malpractice suits during residency

[gherelin]

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[docB]

I don't know too much about this. Your liability is partially limited by your being subserviant to the attending however if you made the mistake you may still get a judgement against you. I do know that if you are sued, even in residency, you have to mention this on all future license and priveledge applications. You have to disclose this even if you are eventually dropped from the suit.

 

[Lemont]

There was a case a while ago where the lawyers actually went after the resident and not the attendings. I'm not too sure about the specifics, but I believe they decided to drop all or most of the attendings from the lawsuit for whatever reason and concentrated on the resident. If I remember correctly in the end there was a huge monetary verdict against the resident. I would post a link but I have forgotten the name of the case. Maybe somebody else here knows.

 

[Nick99]

anybody know much about how a resident would be affected if a patient or family brings a malpractice lawsuit because of a bad outcome? I've heard from several residents and attendings who have been in this situation that the resident is not individually liable because they are in training and under the supervision of attendings. Some residents I know have even been subpoenaed several times already before even finishing residency but testify that all decisions were signed off on by attending etc. Does a resident need their own lawyer in these situations or it's ok to just let the hospital handle it? If anyone knows of any other threads of this topic, would appreciate the link. thanks.

What is it about, what happened? Can you give us more details?

 

[gherelin]

There was a case a while ago where the lawyers actually went after the resident and not the attendings. I'm not too sure about the specifics, but I believe they decided to drop all or most of the attendings from the lawsuit for whatever reason and concentrated on the resident. If I remember correctly in the end there was a huge monetary verdict against the resident. I would post a link but I have forgotten the name of the case. Maybe somebody else here knows.

This doesn't make sense unless the resident had his own malpractice insurance or was independently wealthy....

 

[edmadison]

Don't let any of this discussion fool you. As a resident, you can be sued. In general, there is no restriction on your liability (any person found negligent can be held responsible for the full amount of the damages). There may be some states out there with an obscure law restricting liability on trainees, but none to my knowledge. The exception of course is working for the VA or other government hospital. In that case, the Federal Tort Claims Act covers you and you are protected as long as you are working within the scope of your employment.

Ed

 

[docB]

There was a case a while ago where the lawyers actually went after the resident and not the attendings. I'm not too sure about the specifics, but I believe they decided to drop all or most of the attendings from the lawsuit for whatever reason and concentrated on the resident. If I remember correctly in the end there was a huge monetary verdict against the resident. I would post a link but I have forgotten the name of the case. Maybe somebody else here knows.

I think that had to do with a state that had a cap on noneconomic damages (the bogus fluff money) that only covered licensed docs but left the residents hanging. The shysters realized that if they dropped the attending and just screwed the resident they could get more cash so that's what they did. I think it was Michigan or Wisconsin but I'm not sure.

 

[shemozart]

There was a case a while ago where the lawyers actually went after the resident and not the attendings. I'm not too sure about the specifics, but I believe they decided to drop all or most of the attendings from the lawsuit for whatever reason and concentrated on the resident. If I remember correctly in the end there was a huge monetary verdict against the resident. I would post a link but I have forgotten the name of the case. Maybe somebody else here knows.

in regards to the above thought, by chance, the case in question didn't occur in Wisconsin, did it? I seem to remember a case in the news a year ago that involved a lawyer going after a pediatrics resident at Children's Hospital of Wisconsin in Milwaukee - I remember thinking it was strange that all the attendings were dropped from the lawsuit and just one resident, who has since graduated, was left. And it was a HUGE monetary verdict. Just found the link to the story - here it is...

http://www.jsonline.com/news/metro/oct04/269177.asp

 

[Lemont]

in regards to the above thought, by chance, the case in question didn't occur in Wisconsin, did it? I seem to remember a case in the news a year ago that involved a lawyer going after a pediatrics resident at Children's Hospital of Wisconsin in Milwaukee - I remember thinking it was strange that all the attendings were dropped from the lawsuit and just one resident, who has since graduated, was left. And it was a HUGE monetary verdict. Just found the link to the story - here it is...

http://www.jsonline.com/news/metro/oct04/269177.asp

Yes, that is the case I was talking about. I just didn't remember the verdict being that much.

 

[StickMe]

Any news on what their Supreme Court decided with residents falling under the cap?

 

[f_w]

The WI case was really bizarre. The attending GI who f#(#(# up big time was not named until the statute of limitations had expired and got off. The peds attending supervising the intern had his liability capped by state law and was dropped by the plaintiff for lack of interest. The hospital managed to get out based on some technicality. Through some semantic issue the way the statute on medical liability caps in WI was written, an intern practicing with a temporary license was not covered. As a result, the Milwaukee county pension fund who paid for the kids medical expenses went after the intern with a delight that wasn't even funny. In the end, the intern was found liable for 23mil. The legislature in WI has re-written the law a bit and now interns are covered under the cap. So this was a quite unique case and unlikely to be repeated in this form.


Residents are named in lawsuits all the time. It gives the plaintiff access to the deep pockets of the hospital (the residents 'master'). But during early phases of the process, residents are commonly dropped.

Typically you are either indemnified by the hospital or you carry coverage under some blanket liability policy. Find out from your hospitals GME office how you are covered. The insurance company or the hospital would provide your attorney if you got named. However they work for the insurance company and not for YOU. So sometimes it is a good idea to hire your own co-counsel so the other named parties and the insurance co don't sell you out (e.g. by settling a bogus suit instead of fighting it. For them 20k is peanuts, for you it is a black mark on your record in the national practicioner database).

If you have a case were you are worried about legal action (e.g. if you find out that patients or an attorneys office have requested the chart), do the following things:

- contact your hospitals risk manager
- get them to assign one of the hospitals attorneys to you and the case
- do NOT discuss the case with your colleagues, attendings friends
- do NOT perform literature searches on the issue, don't check out books from the library until you have been assigned an attorney by the hospital or the insurer (the moment you have an attorney, your literature searches are priviledged attorney client communications and not 'discoverable' for the other side in a potential suit)
- do NOT contact the patient, the family, the attorneys office requesting the chart
- do NOT take the chart and make copies, alter your notes etc.

 

[Nick99]

Hi folks,
can you tell me what do you think about my case that I discribed before:

http://forums.studentdoctor.net/showthread.php?t=225282

Do you think that it is much more serious if "conspiracy to cover up" is involved and discovered and proved, of course? What bad can happen? What do you think?

 

[f_w]

- do NOT discuss the case with your colleagues, attendings friends
- do NOT perform literature searches on the issue, don't check out books from the library until you have been assigned an attorney by the hospital or the insurer (the moment you have an attorney, your literature searches are priviledged attorney client communications and not 'discoverable' for the other side in a potential suit)


Maybe I should add another one:

- DO NOT post detailed descriptions of your misdoings on a publicly accessible internet bulletin board.

Please, please, don't post anything more on this lawsuit thing on a BB. Get a medmal defense attorney. You are in deep s%(* and you are not making it better by disseminating information about your case in cyberspace. If this mishap indeed went down the way you described it, you are risking not only civil liability but potentially criminal consequences. So please, for your own futures sake, delete whatever information you have posted and try to get the mod to delete the threads.

 

[Nick99]

- do NOT discuss the case with your colleagues, attendings friends
- do NOT perform literature searches on the issue, don't check out books from the library until you have been assigned an attorney by the hospital or the insurer (the moment you have an attorney, your literature searches are priviledged attorney client communications and not 'discoverable' for the other side in a potential suit)


Maybe I should add another one:

- DO NOT post detailed descriptions of your misdoings on a publicly accessible internet bulletin board.

Please, please, don't post anything more on this lawsuit thing on a BB. Get a medmal defense attorney. You are in deep s%(* and you are not making it better by disseminating information about your case in cyberspace. If this mishap indeed went down the way you described it, you are risking not only civil liability but potentially criminal consequences. So please, for your own futures sake, delete whatever information you have posted and try to get the mod to delete the threads.

f_w,
what do you mean do not post it here? What bad can happen cause of it? Can you tell us please as I posted my case already?
Thanks

 

[f_w]

> what do you mean do not post it here? What bad can happen
> cause of it? Can you tell us please as I posted my case already?

You have posted sufficient detail for an 'interested party' to recognize the case. You have freely admitted to various behaviours that if know to the other side not only make the case indefensible but also expose you to the risk of criminal prosecution (The internet is not anonymous. A site like this logs the IP addres the post came from. Your internet provider logs which IP an individual user had at any given time. Your identity is traceable.)

It frightens me that someone who was smart enough to make it into ENT residency would do what you are doing.

 

[Nick99]

> what do you mean do not post it here? What bad can happen
> cause of it? Can you tell us please as I posted my case already?

You have posted sufficient detail for an 'interested party' to recognize the case. You have freely admitted to various behaviours that if know to the other side not only make the case indefensible but also expose you to the risk of criminal prosecution (The internet is not anonymous. A site like this logs the IP addres the post came from. Your internet provider logs which IP an individual user had at any given time. Your identity is traceable.)

It frightens me that someone who was smart enough to make it into ENT residency would do what you are doing.

OK you can be right about the other party, but why criminal prosecution? Whatfore?

 

[f_w]

- Assault (you inflicted serious bodily harm on a patient who had not consented to the procedure)
- Fraud (your attending friend billed a service that he didn't perform)
- Conspiracy (you and your attending hashed out this evil plan to cover your crime up by pretending that a more experienced resident did the case)
- Forgery (you were participant in altering the medical record to hide your doings)
- Practice of medicine without a license (unless you had a full license in this state at the time. Your temporary or residents license is only valid at an institution integrated in your residency program).

Criminal prosecution 'what for' ? To get your sorry a(# in jail and for a ambitious assistant DA to further his career.

 

[lexrageorge]

- Assault (you inflicted serious bodily harm on a patient who had not consented to the procedure)
- Fraud (your attending friend billed a service that he didn't perform)
- Conspiracy (you and your attending hashed out this evil plan to cover your crime up by pretending that a more experienced resident did the case)
- Forgery (you were participant in altering the medical record to hide your doings)
- Practice of medicine without a license (unless you had a full license in this state at the time. Your temporary or residents license is only valid at an institution integrated in your residency program).

Criminal prosecution 'what for' ? To get your sorry a(# in jail and for a ambitious assistant DA to further his career.

Sounds like paranoid "lawyer speak" to me. Sorry, watching a code is not assault, nor is it fraud, nor is it unlicensed practice. Yes, your posting is not protected, and can be used in a civil lawsuit as evidence against you. I agree 100% with f_w here. But there is no, as in NONE, criminal liability here. If there is, posting a message on the internet does not change the liability in any way.

 

[Winged Scapula]

Sounds like paranoid "lawyer speak" to me. Sorry, watching a code is not assault, nor is it fraud, nor is it unlicensed practice. Yes, your posting is not protected, and can be used in a civil lawsuit as evidence against you. I agree 100% with f_w here. But there is no, as in NONE, criminal liability here. If there is, posting a message on the internet does not change the liability in any way.

f_w wasn't speaking about the post from gherelin above (in which he describes watching a code) but rather numerous previous posts by Nick99 in which he describes what sounds to be a conspiracy. He is well advised to stop posting such information here.

 

[f_w]

My list of felonies was not in response to gherelins original post, sorry to have contributed to the hijacking of your thread.

Nick99 described in prior threads how he performed some sort of nose job as an intern at a private ENTs office/ASC. This happened without consent of the patient and resulted in a class 4 complication requiring further surgical procedures. When the patient who got harmed sued, he participated in a conspiracy to cover his crime up. He better stop posting this stuff and probably he should go back and delete the threads and posts containing the details of the case.

As for the OP:

Having participated in the care of a patient who eventually died doesn't mean that you will be named in a suit. You did not make the decision regarding the level of care of this patient (the ED attending did), you did not accept the transfer (your floor attending did), you had the patient examined by the higher up in your chain of command (2nd year). While the outcome was bad, outside of IL this doesn't mean that you are automatically culpable. Talk to the hospitals and/or your employers risk manager. It is their job to analyze these cases, get counsel and to gauge the likelihood of legal action. If they think the risk is high, they will take appropriate steps to minimize the potential damage (and part of these steps is indeed for everybody involved to shut up about it, and yes this includes posting a potential case on the internet).

 

[southerndoc]

In response to states limiting liability of trainees, some states (i.e., Georgia) have laws that limit liability of residents, medical students, nursing students, and other allied health students.

Respondiat superior dictates that as an employee of the hospital, the hospital is responsible for your actions. The vast majority of residents are employed by the hospital. Therefore, the hospital is responsible for your actions. This is in contrast to private physicians or even academic physicians who are often employed by a medical school affiliated with a hospital (even if the university owns the hospital, many times it is self-incorporated, thereby making it legally independent).

The Wisconsin incident was a result of bad wording in the medical malpractice law.

 

[lexrageorge]

Kimberli, f_w,

Thanks for the clarification. Sorry for my mistaken reply. I agree that Nick99 needs to cough up the bucks for his own lawyer.

 

[f_w]

Respondiat superior dictates that as an employee of the hospital, the hospital is responsible for your actions. The vast majority of residents are employed by the hospital. Therefore, the hospital is responsible for your actions.


Actually, until I pulled the decisions on that WI case, I allways thought that a resident is protected by 'respondeat superior'.

As a sideline of that case, the interns employer (a consortium of milwaukee hospitals) managed to get off the hook through an 'interlocutory appeal'. This appeal was based on the argument that they didn't 'control' the practice of their residents and that therefore 'respondeat superior' didn't apply.

 

[southerndoc]

Respondiat superior dictates that as an employee of the hospital, the hospital is responsible for your actions. The vast majority of residents are employed by the hospital. Therefore, the hospital is responsible for your actions.


Actually, until I pulled the decisions on that WI case, I allways thought that a resident is protected by 'respondeat superior'.

As a sideline of that case, the interns employer (a consortium of milwaukee hospitals) managed to get off the hook through an 'interlocutory appeal'. This appeal was based on the argument that they didn't 'control' the practice of their residents and that therefore 'respondeat superior' didn't apply.

I believe that is still in appeal.

 

[APACHE3]

I'm interviewing this year for Match 2006. Should I ask PD to clarify malpractice coverage? This post is scaring me!! 😱

 

[f_w]

As a resident, you allways carry malpractice coverage through the hospital. This can either be in the form of a malpractice policy with one of the local carriers, or by the hospital itself (=self insured). The place I did my residency at was state owned, as a result I didn't have malpractice coverage per se, but anyone suing me would have to sue the state instead (the attorney generals office would serve as my defense attorney).

But having insurance doesn't mean that you can't get named in a suit. It just means that someone will pay your defense cost and pay the settlement in the 1% of malpractice cases that actually result in a judgement for the plaintiff. (1% of cases filed. The great majority is dropped or dismissed before it comes to trial)

So, don't worry too much about the issue when you are applying for residency. Just make sure that your actions are defensible, document your work properly and don't do anything stupid (like moonlighting without a license and malpractice coverage).

 

[fedor]

Respondiat superior dictates that as an employee of the hospital, the hospital is responsible for your actions. The vast majority of residents are employed by the hospital. Therefore, the hospital is responsible for your actions.


Actually, until I pulled the decisions on that WI case, I allways thought that a resident is protected by 'respondeat superior'.

As a sideline of that case, the interns employer (a consortium of milwaukee hospitals) managed to get off the hook through an 'interlocutory appeal'. This appeal was based on the argument that they didn't 'control' the practice of their residents and that therefore 'respondeat superior' didn't apply.

Allow me to clarify. Respondeat superior means that the employer (ie, the hospital) is liable if the employee's behavior is within the scope of the employment relationship.

It doesn't in any way shield the employee. What it does is it additionally makes the employer liable. This is very useful in cases where the employee lacks the resources to compensate the victim. So if you have been harmed by an employee at a hospital (ie, nurse, resident, tech, security guard, etc.) you can go after 1) the employee who harmed you 2) the employer (who often has deeper pockets) 3) both.

 

[gherelin]

I originally posted here, with some trepidation of course, because I was avoiding discussing this at work, and because I think it happens often and yet no one ever talks about it, and I was being told it was trivial, the hospital would handle it, not to worry etc. I wanted another opinion. I don't know if it is possible to remove the post, and quotes of it, with my details but if so I would greatly appreciate it-although I think a general thread on this topic is very important. I searched and did not find another one. Thanks.

 

[Nick99]

Hi folks,
I think you are overreacting. It's not like when the other party turns on computer then this forum and particular thread pops up. It would be very very small probability that the opposing party can find this forum (next to zero).
I mean common 🙄

 

[Docxter]

Hi folks,
I think you are overreacting. It's not like when the other party turns on computer then this forum and particular thread pops up. It would be very very small probability that the opposing party can find this forum (next to zero).
I mean common 🙄

In most residencies, the residents have good malpractice insurance, often between 1 and 5 million. This very fact makes them very good targets for malpractice lawyers to go after them.