Are you liable for a resident's mistake?

June 3, 2005

If a resident is working under your supervision, you'll probably be held legally responsible if he's sued for malpractice.

A: The short answer is "No." If a resident is sued while working at a hospital under your supervision, you and the hospital may both be held legally responsible for his actions. The resident may be sued initially, but plaintiffs will typically drop the resident and go after the attending and the hospital because they have "deeper pockets," and are therefore more lucrative targets.

Even if the resident is dropped from the suit, he may still be deposed, and may even have to testify at trial. If the case settles or results in a judgment, however, it's generally the attending whose name will be reported to the National Practitioner Data Bank, not the resident's.

In some states, residents at state-run hospitals also have what's called "sovereign immunity" from malpractice suits as long as they are practicing "within the scope of their employment." That immunity may not apply, however, if the resident's actions fall outside that scope. For example, a resident may be sued if he's accused of being under the influence of alcohol or drugs, assaulting a patient, or engaging in some form of gross negligence, "reckless indifference," or other professional misconduct. In such situations, the resident may be held independently liable for his own conduct, although the attending may still be sued for failure to properly supervise him.

The hospital's malpractice policy won't cover a resident who's moonlighting at another hospital or at a nursing home. In that case, the resident may be sued; but typically the other hospital or nursing home will also be named because they're responsible for their employees' conduct. Of course, if there's an attending physician involved, he's likely to be sued as well.

One recent case involved a resident who worked at a nursing home under the supervision of an attending medical director who stopped by once a week. When a patient fell, the resident examined her and put her to bed without calling for an X-ray or consulting with the attending. Four days later, when the attending showed up and noticed the swelling, he diagnosed a fractured hip. In that case, the resident and the attending were both sued, but the plaintiff later dropped the resident from the suit, and proceeded against the attending only.

For both residents and attendings, the message is clear: Ask to see the hospital's malpractice policy to find out the extent to which a resident's actions are covered, and if there are any limitations to that coverage. If there's any question, call a local malpractice defense attorney to check on your coverage and your potential liability.

The author is a malpractice defense attorney with LeClair Ryan in Richmond, VA. He can be reached by e-mail at jfitzpatrick@leclairryan.com
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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, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 973-847-5390 or e-mail it to memalp@advanstar.com
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