court has held that a deposition fee of $2,000/hour was grossly excessive, and a New Jersey federal magistrate judge characterized a neurosurgeon's charge of $7,000 for two hours of deposition as “near to being extortionate.” In Europe, expert witnesses are appointed by the courts, and are compensated according to a standard fee schedule.

In 1995, the American College of Cardiology put forth seven criteria for expert witnesses. Of particular import is criterion seven, which states: “Expert witness testimony should be fair, thorough, and objective. It should not exclude any relevant information that has a bearing on the case.” Various other medical associations and malpractice insurers have published similar guidelines for those asked to testify as experts.

The American Medical Association considers providing expert medical testimony to be analogous to the practice of medicine. It has this to say about the ethical responsibilities of medical experts: “… they should have recent and substantive experience or knowledge in the area in which they testify, and be committed to evaluating cases objectively and to providing an independent opinion. … Physician testimony must not be influenced by financial compensation; for example, it is unethical for a physician to accept compensation that is contingent upon the outcome of litigation.”

Finally, in Austin vs. American Association of Neurological Surgeons, the seventh U.S. Circuit Court of Appeals reaffirmed an association's right to discipline a physician for improper medical testimony. The case involved a Detroit neurosurgeon who testified for the plaintiff against a fellow association member who allegedly caused permanent recurrent laryngeal nerve damage following an anterior cervical fusion. The court wrote, “There is a great deal of skepticism about expert evidence. It is well known that expert witnesses are often paid very handsome fees, and common sense suggests that a financial stake can influence an expert's testimony, especially when the testimony is technical and esoteric and hence difficult to refute in terms intelligible to judges and jurors. More policing of expert witnessing is required, not less.”

Question: A witness may be qualified as an expert based on:

A. Knowledge or education, but not experience alone.

B. Skill, but not training alone.

C. Knowledge, skill, experience, training, or education.

D. Whether a witness qualifies as an expert is determined by the judge and jury.

E. A nurse may equally offer expert testimony in a medical malpractice case.

Answer: C. In a malpractice trial, the plaintiff has to show via expert medical testimony that the defendant doctor has breached the standard of care. Court rules of evidence dictate that the expert must possess “the knowledge, skill, experience, training, or education” necessary for establishing that standard. These qualification criteria are not overly restrictive, and evidence is admissible so long as it is relevant and reliable. However, lay testimony usually is insufficient to define the standard of care, unless it falls under the “common knowledge” exception (res ipsa loquitur). The judge, not the jury, makes these determinations.

The expert’s proffered standard must take into account the circumstances of the case and the qualifications of the defendant-doctor. For example, in litigated cases involving diabetic complications, the courts have disallowed using an internist’s standard for a general practitioner, or an endocrinologist’s standard for an internist.

A qualified doctor rather than a nurse or an allied health professional usually will serve as the expert, although doctors have been allowed to testify outside their specialty, for example, an internist with subspecialty training in infectious diseases was qualified as a plaintiff expert in a stroke case. However, Arizona has a recent statute, ARS ?12-2604 (A), which requires a medical expert to be a specialist who is actively practicing or teaching in that area of medicine. The state Court of Appeals held that this violated the separation of powers doctrine (conflicting with Arizona Rule of Evidence 702), but the Supreme Court of Arizona subsequently reversed and reinstated the law, which makes it more difficult to qualify as a medical expert in an Arizona courtroom.

Most malpractice lawyers have a listing of available experts, derived from past experiences, contacts, or word-of-mouth recommendations. Some plaintiff organizations have access to willing medical experts, and ads in the media and legal journals identify doctors wishing to act as experts. Attorneys generally seek experts who communicate well. How the jury perceives the expert is crucial. Qualifications might be what are initially assessed, but communication skills, credibility, and demeanor can matter more.

Can a physician be forced to testify as an expert?

The Wisconsin Supreme Court has held that whereas a treating physician might be required to provide expert testimony regarding the care of his/her own patient, he/she cannot be forced to give expert testimony regarding the standard of care of another physician’s patient unless the judge has determined that there are compelling circumstances. Additionally, there must be reasonable compensation and no requirement to do additional preparation in order to provide expert testimony.

The reimbursement rate for an expert varies widely, usually in the range of $200-$500/hour for review work. These figures are of course higher for depositions and live testimony in open court. A Colorado court has held that a deposition fee of $2,000/hour was grossly excessive, and a New Jersey federal magistrate judge characterized a neurosurgeon’s charge of $7,000 for 2 hours of deposition as “near to being extortionate.” In Europe, expert witnesses are appointed by the courts, and are compensated according to a standard fee schedule.

In 1995, the American College of Cardiology put forth seven criteria for expert witnesses. Of particular import is criterion seven, which states: “Expert witness testimony should be fair, thorough, and objective. It should not exclude any relevant information that has a bearing on the case.” Various other medical associations and malpractice insurers have published similar guidelines for those asked to testify as experts.

The American Medical Association considers providing expert medical testimony to be analogous to the practice of medicine. It has this to say about the ethical responsibilities of medical experts: “ ... they should have recent and substantive experience or knowledge in the area in which they testify, and be committed to evaluating cases objectively and to providing an independent opinion. ... Physician testimony must not be influenced by financial compensation; for example, it is unethical for a physician to accept compensation that is contingent upon the outcome of litigation.”

Finally, in Austin vs. American Association of Neurological Surgeons, the seventh U.S. Circuit Court of Appeals reaffirmed an association’s right to discipline a physician for improper medical testimony. The case involved a Detroit neurosurgeon who testified for the plaintiff against a fellow association member who allegedly caused permanent recurrent laryngeal nerve damage following an anterior cervical fusion. The court wrote, “There is a great deal of skepticism about expert evidence. It is well known that expert witnesses are often paid very handsome fees, and common sense suggests that a financial stake can influence an expert’s testimony, especially when the testimony is technical and esoteric and hence difficult to refute in terms intelligible to judges and jurors. More policing of expert witnessing is required, not less.”

Dr. Tan is professor of medicine and former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, “Medical Malpractice: Understanding the Law, Managing the Risk” (2006).

Question: A witness may be qualified as an expert based on:

A. Knowledge or education, but not experience alone.

B. Skill, but not training alone.

C. Knowledge, skill, experience, training, or education.

D. Whether a witness qualifies as an expert is determined by the judge and jury.

E. A nurse may equally offer expert testimony in a medical malpractice case.

Answer: C. In a malpractice trial, the plaintiff has to show via expert medical testimony that the defendant doctor has breached the standard of care. Court rules of evidence dictate that the expert must possess “the knowledge, skill, experience, training, or education” necessary for establishing that standard. These qualification criteria are not overly restrictive, and evidence is admissible so long as it is relevant and reliable. However, lay testimony usually is insufficient to define the standard of care, unless it falls under the “common knowledge” exception (res ipsa loquitur). The judge, not the jury, makes these determinations.

The expert’s proffered standard must take into account the circumstances of the case and the qualifications of the defendant-doctor. For example, in litigated cases involving diabetic complications, the courts have disallowed using an internist’s standard for a general practitioner, or an endocrinologist’s standard for an internist.

A qualified doctor rather than a nurse or an allied health professional usually will serve as the expert, although doctors have been allowed to testify outside their specialty, for example, an internist with subspecialty training in infectious diseases was qualified as a plaintiff expert in a stroke case. However, Arizona has a recent statute, ARS ?12-2604 (A), which requires a medical expert to be a specialist who is actively practicing or teaching in that area of medicine. The state Court of Appeals held that this violated the separation of powers doctrine (conflicting with Arizona Rule of Evidence 702), but the Supreme Court of Arizona subsequently reversed and reinstated the law, which makes it more difficult to qualify as a medical expert in an Arizona courtroom.

Most malpractice lawyers have a listing of available experts, derived from past experiences, contacts, or word-of-mouth recommendations. Some plaintiff organizations have access to willing medical experts, and ads in the media and legal journals identify doctors wishing to act as experts. Attorneys generally seek experts who communicate well. How the jury perceives the expert is crucial. Qualifications might be what are initially assessed, but communication skills, credibility, and demeanor can matter more.

Can a physician be forced to testify as an expert?

The Wisconsin Supreme Court has held that whereas a treating physician might be required to provide expert testimony regarding the care of his/her own patient, he/she cannot be forced to give expert testimony regarding the standard of care of another physician’s patient unless the judge has determined that there are compelling circumstances. Additionally, there must be reasonable compensation and no requirement to do additional preparation in order to provide expert testimony.

The reimbursement rate for an expert varies widely, usually in the range of $200-$500/hour for review work. These figures are of course higher for depositions and live testimony in open court. A Colorado court has held that a deposition fee of $2,000/hour was grossly excessive, and a New Jersey federal magistrate judge characterized a neurosurgeon’s charge of $7,000 for 2 hours of deposition as “near to being extortionate.” In Europe, expert witnesses are appointed by the courts, and are compensated according to a standard fee schedule.

In 1995, the American College of Cardiology put forth seven criteria for expert witnesses. Of particular import is criterion seven, which states: “Expert witness testimony should be fair, thorough, and objective. It should not exclude any relevant information that has a bearing on the case.” Various other medical associations and malpractice insurers have published similar guidelines for those asked to testify as experts.

The American Medical Association considers providing expert medical testimony to be analogous to the practice of medicine. It has this to say about the ethical responsibilities of medical experts: “ ... they should have recent and substantive experience or knowledge in the area in which they testify, and be committed to evaluating cases objectively and to providing an independent opinion. ... Physician testimony must not be influenced by financial compensation; for example, it is unethical for a physician to accept compensation that is contingent upon the outcome of litigation.”

Finally, in Austin vs. American Association of Neurological Surgeons, the seventh U.S. Circuit Court of Appeals reaffirmed an association’s right to discipline a physician for improper medical testimony. The case involved a Detroit neurosurgeon who testified for the plaintiff against a fellow association member who allegedly caused permanent recurrent laryngeal nerve damage following an anterior cervical fusion. The court wrote, “There is a great deal of skepticism about expert evidence. It is well known that expert witnesses are often paid very handsome fees, and common sense suggests that a financial stake can influence an expert’s testimony, especially when the testimony is technical and esoteric and hence difficult to refute in terms intelligible to judges and jurors. More policing of expert witnessing is required, not less.”

Dr. Tan is professor of medicine and former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, “Medical Malpractice: Understanding the Law, Managing the Risk” (2006).

Question: A witness may be qualified as an expert based on:

A. Knowledge or education, but not experience alone.

B. Skill, but not training alone.

C. Knowledge, skill, experience, training, or education.

D. Whether a witness qualifies as an expert is determined by the judge and jury.

E. A nurse may equally offer expert testimony in a medical malpractice case.

Answer: C. In a malpractice trial, the plaintiff has to show via expert medical testimony that the defendant doctor has breached the standard of care. Court rules of evidence dictate that the expert must possess “the knowledge, skill, experience, training, or education” necessary for establishing that standard. These qualification criteria are not overly restrictive, and evidence is admissible so long as it is relevant and reliable. However, lay testimony usually is insufficient to define the standard of care, unless it falls under the “common knowledge” exception (res ipsa loquitur). The judge, not the jury, makes these determinations.

The expert’s proffered standard must take into account the circumstances of the case and the qualifications of the defendant-doctor. For example, in litigated cases involving diabetic complications, the courts have disallowed using an internist’s standard for a general practitioner, or an endocrinologist’s standard for an internist.

A qualified doctor rather than a nurse or an allied health professional usually will serve as the expert, although doctors have been allowed to testify outside their specialty, for example, an internist with subspecialty training in infectious diseases was qualified as a plaintiff expert in a stroke case. However, Arizona has a recent statute, ARS ?12-2604 (A), which requires a medical expert to be a specialist who is actively practicing or teaching in that area of medicine. The state Court of Appeals held that this violated the separation of powers doctrine (conflicting with Arizona Rule of Evidence 702), but the Supreme Court of Arizona subsequently reversed and reinstated the law, which makes it more difficult to qualify as a medical expert in an Arizona courtroom.

Most malpractice lawyers have a listing of available experts, derived from past experiences, contacts, or word-of-mouth recommendations. Some plaintiff organizations have access to willing medical experts, and ads in the media and legal journals identify doctors wishing to act as experts. Attorneys generally seek experts who communicate well. How the jury perceives the expert is crucial. Qualifications might be what are initially assessed, but communication skills, credibility, and demeanor can matter more.

Can a physician be forced to testify as an expert?

The Wisconsin Supreme Court has held that whereas a treating physician might be required to provide expert testimony regarding the care of his/her own patient, he/she cannot be forced to give expert testimony regarding the standard of care of another physician’s patient unless the judge has determined that there are compelling circumstances. Additionally, there must be reasonable compensation and no requirement to do additional preparation in order to provide expert testimony.

The reimbursement rate for an expert varies widely, usually in the range of $200-$500/hour for review work. These figures are of course higher for depositions and live testimony in open court. A Colorado court has held that a deposition fee of $2,000/hour was grossly excessive, and a New Jersey federal magistrate judge characterized a neurosurgeon’s charge of $7,000 for 2 hours of deposition as “near to being extortionate.” In Europe, expert witnesses are appointed by the courts, and are compensated according to a standard fee schedule.

In 1995, the American College of Cardiology put forth seven criteria for expert witnesses. Of particular import is criterion seven, which states: “Expert witness testimony should be fair, thorough, and objective. It should not exclude any relevant information that has a bearing on the case.” Various other medical associations and malpractice insurers have published similar guidelines for those asked to testify as experts.

The American Medical Association considers providing expert medical testimony to be analogous to the practice of medicine. It has this to say about the ethical responsibilities of medical experts: “ ... they should have recent and substantive experience or knowledge in the area in which they testify, and be committed to evaluating cases objectively and to providing an independent opinion. ... Physician testimony must not be influenced by financial compensation; for example, it is unethical for a physician to accept compensation that is contingent upon the outcome of litigation.”

Finally, in Austin vs. American Association of Neurological Surgeons, the seventh U.S. Circuit Court of Appeals reaffirmed an association’s right to discipline a physician for improper medical testimony. The case involved a Detroit neurosurgeon who testified for the plaintiff against a fellow association member who allegedly caused permanent recurrent laryngeal nerve damage following an anterior cervical fusion. The court wrote, “There is a great deal of skepticism about expert evidence. It is well known that expert witnesses are often paid very handsome fees, and common sense suggests that a financial stake can influence an expert’s testimony, especially when the testimony is technical and esoteric and hence difficult to refute in terms intelligible to judges and jurors. More policing of expert witnessing is required, not less.”

Dr. Tan is professor of medicine and former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, “Medical Malpractice: Understanding the Law, Managing the Risk” (2006).

Question: After being on call for 30 hours, the first-year medical resident caused a pneumothorax during a thoracentesis, which was unsupervised because of short staffing. The Accreditation Council for Graduate Medical Education has a rule that limits in-hospital on-call duty to 24 consecutive hours. The residency program itself requires all first-year residents to be physically supervised for procedures such as a thoracentesis. On his way home, the resident momentarily fell asleep at the wheel, struck a car, and injured its driver. Which of the following choices best describes the liability issues involved?

A. Residency program is liable for pneumothorax because it violated its own rules regarding supervision of procedures.

B. Residency program is liable for auto accident because unreasonable work hours were a substantial contributory cause.

C. Resident and program are jointly liable for both injuries.

D. ACGME regulations as well as residency program's own rules are likely to be used as evidentiary standards during litigation.

E. A good plaintiff lawyer will invoke all of the above.

Answer: E. Graduate medical education programs, also called residency programs, are mandated to provide the requisite services and supervision for the education of their trainees. ACGME is the overriding authority responsible for the accreditation of post-MD medical training programs within the United States. GME programs that violate their own rules naturally place themselves at risk for liability. Examples are written rules stating that catheters are to be inserted under the supervision of an attending physician, or that all elective procedures are to be performed with an attending present.

In 1984, 18-year-old Libby Zion presented to a New York hospital with fever and agitation, and died less than 24 hours after admission with an undiagnosed illness. The intern and resident caring for Ms. Zion were questioned about the delay in the patient's being seen, use of restraints, lack of supervision, the contraindicated administration of meperidine in a patient who was taking phenelzine, and failure to make a diagnosis. Although a Manhattan grand jury unanimously dismissed criminal charges, the New York State Board of Regents voted to censure and reprimand the residents for grossly negligent care.

This case alerted the nation to the issue of resident work conditions and led to the creation of the Bell Commission, which found that “inadequate attending supervision, combined with impaired house-staff judgment due to fatigue, were contributory causes of the patient's death.” In 1988, the New York State Health Code implemented recommendations from the commission, limiting weekly work time to 80 hours, and consecutive hospital duty time to 24 hours. These reforms were soon adopted nationwide, with the intent of minimizing fatigue-related errors.

Supervising physicians are commonly named as codefendants for resident error, but program directors and teaching faculty who are uninvolved in direct patient care might also face legal liability, although the chances of plaintiff success are lower. In the example of Swidryk v. St. Michaels Medical Center, Dr. Swidryk was in his third week of obstetrical training when he delivered an infant who developed birth difficulties and brain damage. When he was sued for malpractice, Dr. Swidryk in turn sued the director of medical education, alleging that the director's failure to educate and supervise adequately was the proximate cause of his negligent care. The New Jersey Appellate Court dismissed those claims, reasoning that to decide otherwise would be to interfere with the academic decisions of the university, to encourage a pattern of educational malpractice against schools and residency programs each time a resident is sued, and to unnecessarily increase malpractice litigation if such a tort were recognized.

In another case, a California Appeals court dismissed an action against a professor who was alleged to have offered an opinion regarding treatment. The court ruled that no physician-patient relationship was formed since there was no control over the actions of the actual treating doctor and that to hold otherwise would undermine principles of academic freedom and teaching.

However, in Maxwell v. Cole, the chairman of obstetrics and gynecology was successfully sued for failure to develop and enforce rules regarding qualifications and supervision of trainees. The chairman was not personally involved in the care of a woman who sustained a bladder perforation caused by resident physicians. The court disagreed with the defendant that he owed no duty because no doctor-patient relationship was formed, stating: “If the chief of service fails to provide medically acceptable rules and regulations which would [ensure] appropriate supervision of ill patients, then it is reasonable to find that a breach of the standards of medical care by that individual has occurred.”

Training programs face liabilities other than those arising from medical malpractice, such as disciplinary actions, employer-employee disputes, sexual harassment, etc. The incidence of auto accidents in overfatigued medical trainees falling asleep at the wheel is very high, in some surveys close to 50%, and accidents are more likely to occur in the immediate postcall period. Court decisions in analogous factual circumstances, though not involving medical trainees, have favored the accident victim. In one case, the court noted that “… the appellee (Norfolk & Western Railway Company, the employer) could have reasonably foreseen that its exhausted employee, who had been required to work 27 hours without rest, would pose a risk of harm to other motorists …” In another case, the court held that “the defendant corporation (McDonald's Restaurants of Oregon Inc.) knew or should have known that its employee was a hazard to himself and others when he drove home from the workplace after working numerous hours.”

Question: After being on call for 30 hours, the first-year medical resident caused a pneumothorax during a thoracentesis, which was unsupervised because of short staffing. The Accreditation Council for Graduate Medical Education has a rule that limits in-hospital on-call duty to 24 consecutive hours. The residency program itself requires all first-year residents to be physically supervised for procedures such as a thoracentesis. On his way home, the resident momentarily fell asleep at the wheel, struck a car, and injured its driver. Which of the following choices best describes the liability issues involved?

A. Residency program is liable for pneumothorax because it violated its own rules regarding supervision of procedures.

B. Residency program is liable for auto accident because unreasonable work hours were a substantial contributory cause.

C. Resident and program are jointly liable for both injuries.

D. ACGME regulations as well as residency program's own rules are likely to be used as evidentiary standards during litigation.

E. A good plaintiff lawyer will invoke all of the above.

Answer: E. Graduate medical education programs, also called residency programs, are mandated to provide the requisite services and supervision for the education of their trainees. ACGME is the overriding authority responsible for the accreditation of post-MD medical training programs within the United States. GME programs that violate their own rules naturally place themselves at risk for liability. Examples are written rules stating that catheters are to be inserted under the supervision of an attending physician, or that all elective procedures are to be performed with an attending present.

In 1984, 18-year-old Libby Zion presented to a New York hospital with fever and agitation, and died less than 24 hours after admission with an undiagnosed illness. The intern and resident caring for Ms. Zion were questioned about the delay in the patient's being seen, use of restraints, lack of supervision, the contraindicated administration of meperidine in a patient who was taking phenelzine, and failure to make a diagnosis. Although a Manhattan grand jury unanimously dismissed criminal charges, the New York State Board of Regents voted to censure and reprimand the residents for grossly negligent care.

This case alerted the nation to the issue of resident work conditions and led to the creation of the Bell Commission, which found that “inadequate attending supervision, combined with impaired house-staff judgment due to fatigue, were contributory causes of the patient's death.” In 1988, the New York State Health Code implemented recommendations from the commission, limiting weekly work time to 80 hours, and consecutive hospital duty time to 24 hours. These reforms were soon adopted nationwide, with the intent of minimizing fatigue-related errors.

Supervising physicians are commonly named as codefendants for resident error, but program directors and teaching faculty who are uninvolved in direct patient care might also face legal liability, although the chances of plaintiff success are lower. In the example of Swidryk v. St. Michaels Medical Center, Dr. Swidryk was in his third week of obstetrical training when he delivered an infant who developed birth difficulties and brain damage. When he was sued for malpractice, Dr. Swidryk in turn sued the director of medical education, alleging that the director's failure to educate and supervise adequately was the proximate cause of his negligent care. The New Jersey Appellate Court dismissed those claims, reasoning that to decide otherwise would be to interfere with the academic decisions of the university, to encourage a pattern of educational malpractice against schools and residency programs each time a resident is sued, and to unnecessarily increase malpractice litigation if such a tort were recognized.

In another case, a California Appeals court dismissed an action against a professor who was alleged to have offered an opinion regarding treatment. The court ruled that no physician-patient relationship was formed since there was no control over the actions of the actual treating doctor and that to hold otherwise would undermine principles of academic freedom and teaching.

However, in Maxwell v. Cole, the chairman of obstetrics and gynecology was successfully sued for failure to develop and enforce rules regarding qualifications and supervision of trainees. The chairman was not personally involved in the care of a woman who sustained a bladder perforation caused by resident physicians. The court disagreed with the defendant that he owed no duty because no doctor-patient relationship was formed, stating: “If the chief of service fails to provide medically acceptable rules and regulations which would [ensure] appropriate supervision of ill patients, then it is reasonable to find that a breach of the standards of medical care by that individual has occurred.”

Training programs face liabilities other than those arising from medical malpractice, such as disciplinary actions, employer-employee disputes, sexual harassment, etc. The incidence of auto accidents in overfatigued medical trainees falling asleep at the wheel is very high, in some surveys close to 50%, and accidents are more likely to occur in the immediate postcall period. Court decisions in analogous factual circumstances, though not involving medical trainees, have favored the accident victim. In one case, the court noted that “… the appellee (Norfolk & Western Railway Company, the employer) could have reasonably foreseen that its exhausted employee, who had been required to work 27 hours without rest, would pose a risk of harm to other motorists …” In another case, the court held that “the defendant corporation (McDonald's Restaurants of Oregon Inc.) knew or should have known that its employee was a hazard to himself and others when he drove home from the workplace after working numerous hours.”

Question: After being on call for 30 hours, the first-year medical resident caused a pneumothorax during a thoracentesis, which was unsupervised because of short staffing. The Accreditation Council for Graduate Medical Education has a rule that limits in-hospital on-call duty to 24 consecutive hours. The residency program itself requires all first-year residents to be physically supervised for procedures such as a thoracentesis. On his way home, the resident momentarily fell asleep at the wheel, struck a car, and injured its driver. Which of the following choices best describes the liability issues involved?

A. Residency program is liable for pneumothorax because it violated its own rules regarding supervision of procedures.

B. Residency program is liable for auto accident because unreasonable work hours were a substantial contributory cause.

C. Resident and program are jointly liable for both injuries.

D. ACGME regulations as well as residency program's own rules are likely to be used as evidentiary standards during litigation.

E. A good plaintiff lawyer will invoke all of the above.

Answer: E. Graduate medical education programs, also called residency programs, are mandated to provide the requisite services and supervision for the education of their trainees. ACGME is the overriding authority responsible for the accreditation of post-MD medical training programs within the United States. GME programs that violate their own rules naturally place themselves at risk for liability. Examples are written rules stating that catheters are to be inserted under the supervision of an attending physician, or that all elective procedures are to be performed with an attending present.

In 1984, 18-year-old Libby Zion presented to a New York hospital with fever and agitation, and died less than 24 hours after admission with an undiagnosed illness. The intern and resident caring for Ms. Zion were questioned about the delay in the patient's being seen, use of restraints, lack of supervision, the contraindicated administration of meperidine in a patient who was taking phenelzine, and failure to make a diagnosis. Although a Manhattan grand jury unanimously dismissed criminal charges, the New York State Board of Regents voted to censure and reprimand the residents for grossly negligent care.

This case alerted the nation to the issue of resident work conditions and led to the creation of the Bell Commission, which found that “inadequate attending supervision, combined with impaired house-staff judgment due to fatigue, were contributory causes of the patient's death.” In 1988, the New York State Health Code implemented recommendations from the commission, limiting weekly work time to 80 hours, and consecutive hospital duty time to 24 hours. These reforms were soon adopted nationwide, with the intent of minimizing fatigue-related errors.

Supervising physicians are commonly named as codefendants for resident error, but program directors and teaching faculty who are uninvolved in direct patient care might also face legal liability, although the chances of plaintiff success are lower. In the example of Swidryk v. St. Michaels Medical Center, Dr. Swidryk was in his third week of obstetrical training when he delivered an infant who developed birth difficulties and brain damage. When he was sued for malpractice, Dr. Swidryk in turn sued the director of medical education, alleging that the director's failure to educate and supervise adequately was the proximate cause of his negligent care. The New Jersey Appellate Court dismissed those claims, reasoning that to decide otherwise would be to interfere with the academic decisions of the university, to encourage a pattern of educational malpractice against schools and residency programs each time a resident is sued, and to unnecessarily increase malpractice litigation if such a tort were recognized.

In another case, a California Appeals court dismissed an action against a professor who was alleged to have offered an opinion regarding treatment. The court ruled that no physician-patient relationship was formed since there was no control over the actions of the actual treating doctor and that to hold otherwise would undermine principles of academic freedom and teaching.

However, in Maxwell v. Cole, the chairman of obstetrics and gynecology was successfully sued for failure to develop and enforce rules regarding qualifications and supervision of trainees. The chairman was not personally involved in the care of a woman who sustained a bladder perforation caused by resident physicians. The court disagreed with the defendant that he owed no duty because no doctor-patient relationship was formed, stating: “If the chief of service fails to provide medically acceptable rules and regulations which would [ensure] appropriate supervision of ill patients, then it is reasonable to find that a breach of the standards of medical care by that individual has occurred.”

Training programs face liabilities other than those arising from medical malpractice, such as disciplinary actions, employer-employee disputes, sexual harassment, etc. The incidence of auto accidents in overfatigued medical trainees falling asleep at the wheel is very high, in some surveys close to 50%, and accidents are more likely to occur in the immediate postcall period. Court decisions in analogous factual circumstances, though not involving medical trainees, have favored the accident victim. In one case, the court noted that “… the appellee (Norfolk & Western Railway Company, the employer) could have reasonably foreseen that its exhausted employee, who had been required to work 27 hours without rest, would pose a risk of harm to other motorists …” In another case, the court held that “the defendant corporation (McDonald's Restaurants of Oregon Inc.) knew or should have known that its employee was a hazard to himself and others when he drove home from the workplace after working numerous hours.”

Question: After being on call for 30 hours, the first-year medical resident caused a pneumothorax during a thoracentesis, which was unsupervised because of short staffing. The Accreditation Council for Graduate Medical Education (ACGME) has a rule that limits in-hospital on-call duty to 24 consecutive hours. The residency program itself requires all first-year residents to be physically supervised for procedures such as a thoracentesis. On his way home, the resident momentarily fell asleep at the wheel, struck a car, and injured its driver. Which of the following choices best describes the liability issues involved:

A. Residency program is liable for pneumothorax because it violated its own rules regarding supervision of procedures.

B. Residency program is liable for auto accident because unreasonable work-hours were a substantial contributory cause.

C. Resident and program are jointly liable for both injuries.

D. ACGME regulations as well as residency program's own rules are likely to be used as evidentiary standards during litigation.

E. A good plaintiff lawyer will invoke all of the above.

Answer: E. Graduate medical education (GME) programs, commonly called residency programs, are mandated to provide the requisite services and supervision for the education of their trainees. ACGME is the overriding authority that is responsible for the accreditation of post-MD medical training programs within the United States. GME programs that violate their own rules naturally place themselves at risk for liability.

Examples are written rules stating that catheters are to be inserted under the supervision of an attending physician, or that all elective procedures are to be performed with an attending present.

In 1984, an 18-year-old woman named Libby Zion presented to a New York hospital with fever and agitation, and died less than 24 hours after admission with an undiagnosed illness. The intern and resident caring for Ms. Zion were questioned about issues including the delay in the patient being seen, use of restraints, lack of supervision, the contraindicated administration of meperidine in a patient who was taking phenelzine, and failure to make a diagnosis. Although a Manhattan grand jury unanimously dismissed criminal charges, the New York State Board of Regents voted to censure and reprimand the residents for grossly negligent care.

This case alerted the nation to the issue of resident work conditions and led to the creation of the Bell Commission, which found that “inadequate attending supervision, combined with impaired house-staff judgment due to fatigue, were contributory causes of the patient's death.” In 1988, the New York State Health Code implemented recommendations from the Bell Commission, limiting weekly work hours to 80 hours, and consecutive hospital duty hours to 24 hours. These reforms were soon adopted nationwide.

Supervising physicians are commonly named as codefendants for resident error, but program directors and teaching faculty who are uninvolved in direct patient care might also face legal liability, although the chances of plaintiff success are much lower. Take Swidryk v. St. Michaels Medical Center as an example. Dr. Swidryk was in his third week of obstetrical training when he delivered an infant who developed birth difficulties and brain damage. When he was sued, Dr. Swidryk in turn sued the director of medical education, alleging that the director's failure to educate and supervise adequately was the proximate cause of his negligent care. The New Jersey Appellate Court dismissed those claims, reasoning that to decide otherwise would be to interfere with the academic decisions of the university and to encourage a pattern of educational malpractice against schools and residency programs each time a resident is sued.

In Maxwell v. Cole, the chairman of ob.gyn. was successfully sued for failure to develop and enforce rules regarding qualifications and supervision of trainees. The chairman was not personally involved in the care of a woman who sustained a bladder perforation caused by resident physicians. The court disagreed with the defendant that he owed no duty because no doctor-patient relationship was formed, stating: “If the chief of service fails to provide medically acceptable rules and regulations which would insure appropriate supervision of ill patients, then it is reasonable to find that a breach of the standards of medical care by that individual has occurred.”

Training programs face liabilities other than those arising from medical malpractice, such as disciplinary actions, employer-employee disputes, sexual harassment, etc. One issue deserving of attention: auto accidents in overfatigued medical trainees. The incidence of such trainees falling asleep at the wheel is very high, in some surveys close to 50%, and accidents are more likely to occur in the immediate post-call period. Court decisions in analogous factual circumstances, though not involving medical trainees, have favored the accident victim. In one case, the court noted that “… the appellee (Norfolk & Western Railway Company, the employer) could have reasonably foreseen that its exhausted employee, who had been required to work 27 hours without rest, would pose a risk of harm to other motorists …”

Question: After being on call for 30 hours, the first-year medical resident caused a pneumothorax during a thoracentesis, which was unsupervised because of short staffing. The Accreditation Council for Graduate Medical Education (ACGME) has a rule that limits in-hospital on-call duty to 24 consecutive hours. The residency program itself requires all first-year residents to be physically supervised for procedures such as a thoracentesis. On his way home, the resident momentarily fell asleep at the wheel, struck a car, and injured its driver. Which of the following choices best describes the liability issues involved:

A. Residency program is liable for pneumothorax because it violated its own rules regarding supervision of procedures.

B. Residency program is liable for auto accident because unreasonable work-hours were a substantial contributory cause.

C. Resident and program are jointly liable for both injuries.

D. ACGME regulations as well as residency program's own rules are likely to be used as evidentiary standards during litigation.

E. A good plaintiff lawyer will invoke all of the above.

Answer: E. Graduate medical education (GME) programs, commonly called residency programs, are mandated to provide the requisite services and supervision for the education of their trainees. ACGME is the overriding authority that is responsible for the accreditation of post-MD medical training programs within the United States. GME programs that violate their own rules naturally place themselves at risk for liability.

Examples are written rules stating that catheters are to be inserted under the supervision of an attending physician, or that all elective procedures are to be performed with an attending present.

In 1984, an 18-year-old woman named Libby Zion presented to a New York hospital with fever and agitation, and died less than 24 hours after admission with an undiagnosed illness. The intern and resident caring for Ms. Zion were questioned about issues including the delay in the patient being seen, use of restraints, lack of supervision, the contraindicated administration of meperidine in a patient who was taking phenelzine, and failure to make a diagnosis. Although a Manhattan grand jury unanimously dismissed criminal charges, the New York State Board of Regents voted to censure and reprimand the residents for grossly negligent care.

This case alerted the nation to the issue of resident work conditions and led to the creation of the Bell Commission, which found that “inadequate attending supervision, combined with impaired house-staff judgment due to fatigue, were contributory causes of the patient's death.” In 1988, the New York State Health Code implemented recommendations from the Bell Commission, limiting weekly work hours to 80 hours, and consecutive hospital duty hours to 24 hours. These reforms were soon adopted nationwide.

Supervising physicians are commonly named as codefendants for resident error, but program directors and teaching faculty who are uninvolved in direct patient care might also face legal liability, although the chances of plaintiff success are much lower. Take Swidryk v. St. Michaels Medical Center as an example. Dr. Swidryk was in his third week of obstetrical training when he delivered an infant who developed birth difficulties and brain damage. When he was sued, Dr. Swidryk in turn sued the director of medical education, alleging that the director's failure to educate and supervise adequately was the proximate cause of his negligent care. The New Jersey Appellate Court dismissed those claims, reasoning that to decide otherwise would be to interfere with the academic decisions of the university and to encourage a pattern of educational malpractice against schools and residency programs each time a resident is sued.

In Maxwell v. Cole, the chairman of ob.gyn. was successfully sued for failure to develop and enforce rules regarding qualifications and supervision of trainees. The chairman was not personally involved in the care of a woman who sustained a bladder perforation caused by resident physicians. The court disagreed with the defendant that he owed no duty because no doctor-patient relationship was formed, stating: “If the chief of service fails to provide medically acceptable rules and regulations which would insure appropriate supervision of ill patients, then it is reasonable to find that a breach of the standards of medical care by that individual has occurred.”

Training programs face liabilities other than those arising from medical malpractice, such as disciplinary actions, employer-employee disputes, sexual harassment, etc. One issue deserving of attention: auto accidents in overfatigued medical trainees. The incidence of such trainees falling asleep at the wheel is very high, in some surveys close to 50%, and accidents are more likely to occur in the immediate post-call period. Court decisions in analogous factual circumstances, though not involving medical trainees, have favored the accident victim. In one case, the court noted that “… the appellee (Norfolk & Western Railway Company, the employer) could have reasonably foreseen that its exhausted employee, who had been required to work 27 hours without rest, would pose a risk of harm to other motorists …”

Question: After being on call for 30 hours, the first-year medical resident caused a pneumothorax during a thoracentesis, which was unsupervised because of short staffing. The Accreditation Council for Graduate Medical Education (ACGME) has a rule that limits in-hospital on-call duty to 24 consecutive hours. The residency program itself requires all first-year residents to be physically supervised for procedures such as a thoracentesis. On his way home, the resident momentarily fell asleep at the wheel, struck a car, and injured its driver. Which of the following choices best describes the liability issues involved:

A. Residency program is liable for pneumothorax because it violated its own rules regarding supervision of procedures.

B. Residency program is liable for auto accident because unreasonable work-hours were a substantial contributory cause.

C. Resident and program are jointly liable for both injuries.

D. ACGME regulations as well as residency program's own rules are likely to be used as evidentiary standards during litigation.

E. A good plaintiff lawyer will invoke all of the above.

Answer: E. Graduate medical education (GME) programs, commonly called residency programs, are mandated to provide the requisite services and supervision for the education of their trainees. ACGME is the overriding authority that is responsible for the accreditation of post-MD medical training programs within the United States. GME programs that violate their own rules naturally place themselves at risk for liability.

Examples are written rules stating that catheters are to be inserted under the supervision of an attending physician, or that all elective procedures are to be performed with an attending present.

In 1984, an 18-year-old woman named Libby Zion presented to a New York hospital with fever and agitation, and died less than 24 hours after admission with an undiagnosed illness. The intern and resident caring for Ms. Zion were questioned about issues including the delay in the patient being seen, use of restraints, lack of supervision, the contraindicated administration of meperidine in a patient who was taking phenelzine, and failure to make a diagnosis. Although a Manhattan grand jury unanimously dismissed criminal charges, the New York State Board of Regents voted to censure and reprimand the residents for grossly negligent care.

This case alerted the nation to the issue of resident work conditions and led to the creation of the Bell Commission, which found that “inadequate attending supervision, combined with impaired house-staff judgment due to fatigue, were contributory causes of the patient's death.” In 1988, the New York State Health Code implemented recommendations from the Bell Commission, limiting weekly work hours to 80 hours, and consecutive hospital duty hours to 24 hours. These reforms were soon adopted nationwide.

Supervising physicians are commonly named as codefendants for resident error, but program directors and teaching faculty who are uninvolved in direct patient care might also face legal liability, although the chances of plaintiff success are much lower. Take Swidryk v. St. Michaels Medical Center as an example. Dr. Swidryk was in his third week of obstetrical training when he delivered an infant who developed birth difficulties and brain damage. When he was sued, Dr. Swidryk in turn sued the director of medical education, alleging that the director's failure to educate and supervise adequately was the proximate cause of his negligent care. The New Jersey Appellate Court dismissed those claims, reasoning that to decide otherwise would be to interfere with the academic decisions of the university and to encourage a pattern of educational malpractice against schools and residency programs each time a resident is sued.

In Maxwell v. Cole, the chairman of ob.gyn. was successfully sued for failure to develop and enforce rules regarding qualifications and supervision of trainees. The chairman was not personally involved in the care of a woman who sustained a bladder perforation caused by resident physicians. The court disagreed with the defendant that he owed no duty because no doctor-patient relationship was formed, stating: “If the chief of service fails to provide medically acceptable rules and regulations which would insure appropriate supervision of ill patients, then it is reasonable to find that a breach of the standards of medical care by that individual has occurred.”

Training programs face liabilities other than those arising from medical malpractice, such as disciplinary actions, employer-employee disputes, sexual harassment, etc. One issue deserving of attention: auto accidents in overfatigued medical trainees. The incidence of such trainees falling asleep at the wheel is very high, in some surveys close to 50%, and accidents are more likely to occur in the immediate post-call period. Court decisions in analogous factual circumstances, though not involving medical trainees, have favored the accident victim. In one case, the court noted that “… the appellee (Norfolk & Western Railway Company, the employer) could have reasonably foreseen that its exhausted employee, who had been required to work 27 hours without rest, would pose a risk of harm to other motorists …”

Question: A medical resident in the emergency department administered gentamicin to a renal patient, but failed to adjust the antibiotic dose. He had not consulted the supervising attending physician, who was on call from home. In a lawsuit for this medical error, which of the following is best?

A. Unsupervised or poorly supervised house-staff officers increase the risk of medical negligence.

B. Unless it can be shown that medical error caused patient injury, the health care providers will win this lawsuit.

C. Under tort law, a trainee is judged by much the same standard as that of a fully qualified doctor.

D. The attending physician is generally liable for resident malpractice under the doctrine of vicarious liability.

E. All are correct.

Answer: E. A review found that in 200 consecutive malpractice cases involving residents working in the emergency department, 64 cases (32%) “were attributable to house officers apparently functioning in a nonsupervised capacity, or to residents on rotation from specialty training or moonlighting in an unsupervised capacity” (Ann. Emerg. Med. 1984;13:709-11). Malpractice liability accrues only when patient injury is proximately caused by the negligence of tortfeasors, and medical residents are generally held to the same standard of care as a qualified doctor (“House Staff Liability,” Law & Medicine, June 15, 2010, p. 52). Attending physicians are directly liable for their own negligence, as well as vicariously liable for residents' actions because of their supervisory role, although some authors have considered failure to supervise a form of direct rather than vicarious liability (JAMA 2004;292:1051-6). Some courts have viewed the attending physician as the captain of the ship and the resident as a borrowed servant who has been “loaned” to the physician in charge of the case (JAMA 1970;213:181-2).

In Rockwell v. Stone, an anesthesiology resident missed the patient's vein when he tried to inject sodium thiopental. The intra-arterial or extravasated injection (which one happened was unclear) of this induction agent led to arterial vasospasm and thrombosis, irreversibly compromising the blood supply to the patient's arm and eventually necessitating amputation. The chief of anesthesiology, who was the resident's supervisor, was found vicariously liable for the resident's negligence (173 A.2d 48 [Pa. Super. 1961]).

In another case, an ob.gyn. resident performed a tubal ligation, but the patient subsequently became pregnant and underwent a therapeutic abortion, followed by a hysterectomy. The court decided that “even though the surgical procedure was actually performed by a resident, the attending physician and hospital were under a duty to see that it was performed properly. It is their skill and training as specialists which fit them for that task, and their advanced learning which enables them to judge the competency of the resident's performance” (McCullough v. Hutzel Hospital, 276 N.W.2d 569 [Mich. App. 1979]).

What about the liability of the on-call attending physician who customarily takes calls from home, and may not have previously met the patient? Although there is a duty to supervise the trainee(s), the on-call status alone may not be enough to create a doctor-patient relationship. Decisions are mixed on this point. One court dismissed a negligence claim for failure to supervise two emergency department residents in the treatment of a young girl who died with undiagnosed chicken pox pneumonia (Prosise v. Foster, 544 S.E.2d 331 [Va. 2001]). Yet an on-call agreement was sufficient for another court to impose a doctor-patient relationship upon the supervising attending, with concomitant duty of due care to the patient. That case involved mismanagement of labor that resulted in serious neurologic injury to the newborn (Lownsbury v. VanBuren, 762 N.E.2d 354 [Ohio 2001]).

A supervisor may not be liable when the trainee was performing tasks that he or she is reasonably expected to know. In Richardson v. Denneen, the surgical attending asked the resident to finish suturing and dressing an incision before leaving the operating room. The resident applied phenol instead of alcohol to the skin, with subsequent injury. The court found that it was proper practice for an attending to leave the operating room while the resident sutured the skin—a simple task (82 N.Y.S.2d 623 [N.Y. Super. 1947]).

Finally, the hospital may be vicariously liable for a resident's negligence through the doctrine of respondeat superior if the resident is deemed an employee of the hospital. Whether residents are considered employees or students with respect to the hospital is debatable. The National Labor Relations Board, the Internal Revenue Service, and state courts are at odds over the definition. Although trainees clearly have an educational purpose in their work, courts have frequently ruled that they are hospital employees for purposes of ascertaining vicarious liability.

Question: A medical resident in the emergency department administered gentamicin to a renal patient, but failed to adjust the antibiotic dose. He had not consulted the supervising attending physician, who was on call from home. In a lawsuit for this medical error, which of the following is best?

A. Unsupervised or poorly supervised house-staff officers increase the risk of medical negligence.

B. Unless it can be shown that medical error caused patient injury, the health care providers will win this lawsuit.

C. Under tort law, a trainee is judged by much the same standard as that of a fully qualified doctor.

D. The attending physician is generally liable for resident malpractice under the doctrine of vicarious liability.

E. All are correct.

Answer: E. A review found that in 200 consecutive malpractice cases involving residents working in the emergency department, 64 cases (32%) “were attributable to house officers apparently functioning in a nonsupervised capacity, or to residents on rotation from specialty training or moonlighting in an unsupervised capacity” (Ann. Emerg. Med. 1984;13:709-11). Malpractice liability accrues only when patient injury is proximately caused by the negligence of tortfeasors, and medical residents are generally held to the same standard of care as a qualified doctor (“House Staff Liability,” Law & Medicine, June 15, 2010, p. 52). Attending physicians are directly liable for their own negligence, as well as vicariously liable for residents' actions because of their supervisory role, although some authors have considered failure to supervise a form of direct rather than vicarious liability (JAMA 2004;292:1051-6). Some courts have viewed the attending physician as the captain of the ship and the resident as a borrowed servant who has been “loaned” to the physician in charge of the case (JAMA 1970;213:181-2).

In Rockwell v. Stone, an anesthesiology resident missed the patient's vein when he tried to inject sodium thiopental. The intra-arterial or extravasated injection (which one happened was unclear) of this induction agent led to arterial vasospasm and thrombosis, irreversibly compromising the blood supply to the patient's arm and eventually necessitating amputation. The chief of anesthesiology, who was the resident's supervisor, was found vicariously liable for the resident's negligence (173 A.2d 48 [Pa. Super. 1961]).

In another case, an ob.gyn. resident performed a tubal ligation, but the patient subsequently became pregnant and underwent a therapeutic abortion, followed by a hysterectomy. The court decided that “even though the surgical procedure was actually performed by a resident, the attending physician and hospital were under a duty to see that it was performed properly. It is their skill and training as specialists which fit them for that task, and their advanced learning which enables them to judge the competency of the resident's performance” (McCullough v. Hutzel Hospital, 276 N.W.2d 569 [Mich. App. 1979]).

What about the liability of the on-call attending physician who customarily takes calls from home, and may not have previously met the patient? Although there is a duty to supervise the trainee(s), the on-call status alone may not be enough to create a doctor-patient relationship. Decisions are mixed on this point. One court dismissed a negligence claim for failure to supervise two emergency department residents in the treatment of a young girl who died with undiagnosed chicken pox pneumonia (Prosise v. Foster, 544 S.E.2d 331 [Va. 2001]). Yet an on-call agreement was sufficient for another court to impose a doctor-patient relationship upon the supervising attending, with concomitant duty of due care to the patient. That case involved mismanagement of labor that resulted in serious neurologic injury to the newborn (Lownsbury v. VanBuren, 762 N.E.2d 354 [Ohio 2001]).

A supervisor may not be liable when the trainee was performing tasks that he or she is reasonably expected to know. In Richardson v. Denneen, the surgical attending asked the resident to finish suturing and dressing an incision before leaving the operating room. The resident applied phenol instead of alcohol to the skin, with subsequent injury. The court found that it was proper practice for an attending to leave the operating room while the resident sutured the skin—a simple task (82 N.Y.S.2d 623 [N.Y. Super. 1947]).

Finally, the hospital may be vicariously liable for a resident's negligence through the doctrine of respondeat superior if the resident is deemed an employee of the hospital. Whether residents are considered employees or students with respect to the hospital is debatable. The National Labor Relations Board, the Internal Revenue Service, and state courts are at odds over the definition. Although trainees clearly have an educational purpose in their work, courts have frequently ruled that they are hospital employees for purposes of ascertaining vicarious liability.

Question: A medical resident in the emergency department administered gentamicin to a renal patient, but failed to adjust the antibiotic dose. He had not consulted the supervising attending physician, who was on call from home. In a lawsuit for this medical error, which of the following is best?

A. Unsupervised or poorly supervised house-staff officers increase the risk of medical negligence.

B. Unless it can be shown that medical error caused patient injury, the health care providers will win this lawsuit.

C. Under tort law, a trainee is judged by much the same standard as that of a fully qualified doctor.

D. The attending physician is generally liable for resident malpractice under the doctrine of vicarious liability.

E. All are correct.

Answer: E. A review found that in 200 consecutive malpractice cases involving residents working in the emergency department, 64 cases (32%) “were attributable to house officers apparently functioning in a nonsupervised capacity, or to residents on rotation from specialty training or moonlighting in an unsupervised capacity” (Ann. Emerg. Med. 1984;13:709-11). Malpractice liability accrues only when patient injury is proximately caused by the negligence of tortfeasors, and medical residents are generally held to the same standard of care as a qualified doctor (“House Staff Liability,” Law & Medicine, June 15, 2010, p. 52). Attending physicians are directly liable for their own negligence, as well as vicariously liable for residents' actions because of their supervisory role, although some authors have considered failure to supervise a form of direct rather than vicarious liability (JAMA 2004;292:1051-6). Some courts have viewed the attending physician as the captain of the ship and the resident as a borrowed servant who has been “loaned” to the physician in charge of the case (JAMA 1970;213:181-2).

In Rockwell v. Stone, an anesthesiology resident missed the patient's vein when he tried to inject sodium thiopental. The intra-arterial or extravasated injection (which one happened was unclear) of this induction agent led to arterial vasospasm and thrombosis, irreversibly compromising the blood supply to the patient's arm and eventually necessitating amputation. The chief of anesthesiology, who was the resident's supervisor, was found vicariously liable for the resident's negligence (173 A.2d 48 [Pa. Super. 1961]).

In another case, an ob.gyn. resident performed a tubal ligation, but the patient subsequently became pregnant and underwent a therapeutic abortion, followed by a hysterectomy. The court decided that “even though the surgical procedure was actually performed by a resident, the attending physician and hospital were under a duty to see that it was performed properly. It is their skill and training as specialists which fit them for that task, and their advanced learning which enables them to judge the competency of the resident's performance” (McCullough v. Hutzel Hospital, 276 N.W.2d 569 [Mich. App. 1979]).

What about the liability of the on-call attending physician who customarily takes calls from home, and may not have previously met the patient? Although there is a duty to supervise the trainee(s), the on-call status alone may not be enough to create a doctor-patient relationship. Decisions are mixed on this point. One court dismissed a negligence claim for failure to supervise two emergency department residents in the treatment of a young girl who died with undiagnosed chicken pox pneumonia (Prosise v. Foster, 544 S.E.2d 331 [Va. 2001]). Yet an on-call agreement was sufficient for another court to impose a doctor-patient relationship upon the supervising attending, with concomitant duty of due care to the patient. That case involved mismanagement of labor that resulted in serious neurologic injury to the newborn (Lownsbury v. VanBuren, 762 N.E.2d 354 [Ohio 2001]).

A supervisor may not be liable when the trainee was performing tasks that he or she is reasonably expected to know. In Richardson v. Denneen, the surgical attending asked the resident to finish suturing and dressing an incision before leaving the operating room. The resident applied phenol instead of alcohol to the skin, with subsequent injury. The court found that it was proper practice for an attending to leave the operating room while the resident sutured the skin—a simple task (82 N.Y.S.2d 623 [N.Y. Super. 1947]).

Finally, the hospital may be vicariously liable for a resident's negligence through the doctrine of respondeat superior if the resident is deemed an employee of the hospital. Whether residents are considered employees or students with respect to the hospital is debatable. The National Labor Relations Board, the Internal Revenue Service, and state courts are at odds over the definition. Although trainees clearly have an educational purpose in their work, courts have frequently ruled that they are hospital employees for purposes of ascertaining vicarious liability.

Question: A medical resident in the emergency department administered gentamicin to a renal patient, but failed to adjust the antibiotic dose. He had not consulted the supervising attending physician, who was on call from home. In a lawsuit for this medical error, which of the following is best?

A. Unsupervised or poorly supervised house-staff officers increase the risk of medical negligence.

B. Unless it can be shown that medical error caused patient injury, the health care providers will win this lawsuit.

C. Under tort law, a trainee is judged by much the same standard as that of a fully qualified doctor.

D. The attending physician is generally liable for resident malpractice under the doctrine of vicarious liability.

E. All are correct.

Answer: E. A review found that in 200 consecutive malpractice cases involving residents working in the emergency department, 64 cases (32%) “were attributable to house officers apparently functioning in a nonsupervised capacity, or to residents on rotation from specialty training or moonlighting in an unsupervised capacity” (Ann. Emerg. Med. 1984;13:709-11). Malpractice liability accrues only when patient injury is proximately caused by the negligence of tortfeasors, and medical residents are generally held to the same standard of care as a qualified doctor (“House Staff Liability,” Law & Medicine, June 15, 2010, p. 52). Attending physicians are directly liable for their own negligence, as well as vicariously liable for residents' actions because of their supervisory role, although some authors have considered failure to supervise a form of direct rather than vicarious liability (JAMA 2004;292:1051-6). Some courts have viewed the attending physician as the captain of the ship and the resident as a borrowed servant who has been “loaned” to the physician in charge of the case (JAMA 1970;213:181-2).

In Rockwell v. Stone, an anesthesiology resident missed the patient's vein when he tried to inject sodium thiopental. The intra-arterial or extravasated injection (which one happened was unclear) of this induction agent led to arterial vasospasm and thrombosis, irreversibly compromising the blood supply to the patient's arm and eventually necessitating amputation. The chief of anesthesiology, who was the resident's supervisor, was found vicariously liable for the resident's negligence (173 A.2d 48 [Pa. Super. 1961]).

In another case, an ob.gyn. resident performed a tubal ligation, but the patient subsequently became pregnant and underwent a therapeutic abortion, followed by a hysterectomy. The court decided that “even though the surgical procedure was actually performed by a resident, the attending physician and hospital were under a duty to see that it was performed properly. It is their skill and training as specialists which fit them for that task, and their advanced learning which enables them to judge the competency of the resident's performance” (McCullough v. Hutzel Hospital, 276 N.W.2d 569 [Mich. App. 1979]).

What about the liability of the on-call attending physician who customarily takes calls from home, and may not have previously met the patient? Although there is a duty to supervise the trainee(s), the on-call status alone may not be enough to create a doctor-patient relationship. Decisions are mixed on this point. One court dismissed a negligence claim for failure to supervise two emergency department residents in the treatment of a young girl who died with undiagnosed chicken pox pneumonia (Prosise v. Foster, 544 S.E.2d 331 [Va. 2001]). Yet an on-call agreement was sufficient for another court to impose a doctor-patient relationship upon the supervising attending, with concomitant duty of due care to the patient. That case involved mismanagement of labor that resulted in serious neurologic injury to the newborn (Lownsbury v. VanBuren, 762 N.E.2d 354 [Ohio 2001]).

A supervisor may not be liable when the trainee was performing tasks that he or she is reasonably expected to know. In Richardson v. Denneen, the surgical attending asked the resident to finish suturing and dressing an incision before leaving the operating room. The resident applied phenol instead of alcohol to the skin, with subsequent injury. The court found that it was proper practice for an attending to leave the operating room while the resident sutured the skin—a simple task (82 N.Y.S.2d 623 [N.Y. Super. 1947]).

In another case, a neurology resident failed to respond to calls from the recovery-room nurses who had noticed that the patient was displaying decreased movement of the extremities. As a result of the delay, the patient eventually expired from a blood clot that had compressed the spinal cord. The resident was found liable for negligent care (“The proper medical standard is to evacuate the blood clot as quickly as possible.… That is something that you are told in the first 2 weeks of your training”). However, the supervising neurosurgeon escaped liability, as the resident had not informed him of the clinical findings, and thus he could not have prevented the mishap (Parmelee v. Kline, 579 So.2d 1008 [La. App. 1991]).

Finally, the hospital may be vicariously liable for a resident's negligence through the doctrine of respondeat superior if the resident is deemed an employee of the hospital. Whether residents are considered employees or students with respect to the hospital is debatable. The National Labor Relations Board, the Internal Revenue Service, and state courts are at odds over the definition. Although trainees clearly have an educational purpose in their work, courts have frequently ruled that they are hospital employees for purposes of ascertaining vicarious liability.

Question: A medical resident in the emergency department administered gentamicin to a renal patient, but failed to adjust the antibiotic dose. He had not consulted the supervising attending physician, who was on call from home. In a lawsuit for this medical error, which of the following is best?

A. Unsupervised or poorly supervised house-staff officers increase the risk of medical negligence.

B. Unless it can be shown that medical error caused patient injury, the health care providers will win this lawsuit.

C. Under tort law, a trainee is judged by much the same standard as that of a fully qualified doctor.

D. The attending physician is generally liable for resident malpractice under the doctrine of vicarious liability.

E. All are correct.

Answer: E. A review found that in 200 consecutive malpractice cases involving residents working in the emergency department, 64 cases (32%) “were attributable to house officers apparently functioning in a nonsupervised capacity, or to residents on rotation from specialty training or moonlighting in an unsupervised capacity” (Ann. Emerg. Med. 1984;13:709-11). Malpractice liability accrues only when patient injury is proximately caused by the negligence of tortfeasors, and medical residents are generally held to the same standard of care as a qualified doctor (“House Staff Liability,” Law & Medicine, June 15, 2010, p. 52). Attending physicians are directly liable for their own negligence, as well as vicariously liable for residents' actions because of their supervisory role, although some authors have considered failure to supervise a form of direct rather than vicarious liability (JAMA 2004;292:1051-6). Some courts have viewed the attending physician as the captain of the ship and the resident as a borrowed servant who has been “loaned” to the physician in charge of the case (JAMA 1970;213:181-2).

In Rockwell v. Stone, an anesthesiology resident missed the patient's vein when he tried to inject sodium thiopental. The intra-arterial or extravasated injection (which one happened was unclear) of this induction agent led to arterial vasospasm and thrombosis, irreversibly compromising the blood supply to the patient's arm and eventually necessitating amputation. The chief of anesthesiology, who was the resident's supervisor, was found vicariously liable for the resident's negligence (173 A.2d 48 [Pa. Super. 1961]).

In another case, an ob.gyn. resident performed a tubal ligation, but the patient subsequently became pregnant and underwent a therapeutic abortion, followed by a hysterectomy. The court decided that “even though the surgical procedure was actually performed by a resident, the attending physician and hospital were under a duty to see that it was performed properly. It is their skill and training as specialists which fit them for that task, and their advanced learning which enables them to judge the competency of the resident's performance” (McCullough v. Hutzel Hospital, 276 N.W.2d 569 [Mich. App. 1979]).

What about the liability of the on-call attending physician who customarily takes calls from home, and may not have previously met the patient? Although there is a duty to supervise the trainee(s), the on-call status alone may not be enough to create a doctor-patient relationship. Decisions are mixed on this point. One court dismissed a negligence claim for failure to supervise two emergency department residents in the treatment of a young girl who died with undiagnosed chicken pox pneumonia (Prosise v. Foster, 544 S.E.2d 331 [Va. 2001]). Yet an on-call agreement was sufficient for another court to impose a doctor-patient relationship upon the supervising attending, with concomitant duty of due care to the patient. That case involved mismanagement of labor that resulted in serious neurologic injury to the newborn (Lownsbury v. VanBuren, 762 N.E.2d 354 [Ohio 2001]).

A supervisor may not be liable when the trainee was performing tasks that he or she is reasonably expected to know. In Richardson v. Denneen, the surgical attending asked the resident to finish suturing and dressing an incision before leaving the operating room. The resident applied phenol instead of alcohol to the skin, with subsequent injury. The court found that it was proper practice for an attending to leave the operating room while the resident sutured the skin—a simple task (82 N.Y.S.2d 623 [N.Y. Super. 1947]).

In another case, a neurology resident failed to respond to calls from the recovery-room nurses who had noticed that the patient was displaying decreased movement of the extremities. As a result of the delay, the patient eventually expired from a blood clot that had compressed the spinal cord. The resident was found liable for negligent care (“The proper medical standard is to evacuate the blood clot as quickly as possible.… That is something that you are told in the first 2 weeks of your training”). However, the supervising neurosurgeon escaped liability, as the resident had not informed him of the clinical findings, and thus he could not have prevented the mishap (Parmelee v. Kline, 579 So.2d 1008 [La. App. 1991]).

Finally, the hospital may be vicariously liable for a resident's negligence through the doctrine of respondeat superior if the resident is deemed an employee of the hospital. Whether residents are considered employees or students with respect to the hospital is debatable. The National Labor Relations Board, the Internal Revenue Service, and state courts are at odds over the definition. Although trainees clearly have an educational purpose in their work, courts have frequently ruled that they are hospital employees for purposes of ascertaining vicarious liability.

Question: A medical resident in the emergency department administered gentamicin to a renal patient, but failed to adjust the antibiotic dose. He had not consulted the supervising attending physician, who was on call from home. In a lawsuit for this medical error, which of the following is best?

A. Unsupervised or poorly supervised house-staff officers increase the risk of medical negligence.

B. Unless it can be shown that medical error caused patient injury, the health care providers will win this lawsuit.

C. Under tort law, a trainee is judged by much the same standard as that of a fully qualified doctor.

D. The attending physician is generally liable for resident malpractice under the doctrine of vicarious liability.

E. All are correct.

Answer: E. A review found that in 200 consecutive malpractice cases involving residents working in the emergency department, 64 cases (32%) “were attributable to house officers apparently functioning in a nonsupervised capacity, or to residents on rotation from specialty training or moonlighting in an unsupervised capacity” (Ann. Emerg. Med. 1984;13:709-11). Malpractice liability accrues only when patient injury is proximately caused by the negligence of tortfeasors, and medical residents are generally held to the same standard of care as a qualified doctor (“House Staff Liability,” Law & Medicine, June 15, 2010, p. 52). Attending physicians are directly liable for their own negligence, as well as vicariously liable for residents' actions because of their supervisory role, although some authors have considered failure to supervise a form of direct rather than vicarious liability (JAMA 2004;292:1051-6). Some courts have viewed the attending physician as the captain of the ship and the resident as a borrowed servant who has been “loaned” to the physician in charge of the case (JAMA 1970;213:181-2).

In Rockwell v. Stone, an anesthesiology resident missed the patient's vein when he tried to inject sodium thiopental. The intra-arterial or extravasated injection (which one happened was unclear) of this induction agent led to arterial vasospasm and thrombosis, irreversibly compromising the blood supply to the patient's arm and eventually necessitating amputation. The chief of anesthesiology, who was the resident's supervisor, was found vicariously liable for the resident's negligence (173 A.2d 48 [Pa. Super. 1961]).

In another case, an ob.gyn. resident performed a tubal ligation, but the patient subsequently became pregnant and underwent a therapeutic abortion, followed by a hysterectomy. The court decided that “even though the surgical procedure was actually performed by a resident, the attending physician and hospital were under a duty to see that it was performed properly. It is their skill and training as specialists which fit them for that task, and their advanced learning which enables them to judge the competency of the resident's performance” (McCullough v. Hutzel Hospital, 276 N.W.2d 569 [Mich. App. 1979]).

What about the liability of the on-call attending physician who customarily takes calls from home, and may not have previously met the patient? Although there is a duty to supervise the trainee(s), the on-call status alone may not be enough to create a doctor-patient relationship. Decisions are mixed on this point. One court dismissed a negligence claim for failure to supervise two emergency department residents in the treatment of a young girl who died with undiagnosed chicken pox pneumonia (Prosise v. Foster, 544 S.E.2d 331 [Va. 2001]). Yet an on-call agreement was sufficient for another court to impose a doctor-patient relationship upon the supervising attending, with concomitant duty of due care to the patient. That case involved mismanagement of labor that resulted in serious neurologic injury to the newborn (Lownsbury v. VanBuren, 762 N.E.2d 354 [Ohio 2001]).

A supervisor may not be liable when the trainee was performing tasks that he or she is reasonably expected to know. In Richardson v. Denneen, the surgical attending asked the resident to finish suturing and dressing an incision before leaving the operating room. The resident applied phenol instead of alcohol to the skin, with subsequent injury. The court found that it was proper practice for an attending to leave the operating room while the resident sutured the skin—a simple task (82 N.Y.S.2d 623 [N.Y. Super. 1947]).

In another case, a neurology resident failed to respond to calls from the recovery-room nurses who had noticed that the patient was displaying decreased movement of the extremities. As a result of the delay, the patient eventually expired from a blood clot that had compressed the spinal cord. The resident was found liable for negligent care (“The proper medical standard is to evacuate the blood clot as quickly as possible.… That is something that you are told in the first 2 weeks of your training”). However, the supervising neurosurgeon escaped liability, as the resident had not informed him of the clinical findings, and thus he could not have prevented the mishap (Parmelee v. Kline, 579 So.2d 1008 [La. App. 1991]).

Finally, the hospital may be vicariously liable for a resident's negligence through the doctrine of respondeat superior if the resident is deemed an employee of the hospital. Whether residents are considered employees or students with respect to the hospital is debatable. The National Labor Relations Board, the Internal Revenue Service, and state courts are at odds over the definition. Although trainees clearly have an educational purpose in their work, courts have frequently ruled that they are hospital employees for purposes of ascertaining vicarious liability.

Question: An unconscious man is brought to an emergency department in vascular collapse. He had been thrown off a motorcycle and ruptured his spleen. The surgeon recommended emergency surgery and blood transfusion, but no next of kin was readily available to give consent. An old wrinkled card in his wallet indicates the patient is a Jehovah's Witness and should never receive blood, but there is a diagonal line drawn across that part of the card. Which of the following is best?

A. All interventions require informed consent, so in this case the surgeon should not operate.

B. Because this is an emergency, no consent for operation or blood transfusion is necessary, as long as you get two supporting doctor signatures.

C. If the man's spouse can be located and she gives consent for transfusion, then it's okay.

D. Operate on the patient, but respect his disavowal of blood even if it means death.

E. If the patient desperately needs a lifesaving blood transfusion, it should be given, because his wishes are not entirely clear.

Answer: E. Some of the other choices have merit, but the best answer is E. This is because of the dire nature of the patient's condition, the critical and immediate need for blood, and most of all, the reasonable belief that the line across the wrinkled card represents a revocation of an earlier refusal of blood. Some may view D as the better option, and it is arguably the legally “safe” approach. However, a life hangs in the balance, and a doctor's first duty is to the patient.

Exceptions to Informed Consent

Under some circumstances, informed consent may be neither possible nor necessary. Statutory provisions that protect public health and safety may mandate quarantine, examination, treatment of a patient, or referral of a death to a coroner without requiring patient or family consent. The following are legitimate exceptions to the informed consent requirement:

▸ Emergencies: The guiding principle is whether delay in treatment in order to obtain consent would result in harm to the patient. The procedure need not be lifesaving, as long as the potential harm to the patient is significant. This exception is typically provided for in state statutes on informed consent, such as this one from Hawaii: “Nothing in this section shall require informed consent from a patient or a patient's guardian when emergency treatment or an emergency surgical procedure is rendered by a health care provider and the obtaining of consent is not reasonably feasible under the circumstances without adversely affecting the condition of the patient's health” (Hawaii Revised Statutes §671-3 [d]).

▸ Unanticipated conditions during surgery: This is a narrowly construed exception and comes into play when a surgeon encounters an unanticipated abnormality within the field of surgery. It is called the “extension doctrine,” and it assumes that the surgeon is using reasonable judgment. Thus, a surgeon incurred no liability for draining some ovarian cysts during the course of an appendectomy (Kennedy v. Parrott, 90 S.E.2d 754 [N.C. 1956]). But in a case where the surgeon operated on the left ear despite consent only for the right ear, the court held his conduct actionable as the situation was not a true emergency (Mohr v. Williams, 104 N.W. 12 [Minn. 1905]). The condition must be one that was unforeseen, and the patient must not have expressly refused such an intervention. Most informed consent forms now incorporate an “unanticipated condition” clause.

▸ Therapeutic privilege: If a doctor believes that the patient's emotional and physical condition could be adversely affected by full disclosure of the treatment risks, disclosure may be legally withheld. This principle is called therapeutic privilege, which was clearly enunciated in Nishi v. Hartwell, Hawaii's first case on informed consent. The plaintiff-dentist, Dr. Nishi, sought damages for below-waist paralysis following thoracic aortography. This procedure-related risk was never discussed with him, purportedly because of his serious underlying cardiac status and extreme apprehension over his condition.

In addressing the therapeutic privilege defense raised by the defendant, the Hawaii Supreme Court held that “the doctrine recognizes that the primary duty of a physician is to do what is best for his patient, and that a physician may withhold disclosure of information regarding any untoward consequences of a treatment where full disclosure will be detrimental to the patient's total care and best interest” (Nishi v. Hartwell, 473 P.2d 116 [Haw. 1970]). This doctrine has subsequently been reaffirmed (Carr v. Strode, 79 Hawaii 475 [1995]).

In the well-known case of Canterbury v. Spence, the U.S. Court of Appeals in the District of Columbia also articulated the therapeutic privilege exception to informed consent, in order to enable the doctor to withhold risk information if such disclosure would pose a serious threat of psychological detriment to the patient. However, the physician is still required to disclose any information that will not prove harmful to the patient (Canterbury v. Spence, 464 F.2d 772 [D.C. Cir. 1972]).

▸ Waiver or risks known to the patient: Some patients expressly indicate that they do not wish to be informed of the treatment procedure and associated risks. This constitutes a waiver and is recognized as a legitimate exception. Waivers should be documented in writing. The health care provider is also not obligated to disclose risks that are commonly understood, obvious, or already known to the patient.

▸ Informed consent not feasible: The U.S. government was alleged to have used investigational drugs on military personnel during the Gulf War without their consent. In Doe v. Sullivan, a federal court refused to enforce the informed consent requirement because of the impracticality of obtaining consent under the circumstances (Doe v. Sullivan, 938 F.2d 1370 [D.C. Cir. 1991]). This exception to informed consent is obviously a very narrow one.

Contact the author at [email protected].

Question: An unconscious man is brought to an emergency department in vascular collapse. He had been thrown off a motorcycle and ruptured his spleen. The surgeon recommended emergency surgery and blood transfusion, but no next of kin was readily available to give consent. An old wrinkled card in his wallet indicates the patient is a Jehovah's Witness and should never receive blood, but there is a diagonal line drawn across that part of the card. Which of the following is best?

A. All interventions require informed consent, so in this case the surgeon should not operate.

B. Because this is an emergency, no consent for operation or blood transfusion is necessary, as long as you get two supporting doctor signatures.

C. If the man's spouse can be located and she gives consent for transfusion, then it's okay.

D. Operate on the patient, but respect his disavowal of blood even if it means death.

E. If the patient desperately needs a lifesaving blood transfusion, it should be given, because his wishes are not entirely clear.

Answer: E. Some of the other choices have merit, but the best answer is E. This is because of the dire nature of the patient's condition, the critical and immediate need for blood, and most of all, the reasonable belief that the line across the wrinkled card represents a revocation of an earlier refusal of blood. Some may view D as the better option, and it is arguably the legally “safe” approach. However, a life hangs in the balance, and a doctor's first duty is to the patient.

Exceptions to Informed Consent

Under some circumstances, informed consent may be neither possible nor necessary. Statutory provisions that protect public health and safety may mandate quarantine, examination, treatment of a patient, or referral of a death to a coroner without requiring patient or family consent. The following are legitimate exceptions to the informed consent requirement:

▸ Emergencies: The guiding principle is whether delay in treatment in order to obtain consent would result in harm to the patient. The procedure need not be lifesaving, as long as the potential harm to the patient is significant. This exception is typically provided for in state statutes on informed consent, such as this one from Hawaii: “Nothing in this section shall require informed consent from a patient or a patient's guardian when emergency treatment or an emergency surgical procedure is rendered by a health care provider and the obtaining of consent is not reasonably feasible under the circumstances without adversely affecting the condition of the patient's health” (Hawaii Revised Statutes §671-3 [d]).

▸ Unanticipated conditions during surgery: This is a narrowly construed exception and comes into play when a surgeon encounters an unanticipated abnormality within the field of surgery. It is called the “extension doctrine,” and it assumes that the surgeon is using reasonable judgment. Thus, a surgeon incurred no liability for draining some ovarian cysts during the course of an appendectomy (Kennedy v. Parrott, 90 S.E.2d 754 [N.C. 1956]). But in a case where the surgeon operated on the left ear despite consent only for the right ear, the court held his conduct actionable as the situation was not a true emergency (Mohr v. Williams, 104 N.W. 12 [Minn. 1905]). The condition must be one that was unforeseen, and the patient must not have expressly refused such an intervention. Most informed consent forms now incorporate an “unanticipated condition” clause.

▸ Therapeutic privilege: If a doctor believes that the patient's emotional and physical condition could be adversely affected by full disclosure of the treatment risks, disclosure may be legally withheld. This principle is called therapeutic privilege, which was clearly enunciated in Nishi v. Hartwell, Hawaii's first case on informed consent. The plaintiff-dentist, Dr. Nishi, sought damages for below-waist paralysis following thoracic aortography. This procedure-related risk was never discussed with him, purportedly because of his serious underlying cardiac status and extreme apprehension over his condition.

In addressing the therapeutic privilege defense raised by the defendant, the Hawaii Supreme Court held that “the doctrine recognizes that the primary duty of a physician is to do what is best for his patient, and that a physician may withhold disclosure of information regarding any untoward consequences of a treatment where full disclosure will be detrimental to the patient's total care and best interest” (Nishi v. Hartwell, 473 P.2d 116 [Haw. 1970]). This doctrine has subsequently been reaffirmed (Carr v. Strode, 79 Hawaii 475 [1995]).

In the well-known case of Canterbury v. Spence, the U.S. Court of Appeals in the District of Columbia also articulated the therapeutic privilege exception to informed consent, in order to enable the doctor to withhold risk information if such disclosure would pose a serious threat of psychological detriment to the patient. However, the physician is still required to disclose any information that will not prove harmful to the patient (Canterbury v. Spence, 464 F.2d 772 [D.C. Cir. 1972]).

▸ Waiver or risks known to the patient: Some patients expressly indicate that they do not wish to be informed of the treatment procedure and associated risks. This constitutes a waiver and is recognized as a legitimate exception. Waivers should be documented in writing. The health care provider is also not obligated to disclose risks that are commonly understood, obvious, or already known to the patient.

▸ Informed consent not feasible: The U.S. government was alleged to have used investigational drugs on military personnel during the Gulf War without their consent. In Doe v. Sullivan, a federal court refused to enforce the informed consent requirement because of the impracticality of obtaining consent under the circumstances (Doe v. Sullivan, 938 F.2d 1370 [D.C. Cir. 1991]). This exception to informed consent is obviously a very narrow one.

Contact the author at [email protected].

Question: An unconscious man is brought to an emergency department in vascular collapse. He had been thrown off a motorcycle and ruptured his spleen. The surgeon recommended emergency surgery and blood transfusion, but no next of kin was readily available to give consent. An old wrinkled card in his wallet indicates the patient is a Jehovah's Witness and should never receive blood, but there is a diagonal line drawn across that part of the card. Which of the following is best?

A. All interventions require informed consent, so in this case the surgeon should not operate.

B. Because this is an emergency, no consent for operation or blood transfusion is necessary, as long as you get two supporting doctor signatures.

C. If the man's spouse can be located and she gives consent for transfusion, then it's okay.

D. Operate on the patient, but respect his disavowal of blood even if it means death.

E. If the patient desperately needs a lifesaving blood transfusion, it should be given, because his wishes are not entirely clear.

Answer: E. Some of the other choices have merit, but the best answer is E. This is because of the dire nature of the patient's condition, the critical and immediate need for blood, and most of all, the reasonable belief that the line across the wrinkled card represents a revocation of an earlier refusal of blood. Some may view D as the better option, and it is arguably the legally “safe” approach. However, a life hangs in the balance, and a doctor's first duty is to the patient.

Exceptions to Informed Consent

Under some circumstances, informed consent may be neither possible nor necessary. Statutory provisions that protect public health and safety may mandate quarantine, examination, treatment of a patient, or referral of a death to a coroner without requiring patient or family consent. The following are legitimate exceptions to the informed consent requirement:

▸ Emergencies: The guiding principle is whether delay in treatment in order to obtain consent would result in harm to the patient. The procedure need not be lifesaving, as long as the potential harm to the patient is significant. This exception is typically provided for in state statutes on informed consent, such as this one from Hawaii: “Nothing in this section shall require informed consent from a patient or a patient's guardian when emergency treatment or an emergency surgical procedure is rendered by a health care provider and the obtaining of consent is not reasonably feasible under the circumstances without adversely affecting the condition of the patient's health” (Hawaii Revised Statutes §671-3 [d]).

▸ Unanticipated conditions during surgery: This is a narrowly construed exception and comes into play when a surgeon encounters an unanticipated abnormality within the field of surgery. It is called the “extension doctrine,” and it assumes that the surgeon is using reasonable judgment. Thus, a surgeon incurred no liability for draining some ovarian cysts during the course of an appendectomy (Kennedy v. Parrott, 90 S.E.2d 754 [N.C. 1956]). But in a case where the surgeon operated on the left ear despite consent only for the right ear, the court held his conduct actionable as the situation was not a true emergency (Mohr v. Williams, 104 N.W. 12 [Minn. 1905]). The condition must be one that was unforeseen, and the patient must not have expressly refused such an intervention. Most informed consent forms now incorporate an “unanticipated condition” clause.

▸ Therapeutic privilege: If a doctor believes that the patient's emotional and physical condition could be adversely affected by full disclosure of the treatment risks, disclosure may be legally withheld. This principle is called therapeutic privilege, which was clearly enunciated in Nishi v. Hartwell, Hawaii's first case on informed consent. The plaintiff-dentist, Dr. Nishi, sought damages for below-waist paralysis following thoracic aortography. This procedure-related risk was never discussed with him, purportedly because of his serious underlying cardiac status and extreme apprehension over his condition.

In addressing the therapeutic privilege defense raised by the defendant, the Hawaii Supreme Court held that “the doctrine recognizes that the primary duty of a physician is to do what is best for his patient, and that a physician may withhold disclosure of information regarding any untoward consequences of a treatment where full disclosure will be detrimental to the patient's total care and best interest” (Nishi v. Hartwell, 473 P.2d 116 [Haw. 1970]). This doctrine has subsequently been reaffirmed (Carr v. Strode, 79 Hawaii 475 [1995]).

In the well-known case of Canterbury v. Spence, the U.S. Court of Appeals in the District of Columbia also articulated the therapeutic privilege exception to informed consent, in order to enable the doctor to withhold risk information if such disclosure would pose a serious threat of psychological detriment to the patient. However, the physician is still required to disclose any information that will not prove harmful to the patient (Canterbury v. Spence, 464 F.2d 772 [D.C. Cir. 1972]).

▸ Waiver or risks known to the patient: Some patients expressly indicate that they do not wish to be informed of the treatment procedure and associated risks. This constitutes a waiver and is recognized as a legitimate exception. Waivers should be documented in writing. The health care provider is also not obligated to disclose risks that are commonly understood, obvious, or already known to the patient.

▸ Informed consent not feasible: The U.S. government was alleged to have used investigational drugs on military personnel during the Gulf War without their consent. In Doe v. Sullivan, a federal court refused to enforce the informed consent requirement because of the impracticality of obtaining consent under the circumstances (Doe v. Sullivan, 938 F.2d 1370 [D.C. Cir. 1991]). This exception to informed consent is obviously a very narrow one.

Contact the author at [email protected].