Personal Liability of Residents, Attending Staff, and Training Programs in Graduate Medical Education
The American Surgeon, 2021
We read with interest the article, “The Fundamentals of Resident Dismissal,” by Schenarts et al. ... more We read with interest the article, “The Fundamentals of Resident Dismissal,” by Schenarts et al. and applaud the authors for their perspicuous insight which we found useful. We found the article’s section on ‘Educational Malpractice’ particularly valuable. The article notes: “While at present there is no published case law documenting that residency programs have been sued for educational malpractice, failure to instruct properly or have a fundamentally sound educational program could form the future basis of a negligent educational act.” The NJ Supreme court case of Pellicer v. St. Barnabas Hospital is a good example of the personal liability that the program director and the department chair can have for mishaps relating to administration of the residency program. In this case, the administrators of the residency program were found guilty not for the clinical care that they provided, but rather for failing to have a qualified anesthesia resident available to respond and for failing to train the resident adequately to respond to the emergency. The case illustrates the liability of medical educators as evident by the fact that the program director and chair were not the direct clinical supervisors of the resident at the time of the incident and that the direct clinical supervisor was not named in the lawsuit. In summary, this is a case a four-month-old boy with spina bifida who successfully underwent surgery and was transferred late at night to the pediatric intensive care unit (PICU) intubated from the operating room. In the PICU, while the patient was moving, the nurse noticed bradycardia and hypoxemia and believed the endotracheal tube dislodged. She then called the pediatric intensivist and the on-call anesthesia resident. This resident had only two and a half months of intubation experience at the time and was only qualified to intubate adults. The resident manually ventilated the patient which improved oxygen saturations and her assessment, based on her auscultated breath sounds, was that the endotracheal tube was in the correct place. The PICU nurse had a standing active order from the PICU intensivist to administer paralytic (vecuronium) in the event of “severe agitation”; she decided to execute it on her judgment which eliminated the spontaneous respiratory drive of the patient. The PICU intensivist, who was covering from home, began driving to the hospital after he was notified of the patient’s status and, at that time, verbally ordered to reintubate the patient. At that point the anesthesia resident asked the team to call the attending anesthesiologist who was her supervisor during the shift and was caring for patients on the labor and delivery service. It took about 10 minutes for the attending anesthesiologist to be called, arrive, and quickly reintubate the patient. The patient survived but suffered hypoxic ischemic encephalopathy requiring substantial life-long care. The jury attributed the total award liability of $70,891,781.59 to the anesthesia resident, program director, PICU nurse, and anesthesia chair in the following proportions respectively: 50%, 15%, 10%, and 25%. This case is remarkable for a number of aspects besides its high monetary value. The event occurred in 1998 but took until 2009 to eventually be decided by the NJ Supreme Court after a mistrial. We find it instructive that the inexperienced resident was judged as the most liable— more liable than any of the attendings. Interestingly, the direct clinical supervisor of the resident was not named as a defendant in the lawsuit. Furthermore, the PICU attending was not ultimately liable. In light of that, if the program director created a different resident call schedule, he may not have been named in the lawsuit. Companies often purchase directors and officers liability insurance (referred to in the business as D&O), particularly in the world of publicly traded corporations, to cover indemnification for personal liability incurred by directors or other administrators. Perhaps similar policies should be considered by graduate medical education institutions.
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