Law & Medicine

Question: The on-call resuscitation team, consisting of a supervising medical resident and an intern, was unsuccessful in its attempt to intubate the patient. The senior resident had performed only one prior intubation, and the intern none at all. No anesthesiologist or nurse anesthetist was in-house. It was subsequently discovered that moments before the arrest, the patient had erroneously received an antibiotic to which he was known to be allergic. In a lawsuit for wrongful death, which of the following statements is best?

A. Contrary to popular belief, lawsuits against resident physicians (house staff) are rare, with fewer than 100 cases reported to the National Practitioner Data Bank.

B. There is definite liability here, with the iatrogenic incident being caused by a medical error.

C. If a lawsuit is brought after completion of training, liability then attaches to either the resident or his or her new insurance carrier.

D. The hospital is liable, as it should always have someone in-house who is skilled in this lifesaving procedure.

E. Inexperience does not necessarily mean the applicable standard of care is lowered to that of a medical trainee.

Answer: E. Choice A is incorrect. Lawsuits against house staff are not rare, and resident physicians are regularly joined as codefendants with their supervisors who are typically medical school faculty or community practitioners admitting patients to “team care.” By the end of 2006, the National Practitioner Data Bank had catalogued 1,832 residents as having had at least one adverse malpractice claim (National Practitioner Data Bank: 2006 Annual Report. Available at www.npdb-hipdb.com. Accessed May 17, 2010). Choice B is incorrect because the legal cause is unproven, and the facts are insufficient to impute the cardiac arrest to medical error.

On the issue of insurance coverage, the Accreditation Council for Graduate Medical Education requires graduate medical education programs to insure their trainees for “claims reported or filed after the completion of graduate medical education if the alleged acts or omissions of the residents are within the scope of the education program.” Thus, residents are covered for acts or omissions during their training period, irrespective of when the claim is brought (so-called “tail coverage”). However, should a resident moonlight or be employed outside of the training program, the resident should either purchase separate professional liability insurance or have the employer provide such insurance, including tail coverage (AJR Am. J. Roentgenol. 1998;171:565-7).

Choice D is also incorrect. Having an in-house anesthesiologist or nurse-anesthetist may represent good hospital policy, but it is not a community or legal standard at this time.

The best choice is E. Although still acquiring the skills toward certification, trainees remain individually responsible for their actions. But should the law demand the same standard of care as it would a fully qualified attending physician? The courts are split on this question (JAMA 2004;292:1051-6). Some have favored a dual standard of conduct, with trainees being held to a lower standard of care. This was articulated in Rush v. Akron General Hospital, which involved a patient who had fallen through a glass door. The patient suffered several lacerations to his shoulder, which an intern treated. However, when two remaining pieces of glass were later discovered in the area of injury, the patient sued the intern for negligence. The court dismissed the claim, finding that the intern had practiced with the skill and care of his peers with similar training: “It would be unreasonable to exact from an intern, doing emergency work in a hospital, that high degree of skill which is impliedly possessed by a physician and surgeon in the general practice of his profession, with an extensive and constant practice in hospitals and the community” (Rush v. Akron General Hospital, 171 N.E.2d 378 [Ohio Ct. App. 1987]).

However, not all courts have embraced the dual standard of review. In a recent case out of New Jersey, the Superior Court held that licensed residents should be judged by a standard applicable to a general practitioner, as any reduction in the standard of care would set a “problematic precedent” (Clark v. University Hospital, 914 A.2d 838 [N.J. Super. 2006]). In this case, the residents allegedly failed to reinsert a nasogastric tube, which caused the patient to aspirate.

Should the applicable standard for a resident physician be even higher? In Pratt v. Stein, a second-year resident was judged by a specialist standard after he had allegedly administered a toxic dose of neomycin to a postoperative patient, which resulted in deafness. Although the lower court had ruled that the resident should be held to the standard of an “ordinary physician,” the Pennsylvania appellate court disagreed, reasoning that “a resident should be held to the standard of a specialist when the resident is acting within his field of specialty. In our estimation, this is a sound conclusion. A resident is already a physician who has chosen to specialize, and thus possesses a higher degree of knowledge and skill in the chosen specialty than does the nonspecialist” (Pratt v. Stein, 444 A.2d 674 [Pa. Super. 1980]).

However, a subsequent decision from the same jurisdiction suggests a retreat from this unrealistic standard. An orthopedic resident allegedly applied a cast with insufficient padding to the broken wrist of a patient. The plaintiff claimed this led to soft tissue infection with Staphylococcus aureus, with complicating septicemia, staphylococcal endocarditis, and eventual death. The court held that the resident’s standard of care should be “higher than that for general practitioners but less than that for fully trained orthopedic specialists. ... To require a resident to meet the same standard of care as a fully trained specialist would be unrealistic. A resident may have had only days or weeks of training in the specialized residency program; a specialist, on the other hand, will have completed the residency program and may also have had years of experience in the specialized field. If we were to require the resident to exercise the same degree of skill and training as the specialist, we would, in effect, be requiring the resident to do the impossible” (Jistarri v. Nappi, 549 A.2d 210 [Pa. Super. 1988]).

Dr. Tan writes the “Law & Medicine” column, which regularly appears in Internal Medicine News, an Elsevier publication. He is professor of medicine and former adjunct professor of law at the University of Hawaii, Honolulu. 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: The on-call resuscitation team, consisting of a supervising medical resident and an intern, was unsuccessful in its attempt to intubate the patient. The senior resident had performed only one prior intubation, and the intern none at all. No anesthesiologist or nurse anesthetist was in-house. It was subsequently discovered that moments before the arrest, the patient had erroneously received an antibiotic to which he was known to be allergic. In a lawsuit for wrongful death, which of the following statements is best?

A. Contrary to popular belief, lawsuits against resident physicians (house staff) are rare, with fewer than 100 cases reported to the National Practitioner Data Bank.

B. There is definite liability here, with the iatrogenic incident being caused by a medical error.

C. If a lawsuit is brought after completion of training, liability then attaches to either the resident or his or her new insurance carrier.

D. The hospital is liable, as it should always have someone in-house who is skilled in this lifesaving procedure.

E. Inexperience does not necessarily mean the applicable standard of care is lowered to that of a medical trainee.

Answer: E. Choice A is incorrect. Lawsuits against house staff are not rare, and resident physicians are regularly joined as codefendants with their supervisors who are typically medical school faculty or community practitioners admitting patients to “team care.” By the end of 2006, the National Practitioner Data Bank had catalogued 1,832 residents as having had at least one adverse malpractice claim (National Practitioner Data Bank: 2006 Annual Report. Available at www.npdb-hipdb.com. Accessed May 17, 2010). Choice B is incorrect because the legal cause is unproven, and the facts are insufficient to impute the cardiac arrest to medical error.

On the issue of insurance coverage, the Accreditation Council for Graduate Medical Education requires graduate medical education programs to insure their trainees for “claims reported or filed after the completion of graduate medical education if the alleged acts or omissions of the residents are within the scope of the education program.” Thus, residents are covered for acts or omissions during their training period, irrespective of when the claim is brought (so-called “tail coverage”). However, should a resident moonlight or be employed outside of the training program, the resident should either purchase separate professional liability insurance or have the employer provide such insurance, including tail coverage (AJR Am. J. Roentgenol. 1998;171:565-7).

Choice D is also incorrect. Having an in-house anesthesiologist or nurse-anesthetist may represent good hospital policy, but it is not a community or legal standard at this time.

The best choice is E. Although still acquiring the skills toward certification, trainees remain individually responsible for their actions. But should the law demand the same standard of care as it would a fully qualified attending physician? The courts are split on this question (JAMA 2004;292:1051-6). Some have favored a dual standard of conduct, with trainees being held to a lower standard of care. This was articulated in Rush v. Akron General Hospital, which involved a patient who had fallen through a glass door. The patient suffered several lacerations to his shoulder, which an intern treated. However, when two remaining pieces of glass were later discovered in the area of injury, the patient sued the intern for negligence. The court dismissed the claim, finding that the intern had practiced with the skill and care of his peers with similar training: “It would be unreasonable to exact from an intern, doing emergency work in a hospital, that high degree of skill which is impliedly possessed by a physician and surgeon in the general practice of his profession, with an extensive and constant practice in hospitals and the community” (Rush v. Akron General Hospital, 171 N.E.2d 378 [Ohio Ct. App. 1987]).

However, not all courts have embraced the dual standard of review. In a recent case out of New Jersey, the Superior Court held that licensed residents should be judged by a standard applicable to a general practitioner, as any reduction in the standard of care would set a “problematic precedent” (Clark v. University Hospital, 914 A.2d 838 [N.J. Super. 2006]). In this case, the residents allegedly failed to reinsert a nasogastric tube, which caused the patient to aspirate.

Should the applicable standard for a resident physician be even higher? In Pratt v. Stein, a second-year resident was judged by a specialist standard after he had allegedly administered a toxic dose of neomycin to a postoperative patient, which resulted in deafness. Although the lower court had ruled that the resident should be held to the standard of an “ordinary physician,” the Pennsylvania appellate court disagreed, reasoning that “a resident should be held to the standard of a specialist when the resident is acting within his field of specialty. In our estimation, this is a sound conclusion. A resident is already a physician who has chosen to specialize, and thus possesses a higher degree of knowledge and skill in the chosen specialty than does the nonspecialist” (Pratt v. Stein, 444 A.2d 674 [Pa. Super. 1980]).

However, a subsequent decision from the same jurisdiction suggests a retreat from this unrealistic standard. An orthopedic resident allegedly applied a cast with insufficient padding to the broken wrist of a patient. The plaintiff claimed this led to soft tissue infection with Staphylococcus aureus, with complicating septicemia, staphylococcal endocarditis, and eventual death. The court held that the resident’s standard of care should be “higher than that for general practitioners but less than that for fully trained orthopedic specialists. ... To require a resident to meet the same standard of care as a fully trained specialist would be unrealistic. A resident may have had only days or weeks of training in the specialized residency program; a specialist, on the other hand, will have completed the residency program and may also have had years of experience in the specialized field. If we were to require the resident to exercise the same degree of skill and training as the specialist, we would, in effect, be requiring the resident to do the impossible” (Jistarri v. Nappi, 549 A.2d 210 [Pa. Super. 1988]).

Dr. Tan writes the “Law & Medicine” column, which regularly appears in Internal Medicine News, an Elsevier publication. He is professor of medicine and former adjunct professor of law at the University of Hawaii, Honolulu. 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: The on-call resuscitation team, consisting of a supervising medical resident and an intern, was unsuccessful in its attempt to intubate the patient. The senior resident had performed only one prior intubation, and the intern none at all. No anesthesiologist or nurse anesthetist was in-house. It was subsequently discovered that moments before the arrest, the patient had erroneously received an antibiotic to which he was known to be allergic. In a lawsuit for wrongful death, which of the following statements is best?

A. Contrary to popular belief, lawsuits against resident physicians (house staff) are rare, with fewer than 100 cases reported to the National Practitioner Data Bank.

B. There is definite liability here, with the iatrogenic incident being caused by a medical error.

C. If a lawsuit is brought after completion of training, liability then attaches to either the resident or his or her new insurance carrier.

D. The hospital is liable, as it should always have someone in-house who is skilled in this lifesaving procedure.

E. Inexperience does not necessarily mean the applicable standard of care is lowered to that of a medical trainee.

Answer: E. Choice A is incorrect. Lawsuits against house staff are not rare, and resident physicians are regularly joined as codefendants with their supervisors who are typically medical school faculty or community practitioners admitting patients to “team care.” By the end of 2006, the National Practitioner Data Bank had catalogued 1,832 residents as having had at least one adverse malpractice claim (National Practitioner Data Bank: 2006 Annual Report. Available at www.npdb-hipdb.com. Accessed May 17, 2010). Choice B is incorrect because the legal cause is unproven, and the facts are insufficient to impute the cardiac arrest to medical error.

On the issue of insurance coverage, the Accreditation Council for Graduate Medical Education requires graduate medical education programs to insure their trainees for “claims reported or filed after the completion of graduate medical education if the alleged acts or omissions of the residents are within the scope of the education program.” Thus, residents are covered for acts or omissions during their training period, irrespective of when the claim is brought (so-called “tail coverage”). However, should a resident moonlight or be employed outside of the training program, the resident should either purchase separate professional liability insurance or have the employer provide such insurance, including tail coverage (AJR Am. J. Roentgenol. 1998;171:565-7).

Choice D is also incorrect. Having an in-house anesthesiologist or nurse-anesthetist may represent good hospital policy, but it is not a community or legal standard at this time.

The best choice is E. Although still acquiring the skills toward certification, trainees remain individually responsible for their actions. But should the law demand the same standard of care as it would a fully qualified attending physician? The courts are split on this question (JAMA 2004;292:1051-6). Some have favored a dual standard of conduct, with trainees being held to a lower standard of care. This was articulated in Rush v. Akron General Hospital, which involved a patient who had fallen through a glass door. The patient suffered several lacerations to his shoulder, which an intern treated. However, when two remaining pieces of glass were later discovered in the area of injury, the patient sued the intern for negligence. The court dismissed the claim, finding that the intern had practiced with the skill and care of his peers with similar training: “It would be unreasonable to exact from an intern, doing emergency work in a hospital, that high degree of skill which is impliedly possessed by a physician and surgeon in the general practice of his profession, with an extensive and constant practice in hospitals and the community” (Rush v. Akron General Hospital, 171 N.E.2d 378 [Ohio Ct. App. 1987]).

However, not all courts have embraced the dual standard of review. In a recent case out of New Jersey, the Superior Court held that licensed residents should be judged by a standard applicable to a general practitioner, as any reduction in the standard of care would set a “problematic precedent” (Clark v. University Hospital, 914 A.2d 838 [N.J. Super. 2006]). In this case, the residents allegedly failed to reinsert a nasogastric tube, which caused the patient to aspirate.

Should the applicable standard for a resident physician be even higher? In Pratt v. Stein, a second-year resident was judged by a specialist standard after he had allegedly administered a toxic dose of neomycin to a postoperative patient, which resulted in deafness. Although the lower court had ruled that the resident should be held to the standard of an “ordinary physician,” the Pennsylvania appellate court disagreed, reasoning that “a resident should be held to the standard of a specialist when the resident is acting within his field of specialty. In our estimation, this is a sound conclusion. A resident is already a physician who has chosen to specialize, and thus possesses a higher degree of knowledge and skill in the chosen specialty than does the nonspecialist” (Pratt v. Stein, 444 A.2d 674 [Pa. Super. 1980]).

However, a subsequent decision from the same jurisdiction suggests a retreat from this unrealistic standard. An orthopedic resident allegedly applied a cast with insufficient padding to the broken wrist of a patient. The plaintiff claimed this led to soft tissue infection with Staphylococcus aureus, with complicating septicemia, staphylococcal endocarditis, and eventual death. The court held that the resident’s standard of care should be “higher than that for general practitioners but less than that for fully trained orthopedic specialists. ... To require a resident to meet the same standard of care as a fully trained specialist would be unrealistic. A resident may have had only days or weeks of training in the specialized residency program; a specialist, on the other hand, will have completed the residency program and may also have had years of experience in the specialized field. If we were to require the resident to exercise the same degree of skill and training as the specialist, we would, in effect, be requiring the resident to do the impossible” (Jistarri v. Nappi, 549 A.2d 210 [Pa. Super. 1988]).

Dr. Tan writes the “Law & Medicine” column, which regularly appears in Internal Medicine News, an Elsevier publication. He is professor of medicine and former adjunct professor of law at the University of Hawaii, Honolulu. 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).

Misdiagnosis accounts for more malpractice claims than medication errors—indeed, for more lawsuits than any other medical misstep.^1-5 Yet until recently, diagnostic errors garnered little attention from patient safety advocates.

That’s no longer the case. In 2007, the Agency for Healthcare Research and Quality (AHRQ) identified diagnostic errors (a catchall category encompassing delayed, incorrect, and missed diagnoses) as a problem that warranted closer study.⁶ The inaugural conference on Diagnostic Error in Medicine, cosponsored by AHRQ and the American Medical Informatics Association, took place in 2008. The third annual Diagnostic Error in Medicine conference will be held in Canada in October, reflecting the expanding focus on uncovering root causes of diagnostic error and developing preventive measures aimed at safeguarding patients and avoiding lawsuits.

Because diagnostic errors have long been underemphasized and understudied—and remain difficult to track—it is hard to know just how often they occur. Estimates of their frequency fluctuate widely from 1 study to another, but are generally in the range of 10% to 15%.⁷ Fatal illnesses appear to be misdiagnosed more frequently than less severe conditions: A review of more than 50 autopsy studies found that, on average, about 1 in 4 (23.5%) major diagnoses were missed.¹

Whatever the numbers, diagnostic missteps are clearly common enough to be on patients’ radar screen. In a recent survey of US adults, 55% of respondents cited misdiagnosis as their greatest concern when they see a doctor in an outpatient setting.⁸ In a Harris Poll commissioned by the National Patient Safety Foundation⁹ several years earlier, 1 in 6 adults reported having had a condition that was misdiagnosed.

Evidence suggests that while years of experience and strong diagnostic skills help prevent diagnostic errors, they do not afford full protection against the cascade of events that can result in a serious diagnostic error. In fact, overconfidence may contribute to the problem.^10,11

The take-away message: No physician is immune to misdiagnosis or to a subsequent lawsuit. There are, however, steps you can take to safeguard your patients and yourself, but first you need to know where the pitfalls lie.

Misdiagnosis in primary care: What malpractice claims reveal

Diagnostic errors that result in malpractice claims undergo extensive legal review. Thus, they provide an excellent opportunity for analysis, as the authors of a study of 181 “closed,” or completed, claims from 4 malpractice insurers found.¹² The errors all occurred in ambulatory settings, with primary care physicians most frequently involved.

Nearly 6 in 10 of the lawsuits were for missed or delayed cancer diagnoses, followed by misdiagnosis of infection, fracture, and myocardial infarction. Overall, 24% of the cases involved breast cancer. No other disorder came close.

The most common problems, or “breakdowns,” in the diagnostic process were:

• failure to order the appropriate diagnostic test (which occurred in 55% of the cases)
• failure to create a proper follow-up plan (45%)
• failure to obtain a thorough medical history or to perform a thorough physical examination (42%).¹²

Notably, however, diagnostic errors rarely had a single cause. A median of 3 breakdowns per case was identified, and more than 4 in 10 cases involved more than 1 clinician.

Additional sources of breakdowns ran the gamut from patient factors (eg, non-compliance, atypical presentation, or a delay in seeking care) to system errors (eg, delay in seeing a test result, referral delay, or a mishandled handoff). Rarely was misdiagnosis attributed to a physician’s cognitive error alone. Most diagnostic errors, the authors reported, involved “a potent combination of individual and system factors.” ¹²

Is it cancer? Failure to test or follow up

Cancer may not be the most frequently misdiagnosed condition, but because of the dire consequences often associated with a delay in detection, cancer is No. 1 in frequency of diagnostic error lawsuits¹³—with breast cancer typically at or near the top of the list. Evidence suggests that clinician preconception plays a role.

Most women who develop breast cancer are over the age of 50, but plaintiffs in breast cancer suits tend to be younger.^14,15 This may be partly because of overreliance on age as a predictive factor, causing some physicians to offer a younger woman what may be unwarranted reassurance that a breast lump is due to fibrocystic tissue rather than malignancy (CASE 1).

Ordering a test is not enough. Even when physicians order the correct test, follow-up may fall short. In the closed claims study, physicians incorrectly interpreted test results in 37% of the cases.¹² Other evidence suggests that about a third of women with abnormal mammograms do not receive follow-up care that’s consistent with established guidelines.¹⁶

What’s more, physicians sometimes overlook the fact that diagnostic tests are rarely 100% accurate. Mammography misses approximately 20% of breast cancer cases,¹⁷ for example, and a woman with a palpable lump should be closely watched, not dismissed on the basis of a negative mammogram result.^1,15

What happens to test results? In other cases, the problem is not that a test result doesn’t match the clinical findings, but that the result is not reviewed by the physician or conveyed to the patient in a timely manner. Indeed, the title of a published report of a survey of internists starts with the quote, “I wish I had seen this test result earlier!” ¹⁸ Of the 262 internists surveyed, only 41% expressed satisfaction with their method of handling test results.

What would satisfy these physicians? Respondents said what they wanted in a test result management system were tools that would help them generate letters to patients detailing the results, prioritize their workflow, and track orders for tests to completion.

By the way, doc… Harried physician, hurried response
What physician isn’t familiar with the patient who comes in for care of 1, or several, chronic conditions, but mentions another problem as he or she is getting ready to walk out the door (CASE 2)? If that problem appears to be a transient and treatable condition, the temptation is to make a hasty diagnosis and write a prescription, without the usual degree of history taking, patient examination, contemplation, or documentation. Doing so, however, poses considerable risk, to both patient and physician.

If the condition or symptom is serious enough to address in the course of the visit, it requires the same level of attention as any other presenting problem. When time constraints prevent you from addressing the complaint with the proper diligence, it would be appropriate—assuming the symptom in question is nonurgent—to ask the patient to make another appointment. But be sure to document that you did so.

How sure are you of the diagnosis?
It’s human nature to see things in terms of what you’re familiar with. A doctor who has been treating a patient with migraine headaches for years, for example, is apt to assume that “the worst migraine I’ve ever had” is more of the same (CASE 3). Similarly, a clinician who has identified a disorder that matches several of a patient’s symptoms may dismiss or overlook signs and symptoms that do not fit that explanation or diagnosis. Safety advocates refer to this phenomenon as “premature closure.” It may also be a function of overconfidence.

One example of physician overconfidence comes from a study in which experienced dermatologists were asked to examine lesions and diagnose melanoma. Although the specialists confidently diagnosed melanoma in more than 50% of the test cases, 30% of their decisions were later found to be incorrect.¹⁹

Build a no-fault, fail-safe system

The purpose of analyzing diagnostic errors is not to assign blame or point a finger at physicians, but rather to find and fix flaws in the medical system.²⁰ That approach has been used by patient safety advocates to address other types of errors following the publication of the Institute of Medicine’s landmark report on medical error 11 years ago.²¹

Since then, many physician leaders have looked to the airline industry—a field in which the consequences for not strictly adhering to a fail-safe system are likely to be fatal. That reality has led to the development of vital checklists, forcing functions (in which the user is prevented from moving to the next step until the current step is completed), and computerized reminders in an attempt to eliminate, to the extent possible, the chance of human error.

The same principle can be applied to misdiagnosis. Recommended steps—ordering diagnostic tests or referring to a specialist, for example—should be put into motion whenever a set of predetermined parameters are met, rather than relying on physician memory or choice.²⁰

Similarly, checklists should specify questions to ask or criteria to be met under specified circumstances to prevent physicians from prematurely settling on a (possibly incorrect) diagnosis. To avoid a rush to judgment, some patient safety advocates¹ stress the importance of assessing the urgency of a patient’s condition, rather than trying to arrive at a definitive diagnosis the first time he or she presents with a perplexing set of signs and symptoms. Other recommendations follow:

Mandate a second look. Develop and adhere to a set of criteria to determine when a referral to a specialist or a physician consultation is needed, rather than deciding on a case-by-case basis.

Plug the holes in your follow-up system. Develop a fail-safe system for reviewing diagnostic tests or laboratory findings and reporting them to patients without delay. This can be done with an electronic health record (EHR) system or by developing and adhering to parameters requiring, for instance, that no test result get filed until there are 2 signatures on it—that of the physician who ordered the test, indicating that he or she has seen it, and that of a staff member, indicating that the patient has been notified of the results. As an additional back-up, tell patients undergoing tests when to expect to get results, and stress the importance of calling the office if they do not receive such notification within a specified time frame.

Partner with patients. Engage patients in the pursuit of a definitive diagnosis. Discuss your preliminary findings, describe your treatment decision and what you expect to occur, and urge patients to contact you with evidence that confirms or refutes that expectation. Elicit additional feedback at each visit until either the symptoms have fully resolved or you have gathered enough information to arrive at a definitive diagnosis.

Develop “don’t-miss” checklists. One list should cover diagnostic red flags to be considered anytime you see a symptomatic patient to ensure that you don’t overlook important signs and symptoms, and include findings that warrant hospital admission, specified diagnostic tests, and immediate referral. (A patient who comes in with a “common pink eye,” but has consensual photophobia, is at risk for iritis and needs an urgent ophthalmology evaluation, for instance.) Another list you should develop is a “must-do” list for well visits, featuring clinical scenarios to address and screening tests to remember, such as an eye exam for patients with diabetes.

Question your initial diagnosis. Beware of “premature closure”—the tendency to stop looking for other signs and symptoms once you find a presumptive diagnosis—and “diagnostic inertia”—evaluating new signs and symptoms almost exclusively on the basis of past medical history. If aspects of a patient presentation do not fit your presumed diagnosis, use a decision support system, if available, to review other possibilities.

Head off hand-off errors. Develop a problem list for each patient to reduce the likelihood that crucial information will be overlooked when more than 1 clinician is involved in his or her care. Include chronic and acute conditions, unexplained signs and symptoms, medications, and allergies. Create a fail-safe system for other potential hand-off problems, as well—requiring confirmation that the findings in a preliminary radiology report are the same as those in the final report before you take action based on the preliminary report, for example, and ensuring that you receive prompt notification whenever that is not the case.

EHRs and decision support: Isn’t it time?
In 2009, 44% of office-based physicians had EHRs, according to a Centers for Disease Control and Prevention preliminary report.²² Federal funding to promote the adoption of EHRs is expected to accelerate their use. Among the benefits of EHRs are clinical reminders, system alerts, and documentation tools that can help reduce the risk of diagnostic missteps and avert misdiagnosis lawsuits.

The Department of Veterans Affairs uses a notification system called View Alert, for example, that tracks acknowledgement of abnormal radiology test results and flags those that remain unacknowledged. ²³ EHR systems can also be programmed to issue automated appointment reminders that make it easier to track patients who do not show up for critical follow-up visits.

Diagnostic decision support software adds another critical element. When a clinician inputs a set of symptoms and patient-specific data, such systems produce lists of possible diagnoses, often divided by bodily system.

While many safety advocates believe that the use of such systems will increase the likelihood of accurate diagnosis, critics point out that the software is only as good as the clinician using it. One concern is that computerized systems typically come with a “macro” ability—that is, the ability to enter large amounts of information with the click of a key. This raises the possibility that an overload of patient data, some of which may be incorrect, will be added to the medical record—or that the system will generate so many possibilities that clinicians will cease to pay attention. Both can lead to inferences of inattention or raise doubts about a physician’s credibility in a legal setting.

Electronic prescribing software systems that flag potential drug interactions are a case in point. Forty-five percent of family physicians responding to a Journal of Family Practice Instant Poll about their use of such systems reported that they override them frequently. The problem, according to 1 respondent: The system gives “so many red flags that I routinely ignore them all—like the little boy who cried wolf.”

CORRESPONDENCE John Davenport, MD, JD, 13 Redonda, Irvine, CA 92620; [email protected]

Misdiagnosis accounts for more malpractice claims than medication errors—indeed, for more lawsuits than any other medical misstep.^1-5 Yet until recently, diagnostic errors garnered little attention from patient safety advocates.

That’s no longer the case. In 2007, the Agency for Healthcare Research and Quality (AHRQ) identified diagnostic errors (a catchall category encompassing delayed, incorrect, and missed diagnoses) as a problem that warranted closer study.⁶ The inaugural conference on Diagnostic Error in Medicine, cosponsored by AHRQ and the American Medical Informatics Association, took place in 2008. The third annual Diagnostic Error in Medicine conference will be held in Canada in October, reflecting the expanding focus on uncovering root causes of diagnostic error and developing preventive measures aimed at safeguarding patients and avoiding lawsuits.

Because diagnostic errors have long been underemphasized and understudied—and remain difficult to track—it is hard to know just how often they occur. Estimates of their frequency fluctuate widely from 1 study to another, but are generally in the range of 10% to 15%.⁷ Fatal illnesses appear to be misdiagnosed more frequently than less severe conditions: A review of more than 50 autopsy studies found that, on average, about 1 in 4 (23.5%) major diagnoses were missed.¹

Whatever the numbers, diagnostic missteps are clearly common enough to be on patients’ radar screen. In a recent survey of US adults, 55% of respondents cited misdiagnosis as their greatest concern when they see a doctor in an outpatient setting.⁸ In a Harris Poll commissioned by the National Patient Safety Foundation⁹ several years earlier, 1 in 6 adults reported having had a condition that was misdiagnosed.

Evidence suggests that while years of experience and strong diagnostic skills help prevent diagnostic errors, they do not afford full protection against the cascade of events that can result in a serious diagnostic error. In fact, overconfidence may contribute to the problem.^10,11

The take-away message: No physician is immune to misdiagnosis or to a subsequent lawsuit. There are, however, steps you can take to safeguard your patients and yourself, but first you need to know where the pitfalls lie.

Misdiagnosis in primary care: What malpractice claims reveal

Diagnostic errors that result in malpractice claims undergo extensive legal review. Thus, they provide an excellent opportunity for analysis, as the authors of a study of 181 “closed,” or completed, claims from 4 malpractice insurers found.¹² The errors all occurred in ambulatory settings, with primary care physicians most frequently involved.

Nearly 6 in 10 of the lawsuits were for missed or delayed cancer diagnoses, followed by misdiagnosis of infection, fracture, and myocardial infarction. Overall, 24% of the cases involved breast cancer. No other disorder came close.

The most common problems, or “breakdowns,” in the diagnostic process were:

• failure to order the appropriate diagnostic test (which occurred in 55% of the cases)
• failure to create a proper follow-up plan (45%)
• failure to obtain a thorough medical history or to perform a thorough physical examination (42%).¹²

Notably, however, diagnostic errors rarely had a single cause. A median of 3 breakdowns per case was identified, and more than 4 in 10 cases involved more than 1 clinician.

Additional sources of breakdowns ran the gamut from patient factors (eg, non-compliance, atypical presentation, or a delay in seeking care) to system errors (eg, delay in seeing a test result, referral delay, or a mishandled handoff). Rarely was misdiagnosis attributed to a physician’s cognitive error alone. Most diagnostic errors, the authors reported, involved “a potent combination of individual and system factors.” ¹²

Is it cancer? Failure to test or follow up

Cancer may not be the most frequently misdiagnosed condition, but because of the dire consequences often associated with a delay in detection, cancer is No. 1 in frequency of diagnostic error lawsuits¹³—with breast cancer typically at or near the top of the list. Evidence suggests that clinician preconception plays a role.

Most women who develop breast cancer are over the age of 50, but plaintiffs in breast cancer suits tend to be younger.^14,15 This may be partly because of overreliance on age as a predictive factor, causing some physicians to offer a younger woman what may be unwarranted reassurance that a breast lump is due to fibrocystic tissue rather than malignancy (CASE 1).

Ordering a test is not enough. Even when physicians order the correct test, follow-up may fall short. In the closed claims study, physicians incorrectly interpreted test results in 37% of the cases.¹² Other evidence suggests that about a third of women with abnormal mammograms do not receive follow-up care that’s consistent with established guidelines.¹⁶

What’s more, physicians sometimes overlook the fact that diagnostic tests are rarely 100% accurate. Mammography misses approximately 20% of breast cancer cases,¹⁷ for example, and a woman with a palpable lump should be closely watched, not dismissed on the basis of a negative mammogram result.^1,15

What happens to test results? In other cases, the problem is not that a test result doesn’t match the clinical findings, but that the result is not reviewed by the physician or conveyed to the patient in a timely manner. Indeed, the title of a published report of a survey of internists starts with the quote, “I wish I had seen this test result earlier!” ¹⁸ Of the 262 internists surveyed, only 41% expressed satisfaction with their method of handling test results.

What would satisfy these physicians? Respondents said what they wanted in a test result management system were tools that would help them generate letters to patients detailing the results, prioritize their workflow, and track orders for tests to completion.

By the way, doc… Harried physician, hurried response
What physician isn’t familiar with the patient who comes in for care of 1, or several, chronic conditions, but mentions another problem as he or she is getting ready to walk out the door (CASE 2)? If that problem appears to be a transient and treatable condition, the temptation is to make a hasty diagnosis and write a prescription, without the usual degree of history taking, patient examination, contemplation, or documentation. Doing so, however, poses considerable risk, to both patient and physician.

If the condition or symptom is serious enough to address in the course of the visit, it requires the same level of attention as any other presenting problem. When time constraints prevent you from addressing the complaint with the proper diligence, it would be appropriate—assuming the symptom in question is nonurgent—to ask the patient to make another appointment. But be sure to document that you did so.

How sure are you of the diagnosis?
It’s human nature to see things in terms of what you’re familiar with. A doctor who has been treating a patient with migraine headaches for years, for example, is apt to assume that “the worst migraine I’ve ever had” is more of the same (CASE 3). Similarly, a clinician who has identified a disorder that matches several of a patient’s symptoms may dismiss or overlook signs and symptoms that do not fit that explanation or diagnosis. Safety advocates refer to this phenomenon as “premature closure.” It may also be a function of overconfidence.

One example of physician overconfidence comes from a study in which experienced dermatologists were asked to examine lesions and diagnose melanoma. Although the specialists confidently diagnosed melanoma in more than 50% of the test cases, 30% of their decisions were later found to be incorrect.¹⁹

Build a no-fault, fail-safe system

The purpose of analyzing diagnostic errors is not to assign blame or point a finger at physicians, but rather to find and fix flaws in the medical system.²⁰ That approach has been used by patient safety advocates to address other types of errors following the publication of the Institute of Medicine’s landmark report on medical error 11 years ago.²¹

Since then, many physician leaders have looked to the airline industry—a field in which the consequences for not strictly adhering to a fail-safe system are likely to be fatal. That reality has led to the development of vital checklists, forcing functions (in which the user is prevented from moving to the next step until the current step is completed), and computerized reminders in an attempt to eliminate, to the extent possible, the chance of human error.

The same principle can be applied to misdiagnosis. Recommended steps—ordering diagnostic tests or referring to a specialist, for example—should be put into motion whenever a set of predetermined parameters are met, rather than relying on physician memory or choice.²⁰

Similarly, checklists should specify questions to ask or criteria to be met under specified circumstances to prevent physicians from prematurely settling on a (possibly incorrect) diagnosis. To avoid a rush to judgment, some patient safety advocates¹ stress the importance of assessing the urgency of a patient’s condition, rather than trying to arrive at a definitive diagnosis the first time he or she presents with a perplexing set of signs and symptoms. Other recommendations follow:

Mandate a second look. Develop and adhere to a set of criteria to determine when a referral to a specialist or a physician consultation is needed, rather than deciding on a case-by-case basis.

Plug the holes in your follow-up system. Develop a fail-safe system for reviewing diagnostic tests or laboratory findings and reporting them to patients without delay. This can be done with an electronic health record (EHR) system or by developing and adhering to parameters requiring, for instance, that no test result get filed until there are 2 signatures on it—that of the physician who ordered the test, indicating that he or she has seen it, and that of a staff member, indicating that the patient has been notified of the results. As an additional back-up, tell patients undergoing tests when to expect to get results, and stress the importance of calling the office if they do not receive such notification within a specified time frame.

Partner with patients. Engage patients in the pursuit of a definitive diagnosis. Discuss your preliminary findings, describe your treatment decision and what you expect to occur, and urge patients to contact you with evidence that confirms or refutes that expectation. Elicit additional feedback at each visit until either the symptoms have fully resolved or you have gathered enough information to arrive at a definitive diagnosis.

Develop “don’t-miss” checklists. One list should cover diagnostic red flags to be considered anytime you see a symptomatic patient to ensure that you don’t overlook important signs and symptoms, and include findings that warrant hospital admission, specified diagnostic tests, and immediate referral. (A patient who comes in with a “common pink eye,” but has consensual photophobia, is at risk for iritis and needs an urgent ophthalmology evaluation, for instance.) Another list you should develop is a “must-do” list for well visits, featuring clinical scenarios to address and screening tests to remember, such as an eye exam for patients with diabetes.

Question your initial diagnosis. Beware of “premature closure”—the tendency to stop looking for other signs and symptoms once you find a presumptive diagnosis—and “diagnostic inertia”—evaluating new signs and symptoms almost exclusively on the basis of past medical history. If aspects of a patient presentation do not fit your presumed diagnosis, use a decision support system, if available, to review other possibilities.

Head off hand-off errors. Develop a problem list for each patient to reduce the likelihood that crucial information will be overlooked when more than 1 clinician is involved in his or her care. Include chronic and acute conditions, unexplained signs and symptoms, medications, and allergies. Create a fail-safe system for other potential hand-off problems, as well—requiring confirmation that the findings in a preliminary radiology report are the same as those in the final report before you take action based on the preliminary report, for example, and ensuring that you receive prompt notification whenever that is not the case.

EHRs and decision support: Isn’t it time?
In 2009, 44% of office-based physicians had EHRs, according to a Centers for Disease Control and Prevention preliminary report.²² Federal funding to promote the adoption of EHRs is expected to accelerate their use. Among the benefits of EHRs are clinical reminders, system alerts, and documentation tools that can help reduce the risk of diagnostic missteps and avert misdiagnosis lawsuits.

The Department of Veterans Affairs uses a notification system called View Alert, for example, that tracks acknowledgement of abnormal radiology test results and flags those that remain unacknowledged. ²³ EHR systems can also be programmed to issue automated appointment reminders that make it easier to track patients who do not show up for critical follow-up visits.

Diagnostic decision support software adds another critical element. When a clinician inputs a set of symptoms and patient-specific data, such systems produce lists of possible diagnoses, often divided by bodily system.

While many safety advocates believe that the use of such systems will increase the likelihood of accurate diagnosis, critics point out that the software is only as good as the clinician using it. One concern is that computerized systems typically come with a “macro” ability—that is, the ability to enter large amounts of information with the click of a key. This raises the possibility that an overload of patient data, some of which may be incorrect, will be added to the medical record—or that the system will generate so many possibilities that clinicians will cease to pay attention. Both can lead to inferences of inattention or raise doubts about a physician’s credibility in a legal setting.

Electronic prescribing software systems that flag potential drug interactions are a case in point. Forty-five percent of family physicians responding to a Journal of Family Practice Instant Poll about their use of such systems reported that they override them frequently. The problem, according to 1 respondent: The system gives “so many red flags that I routinely ignore them all—like the little boy who cried wolf.”

CORRESPONDENCE John Davenport, MD, JD, 13 Redonda, Irvine, CA 92620; [email protected]

Misdiagnosis accounts for more malpractice claims than medication errors—indeed, for more lawsuits than any other medical misstep.^1-5 Yet until recently, diagnostic errors garnered little attention from patient safety advocates.

That’s no longer the case. In 2007, the Agency for Healthcare Research and Quality (AHRQ) identified diagnostic errors (a catchall category encompassing delayed, incorrect, and missed diagnoses) as a problem that warranted closer study.⁶ The inaugural conference on Diagnostic Error in Medicine, cosponsored by AHRQ and the American Medical Informatics Association, took place in 2008. The third annual Diagnostic Error in Medicine conference will be held in Canada in October, reflecting the expanding focus on uncovering root causes of diagnostic error and developing preventive measures aimed at safeguarding patients and avoiding lawsuits.

Because diagnostic errors have long been underemphasized and understudied—and remain difficult to track—it is hard to know just how often they occur. Estimates of their frequency fluctuate widely from 1 study to another, but are generally in the range of 10% to 15%.⁷ Fatal illnesses appear to be misdiagnosed more frequently than less severe conditions: A review of more than 50 autopsy studies found that, on average, about 1 in 4 (23.5%) major diagnoses were missed.¹

Whatever the numbers, diagnostic missteps are clearly common enough to be on patients’ radar screen. In a recent survey of US adults, 55% of respondents cited misdiagnosis as their greatest concern when they see a doctor in an outpatient setting.⁸ In a Harris Poll commissioned by the National Patient Safety Foundation⁹ several years earlier, 1 in 6 adults reported having had a condition that was misdiagnosed.

Evidence suggests that while years of experience and strong diagnostic skills help prevent diagnostic errors, they do not afford full protection against the cascade of events that can result in a serious diagnostic error. In fact, overconfidence may contribute to the problem.^10,11

The take-away message: No physician is immune to misdiagnosis or to a subsequent lawsuit. There are, however, steps you can take to safeguard your patients and yourself, but first you need to know where the pitfalls lie.

Misdiagnosis in primary care: What malpractice claims reveal

Diagnostic errors that result in malpractice claims undergo extensive legal review. Thus, they provide an excellent opportunity for analysis, as the authors of a study of 181 “closed,” or completed, claims from 4 malpractice insurers found.¹² The errors all occurred in ambulatory settings, with primary care physicians most frequently involved.

Nearly 6 in 10 of the lawsuits were for missed or delayed cancer diagnoses, followed by misdiagnosis of infection, fracture, and myocardial infarction. Overall, 24% of the cases involved breast cancer. No other disorder came close.

The most common problems, or “breakdowns,” in the diagnostic process were:

• failure to order the appropriate diagnostic test (which occurred in 55% of the cases)
• failure to create a proper follow-up plan (45%)
• failure to obtain a thorough medical history or to perform a thorough physical examination (42%).¹²

Notably, however, diagnostic errors rarely had a single cause. A median of 3 breakdowns per case was identified, and more than 4 in 10 cases involved more than 1 clinician.

Additional sources of breakdowns ran the gamut from patient factors (eg, non-compliance, atypical presentation, or a delay in seeking care) to system errors (eg, delay in seeing a test result, referral delay, or a mishandled handoff). Rarely was misdiagnosis attributed to a physician’s cognitive error alone. Most diagnostic errors, the authors reported, involved “a potent combination of individual and system factors.” ¹²

Is it cancer? Failure to test or follow up

Cancer may not be the most frequently misdiagnosed condition, but because of the dire consequences often associated with a delay in detection, cancer is No. 1 in frequency of diagnostic error lawsuits¹³—with breast cancer typically at or near the top of the list. Evidence suggests that clinician preconception plays a role.

Most women who develop breast cancer are over the age of 50, but plaintiffs in breast cancer suits tend to be younger.^14,15 This may be partly because of overreliance on age as a predictive factor, causing some physicians to offer a younger woman what may be unwarranted reassurance that a breast lump is due to fibrocystic tissue rather than malignancy (CASE 1).

Ordering a test is not enough. Even when physicians order the correct test, follow-up may fall short. In the closed claims study, physicians incorrectly interpreted test results in 37% of the cases.¹² Other evidence suggests that about a third of women with abnormal mammograms do not receive follow-up care that’s consistent with established guidelines.¹⁶

What’s more, physicians sometimes overlook the fact that diagnostic tests are rarely 100% accurate. Mammography misses approximately 20% of breast cancer cases,¹⁷ for example, and a woman with a palpable lump should be closely watched, not dismissed on the basis of a negative mammogram result.^1,15

What happens to test results? In other cases, the problem is not that a test result doesn’t match the clinical findings, but that the result is not reviewed by the physician or conveyed to the patient in a timely manner. Indeed, the title of a published report of a survey of internists starts with the quote, “I wish I had seen this test result earlier!” ¹⁸ Of the 262 internists surveyed, only 41% expressed satisfaction with their method of handling test results.

What would satisfy these physicians? Respondents said what they wanted in a test result management system were tools that would help them generate letters to patients detailing the results, prioritize their workflow, and track orders for tests to completion.

By the way, doc… Harried physician, hurried response
What physician isn’t familiar with the patient who comes in for care of 1, or several, chronic conditions, but mentions another problem as he or she is getting ready to walk out the door (CASE 2)? If that problem appears to be a transient and treatable condition, the temptation is to make a hasty diagnosis and write a prescription, without the usual degree of history taking, patient examination, contemplation, or documentation. Doing so, however, poses considerable risk, to both patient and physician.

If the condition or symptom is serious enough to address in the course of the visit, it requires the same level of attention as any other presenting problem. When time constraints prevent you from addressing the complaint with the proper diligence, it would be appropriate—assuming the symptom in question is nonurgent—to ask the patient to make another appointment. But be sure to document that you did so.

How sure are you of the diagnosis?
It’s human nature to see things in terms of what you’re familiar with. A doctor who has been treating a patient with migraine headaches for years, for example, is apt to assume that “the worst migraine I’ve ever had” is more of the same (CASE 3). Similarly, a clinician who has identified a disorder that matches several of a patient’s symptoms may dismiss or overlook signs and symptoms that do not fit that explanation or diagnosis. Safety advocates refer to this phenomenon as “premature closure.” It may also be a function of overconfidence.

One example of physician overconfidence comes from a study in which experienced dermatologists were asked to examine lesions and diagnose melanoma. Although the specialists confidently diagnosed melanoma in more than 50% of the test cases, 30% of their decisions were later found to be incorrect.¹⁹

Build a no-fault, fail-safe system

The purpose of analyzing diagnostic errors is not to assign blame or point a finger at physicians, but rather to find and fix flaws in the medical system.²⁰ That approach has been used by patient safety advocates to address other types of errors following the publication of the Institute of Medicine’s landmark report on medical error 11 years ago.²¹

Since then, many physician leaders have looked to the airline industry—a field in which the consequences for not strictly adhering to a fail-safe system are likely to be fatal. That reality has led to the development of vital checklists, forcing functions (in which the user is prevented from moving to the next step until the current step is completed), and computerized reminders in an attempt to eliminate, to the extent possible, the chance of human error.

The same principle can be applied to misdiagnosis. Recommended steps—ordering diagnostic tests or referring to a specialist, for example—should be put into motion whenever a set of predetermined parameters are met, rather than relying on physician memory or choice.²⁰

Similarly, checklists should specify questions to ask or criteria to be met under specified circumstances to prevent physicians from prematurely settling on a (possibly incorrect) diagnosis. To avoid a rush to judgment, some patient safety advocates¹ stress the importance of assessing the urgency of a patient’s condition, rather than trying to arrive at a definitive diagnosis the first time he or she presents with a perplexing set of signs and symptoms. Other recommendations follow:

Mandate a second look. Develop and adhere to a set of criteria to determine when a referral to a specialist or a physician consultation is needed, rather than deciding on a case-by-case basis.

Plug the holes in your follow-up system. Develop a fail-safe system for reviewing diagnostic tests or laboratory findings and reporting them to patients without delay. This can be done with an electronic health record (EHR) system or by developing and adhering to parameters requiring, for instance, that no test result get filed until there are 2 signatures on it—that of the physician who ordered the test, indicating that he or she has seen it, and that of a staff member, indicating that the patient has been notified of the results. As an additional back-up, tell patients undergoing tests when to expect to get results, and stress the importance of calling the office if they do not receive such notification within a specified time frame.

Partner with patients. Engage patients in the pursuit of a definitive diagnosis. Discuss your preliminary findings, describe your treatment decision and what you expect to occur, and urge patients to contact you with evidence that confirms or refutes that expectation. Elicit additional feedback at each visit until either the symptoms have fully resolved or you have gathered enough information to arrive at a definitive diagnosis.

Develop “don’t-miss” checklists. One list should cover diagnostic red flags to be considered anytime you see a symptomatic patient to ensure that you don’t overlook important signs and symptoms, and include findings that warrant hospital admission, specified diagnostic tests, and immediate referral. (A patient who comes in with a “common pink eye,” but has consensual photophobia, is at risk for iritis and needs an urgent ophthalmology evaluation, for instance.) Another list you should develop is a “must-do” list for well visits, featuring clinical scenarios to address and screening tests to remember, such as an eye exam for patients with diabetes.

Question your initial diagnosis. Beware of “premature closure”—the tendency to stop looking for other signs and symptoms once you find a presumptive diagnosis—and “diagnostic inertia”—evaluating new signs and symptoms almost exclusively on the basis of past medical history. If aspects of a patient presentation do not fit your presumed diagnosis, use a decision support system, if available, to review other possibilities.

Head off hand-off errors. Develop a problem list for each patient to reduce the likelihood that crucial information will be overlooked when more than 1 clinician is involved in his or her care. Include chronic and acute conditions, unexplained signs and symptoms, medications, and allergies. Create a fail-safe system for other potential hand-off problems, as well—requiring confirmation that the findings in a preliminary radiology report are the same as those in the final report before you take action based on the preliminary report, for example, and ensuring that you receive prompt notification whenever that is not the case.

EHRs and decision support: Isn’t it time?
In 2009, 44% of office-based physicians had EHRs, according to a Centers for Disease Control and Prevention preliminary report.²² Federal funding to promote the adoption of EHRs is expected to accelerate their use. Among the benefits of EHRs are clinical reminders, system alerts, and documentation tools that can help reduce the risk of diagnostic missteps and avert misdiagnosis lawsuits.

The Department of Veterans Affairs uses a notification system called View Alert, for example, that tracks acknowledgement of abnormal radiology test results and flags those that remain unacknowledged. ²³ EHR systems can also be programmed to issue automated appointment reminders that make it easier to track patients who do not show up for critical follow-up visits.

Diagnostic decision support software adds another critical element. When a clinician inputs a set of symptoms and patient-specific data, such systems produce lists of possible diagnoses, often divided by bodily system.

While many safety advocates believe that the use of such systems will increase the likelihood of accurate diagnosis, critics point out that the software is only as good as the clinician using it. One concern is that computerized systems typically come with a “macro” ability—that is, the ability to enter large amounts of information with the click of a key. This raises the possibility that an overload of patient data, some of which may be incorrect, will be added to the medical record—or that the system will generate so many possibilities that clinicians will cease to pay attention. Both can lead to inferences of inattention or raise doubts about a physician’s credibility in a legal setting.

Electronic prescribing software systems that flag potential drug interactions are a case in point. Forty-five percent of family physicians responding to a Journal of Family Practice Instant Poll about their use of such systems reported that they override them frequently. The problem, according to 1 respondent: The system gives “so many red flags that I routinely ignore them all—like the little boy who cried wolf.”

CORRESPONDENCE John Davenport, MD, JD, 13 Redonda, Irvine, CA 92620; [email protected]

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 …”

Delayed referral ends in (too) late diagnosis of colon cancer

CONSTIPATION AND ABDOMINAL PAIN prompted a 45-year-old woman to consult her primary care physician, who recommended a change in diet. Two months later, the patient returned to the doctor because her symptoms hadn’t resolved, but admitted that she hadn’t altered her diet. The doctor repeated her recommendation for dietary change.

A month later, when the symptoms had worsened, the physician referred the woman to a gastroenterologist, who performed a colonoscopy. The colonoscopy revealed a large mass in the colon, which was diagnosed as stage IV cancer. The woman ultimately died.

PLAINTIFF’S CLAIM The doctor was negligent in failing to diagnose the cancer promptly.

THE DEFENSE The patient was treated for the complaints she presented with at each visit, and a referral wasn’t warranted until it was given.

VERDICT $420,000 New York verdict.

COMMENT I shudder when I read cases that could reflect my own practice patterns. How many patients with abdominal pain do we temporize? And the delay in diagnosis was only a few months!

Student in “excellent” health collapses on basketball court

The summer before he was to start college, an 18-year-old student went to an internist for a physical exam and asked the physician to complete a form that the college required. The physician documented a “slight systolic murmur” on the form, followed by a question mark. The physical was otherwise unremarkable, and the physician signed the form, indicating that the young man was in “excellent” health and fit to participate in all college activities without restrictions.

Nearly 4 years later, the student—then a senior and a member of the college basketball team—collapsed and died during a game. The cause of death: sudden cardiac death related to hypertrophic cardiomyopathy (HCM).

PLAINTIFF’S CLAIM The physician found a slight systolic murmur—a condition often associated with HCM—that should have prompted her to order further tests. Additional testing would have resulted in an HCM diagnosis.

THE DEFENSE The doctor did order an electrocardiogram, but the patient failed to keep the appointment. During the 3½ years after the exam, 5 other health care providers cleared the young man for college athletics.

VERDICT $1.6 million Massachusetts jury award.

COMMENT Sometimes seemingly innocuous findings can signify serious problems. Lack of closing the loop on documentation and follow-up remains a common denominator in malpractice settlements.

Sources: MoreLaw Lexapedia. Available at: http://www.morelaw.com/verdicts/case.asp?n=&s=MA&d=43384. Accessed May 11, 2010; Hypertrophic Cardiomyopathy Association correspondence.

Abnormal EKG with no follow-up, concludes with fatal MI

A 53-YEAR-OLD MAN WITH A HISTORY OF HEART DISEASE and cardiac symptoms went to his family physician of many years for a physical examination. The physician performed an electrocardiogram (EKG), which was normal, but the patient reported occasional chest pain. His physician referred him to a cardiologist for further evaluation. The cardiologist performed a stress test, which was normal.

Three years later, the patient had another physical exam and EKG. Although he reported no chest pain at this exam, he did mention heart palpitations, flutters, and skips. A computer reading revealed that the EKG was abnormal, with a possible inferior infarction. The patient’s physician nevertheless decided against a further work-up and did not refer him to a cardiologist.

Less than a month later, the man’s wife found him dead in bed. The death certificate cited myocardial infarction as the cause of death.

PLAINTIFF’S CLAIM No information about the plaintiff’s claim is available.

THE DEFENSE No information about the defense is available.

VERDICT $900,000 Virginia settlement.

COMMENT When faced with evidence of cardiac ischemia, prompt attention is indicated. Enough said.

Suicide attempt blamed on improper med management

A MAN WITH OBSESSIVE-COMPULSIVE DISORDER was prescribed fluoxetine by his psychiatrist as part of treatment. After several years, the psychiatrist discontinued the medication; the patient subsequently developed selective serotonin reuptake inhibitor (SSRI) discontinuation syndrome, including depression and suicidal ideation. The patient tried, unsuccessfully, to kill himself with a shotgun and ended up facing criminal charges of reckless endangerment.

The patient was transferred to the care of another psychiatrist, who prescribed higher doses of fluoxetine. The suicidal ideation stopped, but the patient complained of ongoing, disabling depression and distress related to his suicide attempt.

PLAINTIFF’S CLAIM The doctor failed to manage the patient’s medication properly. Discontinuing fluoxetine is known to cause the symptoms the patient experienced.

THE DEFENSE The plaintiff had told the first psychiatrist that he wanted to discontinue fluoxetine and had failed to report any concerns related to stopping the drug. SSRI discontinuation syndrome is rare, and the symptoms are difficult to detect.

VERDICT $911,000 New York verdict.

COMMENT Although I would quibble with the label discontinuation syndrome (sounds more like recurrent major depressive disorder), it’s very important to monitor patients carefully when starting treatment with an antidepressant, during changes in therapy, and after discontinuing a drug.

Delayed referral ends in (too) late diagnosis of colon cancer

CONSTIPATION AND ABDOMINAL PAIN prompted a 45-year-old woman to consult her primary care physician, who recommended a change in diet. Two months later, the patient returned to the doctor because her symptoms hadn’t resolved, but admitted that she hadn’t altered her diet. The doctor repeated her recommendation for dietary change.

A month later, when the symptoms had worsened, the physician referred the woman to a gastroenterologist, who performed a colonoscopy. The colonoscopy revealed a large mass in the colon, which was diagnosed as stage IV cancer. The woman ultimately died.

PLAINTIFF’S CLAIM The doctor was negligent in failing to diagnose the cancer promptly.

THE DEFENSE The patient was treated for the complaints she presented with at each visit, and a referral wasn’t warranted until it was given.

VERDICT $420,000 New York verdict.

COMMENT I shudder when I read cases that could reflect my own practice patterns. How many patients with abdominal pain do we temporize? And the delay in diagnosis was only a few months!

Student in “excellent” health collapses on basketball court

The summer before he was to start college, an 18-year-old student went to an internist for a physical exam and asked the physician to complete a form that the college required. The physician documented a “slight systolic murmur” on the form, followed by a question mark. The physical was otherwise unremarkable, and the physician signed the form, indicating that the young man was in “excellent” health and fit to participate in all college activities without restrictions.

Nearly 4 years later, the student—then a senior and a member of the college basketball team—collapsed and died during a game. The cause of death: sudden cardiac death related to hypertrophic cardiomyopathy (HCM).

PLAINTIFF’S CLAIM The physician found a slight systolic murmur—a condition often associated with HCM—that should have prompted her to order further tests. Additional testing would have resulted in an HCM diagnosis.

THE DEFENSE The doctor did order an electrocardiogram, but the patient failed to keep the appointment. During the 3½ years after the exam, 5 other health care providers cleared the young man for college athletics.

VERDICT $1.6 million Massachusetts jury award.

COMMENT Sometimes seemingly innocuous findings can signify serious problems. Lack of closing the loop on documentation and follow-up remains a common denominator in malpractice settlements.

Sources: MoreLaw Lexapedia. Available at: http://www.morelaw.com/verdicts/case.asp?n=&s=MA&d=43384. Accessed May 11, 2010; Hypertrophic Cardiomyopathy Association correspondence.

Abnormal EKG with no follow-up, concludes with fatal MI

A 53-YEAR-OLD MAN WITH A HISTORY OF HEART DISEASE and cardiac symptoms went to his family physician of many years for a physical examination. The physician performed an electrocardiogram (EKG), which was normal, but the patient reported occasional chest pain. His physician referred him to a cardiologist for further evaluation. The cardiologist performed a stress test, which was normal.

Three years later, the patient had another physical exam and EKG. Although he reported no chest pain at this exam, he did mention heart palpitations, flutters, and skips. A computer reading revealed that the EKG was abnormal, with a possible inferior infarction. The patient’s physician nevertheless decided against a further work-up and did not refer him to a cardiologist.

Less than a month later, the man’s wife found him dead in bed. The death certificate cited myocardial infarction as the cause of death.

PLAINTIFF’S CLAIM No information about the plaintiff’s claim is available.

THE DEFENSE No information about the defense is available.

VERDICT $900,000 Virginia settlement.

COMMENT When faced with evidence of cardiac ischemia, prompt attention is indicated. Enough said.

Suicide attempt blamed on improper med management

A MAN WITH OBSESSIVE-COMPULSIVE DISORDER was prescribed fluoxetine by his psychiatrist as part of treatment. After several years, the psychiatrist discontinued the medication; the patient subsequently developed selective serotonin reuptake inhibitor (SSRI) discontinuation syndrome, including depression and suicidal ideation. The patient tried, unsuccessfully, to kill himself with a shotgun and ended up facing criminal charges of reckless endangerment.

The patient was transferred to the care of another psychiatrist, who prescribed higher doses of fluoxetine. The suicidal ideation stopped, but the patient complained of ongoing, disabling depression and distress related to his suicide attempt.

PLAINTIFF’S CLAIM The doctor failed to manage the patient’s medication properly. Discontinuing fluoxetine is known to cause the symptoms the patient experienced.

THE DEFENSE The plaintiff had told the first psychiatrist that he wanted to discontinue fluoxetine and had failed to report any concerns related to stopping the drug. SSRI discontinuation syndrome is rare, and the symptoms are difficult to detect.

VERDICT $911,000 New York verdict.

COMMENT Although I would quibble with the label discontinuation syndrome (sounds more like recurrent major depressive disorder), it’s very important to monitor patients carefully when starting treatment with an antidepressant, during changes in therapy, and after discontinuing a drug.

Delayed referral ends in (too) late diagnosis of colon cancer

CONSTIPATION AND ABDOMINAL PAIN prompted a 45-year-old woman to consult her primary care physician, who recommended a change in diet. Two months later, the patient returned to the doctor because her symptoms hadn’t resolved, but admitted that she hadn’t altered her diet. The doctor repeated her recommendation for dietary change.

A month later, when the symptoms had worsened, the physician referred the woman to a gastroenterologist, who performed a colonoscopy. The colonoscopy revealed a large mass in the colon, which was diagnosed as stage IV cancer. The woman ultimately died.

PLAINTIFF’S CLAIM The doctor was negligent in failing to diagnose the cancer promptly.

THE DEFENSE The patient was treated for the complaints she presented with at each visit, and a referral wasn’t warranted until it was given.

VERDICT $420,000 New York verdict.

COMMENT I shudder when I read cases that could reflect my own practice patterns. How many patients with abdominal pain do we temporize? And the delay in diagnosis was only a few months!

Student in “excellent” health collapses on basketball court

The summer before he was to start college, an 18-year-old student went to an internist for a physical exam and asked the physician to complete a form that the college required. The physician documented a “slight systolic murmur” on the form, followed by a question mark. The physical was otherwise unremarkable, and the physician signed the form, indicating that the young man was in “excellent” health and fit to participate in all college activities without restrictions.

Nearly 4 years later, the student—then a senior and a member of the college basketball team—collapsed and died during a game. The cause of death: sudden cardiac death related to hypertrophic cardiomyopathy (HCM).

PLAINTIFF’S CLAIM The physician found a slight systolic murmur—a condition often associated with HCM—that should have prompted her to order further tests. Additional testing would have resulted in an HCM diagnosis.

THE DEFENSE The doctor did order an electrocardiogram, but the patient failed to keep the appointment. During the 3½ years after the exam, 5 other health care providers cleared the young man for college athletics.

VERDICT $1.6 million Massachusetts jury award.

COMMENT Sometimes seemingly innocuous findings can signify serious problems. Lack of closing the loop on documentation and follow-up remains a common denominator in malpractice settlements.

Sources: MoreLaw Lexapedia. Available at: http://www.morelaw.com/verdicts/case.asp?n=&s=MA&d=43384. Accessed May 11, 2010; Hypertrophic Cardiomyopathy Association correspondence.

Abnormal EKG with no follow-up, concludes with fatal MI

A 53-YEAR-OLD MAN WITH A HISTORY OF HEART DISEASE and cardiac symptoms went to his family physician of many years for a physical examination. The physician performed an electrocardiogram (EKG), which was normal, but the patient reported occasional chest pain. His physician referred him to a cardiologist for further evaluation. The cardiologist performed a stress test, which was normal.

Three years later, the patient had another physical exam and EKG. Although he reported no chest pain at this exam, he did mention heart palpitations, flutters, and skips. A computer reading revealed that the EKG was abnormal, with a possible inferior infarction. The patient’s physician nevertheless decided against a further work-up and did not refer him to a cardiologist.

Less than a month later, the man’s wife found him dead in bed. The death certificate cited myocardial infarction as the cause of death.

PLAINTIFF’S CLAIM No information about the plaintiff’s claim is available.

THE DEFENSE No information about the defense is available.

VERDICT $900,000 Virginia settlement.

COMMENT When faced with evidence of cardiac ischemia, prompt attention is indicated. Enough said.

Suicide attempt blamed on improper med management

A MAN WITH OBSESSIVE-COMPULSIVE DISORDER was prescribed fluoxetine by his psychiatrist as part of treatment. After several years, the psychiatrist discontinued the medication; the patient subsequently developed selective serotonin reuptake inhibitor (SSRI) discontinuation syndrome, including depression and suicidal ideation. The patient tried, unsuccessfully, to kill himself with a shotgun and ended up facing criminal charges of reckless endangerment.

The patient was transferred to the care of another psychiatrist, who prescribed higher doses of fluoxetine. The suicidal ideation stopped, but the patient complained of ongoing, disabling depression and distress related to his suicide attempt.

PLAINTIFF’S CLAIM The doctor failed to manage the patient’s medication properly. Discontinuing fluoxetine is known to cause the symptoms the patient experienced.

THE DEFENSE The plaintiff had told the first psychiatrist that he wanted to discontinue fluoxetine and had failed to report any concerns related to stopping the drug. SSRI discontinuation syndrome is rare, and the symptoms are difficult to detect.

VERDICT $911,000 New York verdict.

COMMENT Although I would quibble with the label discontinuation syndrome (sounds more like recurrent major depressive disorder), it’s very important to monitor patients carefully when starting treatment with an antidepressant, during changes in therapy, and after discontinuing a drug.

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.