Malpractice Consult

By Lee J. Johnson, JD

Your liability when you teach residents

Q: At our community hospital, specialists in private practice have traditionally volunteered to take family practice residents for four-week, part-time rotations designed to familiarize the residents with common problems encountered in various fields. We specialists have been asked to sign an agreement stating, "The preceptor is responsible for adequate training, supervision, evaluation, etc." of residents. Does this expose the preceptor to liability if the resident harms a patient because of inadequate training in a specialty?

What if the resident fails his boards because he is weak on the material from the preceptor's rotation? Can the preceptor be held responsible for that?

A: An injured patient might file a suit against the resident, the hospital as the resident's employer, and you as the resident's supervisor. Whether the suit would succeed depends on a number of factors. The employer is typically liable for the acts of employees on the theory that it had control over their actions. The law imposes liability on supervisors for the same reason.

The "borrowed servant" doctrine implies that the master who has borrowed the worker/servant from the employer for the day will have control over the worker's actions. If the worker causes damage, who had control over his actions at the time of the injury? In this case, an argument can be made that it was the preceptor. The fact that you acted as the preceptor for free and at the request of the employer might help your defense, but it wouldn't give you absolute immunity.

Still, in the situation you describe, it's most likely that you'd be dismissed from the lawsuit once you gave a deposition or affidavit testifying that since you never directly treated the patient, you didn't owe him a legal duty of care. Furthermore, as a part-time preceptor, you aren't directly involved in the supervision of residents to the same extent as the hospital or residency director.

Court decisions around the country have gone both ways regarding allegations of inadequate supervision. Some judges have ruled that supervising physicians can't be held accountable for malpractice unless a plaintiff can prove that the supervisor should have known the resident's training was deficient.

In a Maryland case, a pregnant woman had gone to the hospital several times over three days, complaining of labor pains. Each time, residents told her to return home. When she finally came back to the hospital, by ambulance, the fetus was in distress.

The residents phoned the on-call obstetrician, who instructed them to perform a cesarean section. The child was born with severe brain damage. The on-call doctor was sued, along with the hospital and residents, on the theory that the residents were his "borrowed servants" and he was liable for their alleged malpractice because he had supervised them negligently.

An appeals court ruled that the doctor wasn't liable because the fetal damage had already occurred by the time he was contacted, and because the residents were working for the hospital, not for the obstetrician. That doctor had no duty to the patient; his duty was only to respond to calls for assistance.

Other courts have upheld claims against supervising physicians. The North Carolina Supreme Court ruled that they play a vital role in patient care even when they don't have any direct contact with the patient. The court allowed plaintiffs to present evidence that negligent supervision contributed to a patient's injuries.

If you're in a supervisory position, it makes sense to phone in at the beginning of your on-call shift and ask about any potential problems that might be imminent. You obviously can't respond personally to every case. However, if you find that less-than-optimal care is being rendered, consider holding training sessions with residents and other team members so that they know when to call for help.

Your hospital's request that you and other preceptors sign an agreement accepting responsibility is a troubling wrinkle. Make certain that your duties are clearly spelled out. Are you merely expected to teach residents, or do you also take an on-call role in supervising their treatment of patients? You might ask the hospital to provide a "hold harmless" agreement to grant you immunity from a lawsuit. In the event you were sued, your defense would typically be covered by your malpractice insurance policy.

It's also conceivable that a resident could file suit against you on the theory that your negligence in teaching caused him to fail his boards. The resident would probably lose that suit for two reasons: He could have gone to the hospital to request assistance, and, besides, no teacher can guarantee that a student will absorb the material and pass a test.

The author, based in Mount Kisco, NY, is a health care attorney who specializes in risk management issues. This department answers common professional-liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics magazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 201-722-2688 or send it via e-mail to memalp@medec.com.

 

Carol Pincus, ed. Lee Johnson. Malpractice Consult. Medical Economics 2000;11:187.