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Can I Sue a Resident Doctor for Medical Malpractice?

When a patient is in the hospital, they may end up seeing dozens of medical professionals who are involved in their care. Most patients assume they are being treated by doctors and nurses but there may be many types of professionals participating in medical treatment. Some of the professionals may actually be medical students in training and not yet licensed as doctors. 

When a patient is injured because of medical malpractice, they may not be sure who was responsible for the injury. If a resident was involved, the supervising physician may be responsible for the resident’s mistake. The hospital or clinic may also have some responsibility for the negligence of residents or hospital employees. 

Liability and financial responsibility in a medical malpractice case can be a complex issue. Your medical malpractice attorney may have to include everyone who was involved in your care in order to recover compensation for your injuries. If a resident was involved in causing your medical injuries, you can sue the resident doctor, attending physicians, and others for medical malpractice. If you have any questions about a medical injury claim, contact our medical malpractice law firm for help.

What Is a Resident in a Hospital Setting?

Residency is part of the education and training for doctors in the U.S. In most states, a medical student has to complete at least one year of postgraduate education, such as a residency in a hospital. A residency can also be called an internship. For medical specialties, specialist residency programs can be much longer, generally from three to seven years, depending on the specialty or subspecialty. 

A resident generally has a medical degree, including an MD or a DO, and practices medicine in a hospital or clinic under the supervision of an attending physician or senior clinician. Residents may not yet have a medical license but they can practice on the license of a supervising physician, who is generally responsible for supervising the residents during the internship. 

Residencies can be very competitive. There are a lot of factors that determine which medical school graduates get into which teaching hospitals. Residency programs can be determined by USMLE scores, letters of recommendation, personal statements, medical school performance evaluations, class ranking, and perceived interest in the program and specialty. 

Residency Application and Selection Process

The application and selection process for residents can be very competitive. There are several factors involved in applying for and qualifying for residency. The process begins with written applications to choose a specialty, hospital system, and subtrack. After applications, hospitals and programs review the applications and select candidates for interviews. 

Interviews can take place over a few days, with a tour, meetings, and formal interviews to evaluate the applicant’s interest in the program and specialty. After interviews, the medical students create a rank-order list of their residency programs. On “Match Day,” candidates can find out whether they matched with one of their selected programs, and can begin their residency.

Residents Working Long Hours

One of the issues that can impact the quality of care by residents is their schedule. Medical residencies often require working long hours. Residents may end up working 100 hours a week for long stretches. During some periods, the resident may be “on-call” or share duties. However, they may still end up at the hospital for 36-hour shifts. This can result in sleep deprivation which can be associated with making errors. 

Drowsy driving is associated with more dangerous driving, including an increased risk of accidents. Similarly, working in an intensive work environment, like a hospital, with sleep deprivation can increase the risk of making mistakes, difficulty concentrating, and difficulty performing complex tasks. Some groups are trying to regulate and limit residency working times but these recommendations are often optional or voluntary. 

Another issue that may be cause for concern is the limit of overnight supervision. According to a study published in JAMA, 51% of internal medicine residents reported overnight supervision was always adequate to ensure patient safety. However, when nocturnists were present, the reported adequate supervision increased to 61%. The researcher concluded that hospitals should assess the adequacy of nighttime supervision to ensure patient safety.  

Types of Residency Specialization

Residents can be involved in any type of medical care. There are dozens of specialties and subspecialties that residents can be involved in for a period of 3 years to 7 years, depending on the type of practice. For example, medical residency for internal medicine or family medicine may be for 3 years. Neurosurgery residency can take 7 years. 

There are more than a hundred types of medical specialties, according to the American Medical Association. Internal medicine is the most common medical specialty, followed by family medicine and pediatrics. According to the Association of American Medical Colleges, the top 10 specialties by the number of active physicians include: 

  1. Internal medicine
  2. Family medicine/general practice
  3. Pediatrics
  4. Emergency medicine
  5. Anesthesiology
  6. Obstetrics and gynecology
  7. Psychiatry
  8. Radiology and diagnostic radiology
  9. General surgery
  10. Cardiovascular disease

What Kinds of Medical Mistakes Do Residents Make?

If your hospital or clinic has a residency program, this means you could be dealing with a medical resident in just about any aspect of medical care, from general medical care with an internist to specialized surgical care with an orthopedic surgeon. Some types of medical errors can include: 

Supervision of Resident Doctors

Residents are training in a specialized area of medicine, so it makes sense for them to have on-the-job training where they practice the care they will be responsible for after their residency is complete. However, there is supposed to be a supervising doctor who is responsible for the resident. 

The supervising doctor should correct any mistakes, help the resident learn to avoid serious mistakes, and what actions to take if they did do something wrong. If the supervising doctor fails to properly oversee the residents, they may also be responsible for errors caused by the doctors-in-training. 

According to a study published in JAMA, increased supervision of resident inpatient teams did not significantly reduce the rate of medical errors. Instead, it resulted in interns speaking less and residents reporting decreased levels of autonomy. The 9-month clinical trial reviewed 22 attending physicians seeing more than 1,200 patients. The study concluded that residency programs should consider a balanced level of residency supervision.  

In contrast to this study, a review of medical malpractice cases involving residents found that a failure in direct supervision could increase the risk of medical errors. According to the researcher, Dr. Cornelius Thiels, of the Mayo Clinic, “This review of malpractice cases involving surgical residents highlights the importance of perioperative management, particularly among junior residents, and the importance of appropriate supervision by attending physicians as targets for education on litigation prevention.”

Is Your Doctor a Resident?

Many hospital patients are not really sure what types of medical professionals are involved in their care. They may end up seeing a number of doctors and residents, and other non-doctor workers, including nurses, physician’s assistants, medical techs, and hospital employees. Unless you ask the doctor directly, you may not know whether your doctor is a resident or not. 

Why does it matter if the doctor who made a mistake was a resident or a full clinician? If the doctor was a resident, it may mean that the supervising doctor is responsible for the medical treatment or failures made by the resident. In a medical malpractice lawsuit, your attorney will generally name all parties involved in the care, even if they are later cleared of any liability. This is important because failure to name the right party within a limited amount of time may limit your ability to recover damages. 

Most residents and residency programs have medical malpractice insurance. This means the hospital, program, or individual doctor has an insurance policy to provide liability coverage if the doctor makes a medical error. The resident may not end up having to pay anything out-of-pocket, even after making a serious medical error. The hospital or insurance company will generally end up covering any damages after a medical error. 

 If you have questions about liability, insurance, and medical malpractice claims, you can talk to your experienced malpractice attorney about your case. 

Is the Hospital Responsible for a Resident Doctor’s Mistakes?

Even if the doctor made a medical error, the hospital can still be liable for damages. Employers can be liable for the negligence of employees that occurs while the worker is acting in the course of their duties. Liability of the employer is known as respondeat superior. In many cases, a resident doctor is an employee of the hospital or clinic. This means the hospital may be financially responsible for damages caused by the resident’s malpractice. 

For an employer to be vicariously liable for the negligence of an employee, the negligence has to occur within the scope of employment. Generally, this means the employee was negligent and caused damage while on the clock and doing work the employee was hired to perform. In the case of medical malpractice, negligence committed while the doctor was performing the work of a doctor at the hospital could be extended to the hospital. 

For example, a surgical resident is performing surgery under the supervision of another surgeon at a teaching hospital in Chicago. The surgeon makes a mistake and leaves a surgical instrument behind after surgery, which is left inside the patient’s body. The supervising doctor fails to notice the left-behind surgical error. Months later, the surgical error is discovered after it has caused serious infection and injury. 

The negligent surgery occurred while the resident was in the scope of employment. As an employee of the hospital, the injury victim may be able to recover damages from the hospital under vicarious liability. 

Apparent Authority of a Resident Doctor

In some situations, a resident may not be an employee of the hospital where the injury occurred. However, a hospital could still be liable for a resident’s errors under apparent authority. Also known as ostensible agency, apparent authority may allow an injury victim to recover damages for the negligence of someone who appeared to be an agent of the hospital. 

One of the problems with medical malpractice cases is that the patient may not be clear about what type of medical professional is providing care and whether the professional is an employee of the hospital. In some cases, a patient can go to the hospital for treatment only to get a bill from a doctor because that doctor does not accept the patient’s insurance, even if the treatment occurred in a covered hospital. 

There are many doctors who work in hospitals who are not employees of the hospital. These doctors may be independent contractors or work for another hospital. However, the patient may have no idea where the doctor is employed and if the hospital is liable for damages caused by the doctor. Under apparent authority, a hospital could still be liable for a non-employee’s negligence if it appeared as if the doctor was an employee. 

For example, a Pennsylvania hospital may be held vicariously liable for the negligent acts of another health care provider through ostensible agency if the evidence shows that: 

  • A reasonably prudent person in the patient’s position would be justified in the belief that the care in question was being rendered by the hospital or its agents; or
  • The care in question was advertised or otherwise represented to the patient as care being rendered by the hospital or its agents.

After a Medical Injury Caused by a Medical Resident

After suffering a medical injury, you deserve to be compensated for your financial losses, additional treatment, and any pain suffered as a result of malpractice. A medical malpractice attorney with experience handling medical injury cases can help you understand your options. If the injury was caused by a medical resident, the resident, supervising doctor, or hospital may be liable for damages. Talk to a malpractice attorney about who may be liable for your losses. 

Talk to experienced trial attorneys who can review your case, get an expert’s review, and help you understand your legal options to file a claim after a medical malpractice injury. Contact Gilman & Bedigian online or at 800-529-6162 for a free consultation.

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