Expanded liability of hospitals for the negligence of fatigued residents.

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Expanded liability of hospitals for the negligence of fatigued residents Dorothy J. McNoble M.D., J.D.

a

a

Chief Resident in General Surgery , University of Colorado Health Sciences Center , 967 Marion #4, Denver, Colorado, 80218 Published online: 23 Jul 2009.

To cite this article: Dorothy J. McNoble M.D., J.D. (1990) Expanded liability of hospitals for the negligence of fatigued residents, Journal of Legal Medicine, 11:4, 427-449, DOI: 10.1080/01947649009510837 To link to this article: http://dx.doi.org/10.1080/01947649009510837

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The Journal of Legal Medicine, 11:427-449 Copyright © 1990 by Hemisphere Publishing Corporation

EXPANDED LIABILITY OF HOSPITALS FOR THE NEGLIGENCE OF FATIGUED RESIDENTS Downloaded by [New York University] at 10:03 21 May 2015

Dorothy J. McNoble, M.D., J.D.*

INTRODUCTION The rigors of medical training, long recognized as an essential component of a physician's education, have come under scrutiny since the death of Libby Zion in a New York emergency room in 1984. The circumstances surrounding Ms. Zion's death were investigated by a New York Grand Jury, which concluded that resident fatigue and poor supervision were the cause of her inadequate care. The Zion incident, and the attendant publicity, served as a catalyst for a re-examination of the residency structure in the United States. I. RESIDENT FATIGUE: CONFRONTING THE ISSUES Although initially resistant to any intrusion into the domain of physician training, the medical establishment has begun to recognize that fatigued residents pose an unwarranted risk to patients and gain little of educational value when working while exhausted. As a result of this recognition, some changes have occurred. In New York State, the Department of Health adopted, as part of its administrative health code, a regulation limiting residents work schedules to 80 hours a week, with consecutive call limited to 24 hours. Several other states have considered legislation, but no state has yet enacted any such legislation. The medical education establishment also has responded to the negative publicity surrounding the Zion case. The Accreditation Council on Graduate Medical Education (ACGME), which accredits all residencies, has promulgated guidelines for resident hours and supervision via its * Chief Resident in General Surgery, University of Colorado Health Sciences Center, Denver, Colorado; former trial attorney, National Labor Relations Board. Address correspondence to Dr. McNoble at 967 Marion #4, Denver, Colorado 80218.

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individual subspecialty committees. There is, however, inconsistency in these regulations. Some specialties are expected to impose a limitation on the maximum number of hours worked by residents, while other specialties, specifically surgical subspecialties, remain unregulated. In addition, the Veterans Administration, which includes 150 resident teaching hospitals, has instituted a policy recommending a limitation on the number of hours worked by residents. In spite of these changes, potential liability remains for hospitals, residency program directors, and even residents, as patients continue to be treated by fatigued, or arguably fatigued, residents. Inconsistency between the New York regulations and the ACGME recommendations, as well as inconsistency among the subspecialties in the ACGME regulatory scheme leave open the possibility of wide variations in resident work schedules. Those hospitals and residency programs that continue to have extended call hours may be liable for their disregard of stricter standards, which may be considered by courts or juries to comprise the standard of care. Hospitals and residency program directors will respond to allegations of resident fatigue by attempting to prove the lack of a causal relationship between fatigue and errors in patient management. They will point to the longstanding practice of conducting medical education in this manner. However, in light of the new regulations being promulgated in this area, it may be difficult to accord "standard of care" status to training programs that continue to require extended call schedules. Liability for injuries arising from patient management mistakes caused by fatigued residents may rest with hospitals, residency program directors, and individual residents. A. The Zion Case In early 1984, an 18-year-old college student named Libby Zion was seen in a New York City hospital emergency room for evaluation of an earache and a fever. Six hours later she was dead. Her care, administered primarily by an emergency room resident and an intern, consisted of restraints and demerol.1 No attending physician saw her and no antibiotics were given. Libby's father, Sidney Zion, a well-known New York Times journalist, requested an investigation into his daughter's death and, as a result, a Grand Jury was convened. 1. The Grand Jury Report The Grand Jury brought no criminal charges against any individuals involved, but instead indicted a system that allowed overtired, unsuper1

GRAND JURY REPORT, SUPREME COURT OF THE STATE OF NEW YORK, REPORT CONCERNING THE CARE AND TREATMENT OF A PATIENT AND THE SUPERVISION OF RESIDENTS AND INTERNS AND JUNIOR RESIDENTS AT A HOSPITAL IN NEW YORK COUNTY 2 (Dec.

1986).

EXPANDED LIABILITY OF HOSPITALS

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vised interns and residents to treat a seriously ill patient with sedatives and restraints. The Grand Jury made numerous recommendations designed to rectify these deficiencies. Included among the proposals were the following: (1) hospitals should staff emergency rooms with physicians who have had at least three years of training and who are specifically qualified to evaluate patients on an emergency basis; (2) junior residents and interns should be supervised by attending physicians or fellows at all times; and, (3) the New York Department of Health should promulgate regulations limiting the number of consecutive hours worked by interns and residents in teaching hospitals.2 2. The Bell Commission Recommendations In response to the Grand Jury recommendations, the New York State Health Department appointed an ad hoc advisory committee, chaired by Dr. Bertrand Bell, Director of Ambulatory Care for the Bronx Municipal Hospital Center.3 The committee was charged with the responsibility for making specific proposals to implement the Grand Jury recommendations. The committee received testimony from representatives of several of the most prominent and influential organizations responsible for graduate medical education.4 The issue receiving the most attention at these hearings, as well as in the press,5 was the following mandate of the Grand Jury: "The State Department of Health should promulgate regulations to limit the consecutive working hours for interns and residents in teaching hospitals."6 With one exception,7 every witness testifying before the committee opposed the imposition of any quantitative restriction on resident hours. While acknowledging the rigors of the standard 36 hour, every third night

2 3

Id. at 7. FINAL REPORT OF THE NEW YORK STATE AD HOC ADVISORY COMMITTEE ON EMERGENCY SERVICES, NEW YORK STATE DEPARTMENT OF HEALTH (1987).

4

5

A partial list of witnesses before the Bell Commission included the following: Robert G. Petersdorf, M.D., President, Association of American Medical Colleges; Paul Ebert, M.D. and Gerald W. Austen, M.D., American College of Surgeons; Lawrence Scherr, M.D. and John C. Gienapp, Ph.D., Accreditation Council for Graduate Medical Education; Associated Medical Schools of New York; Richard H. Schwarz, M.D., President, Associated Medical Schools of New York, Dean, SUNY downstate; Robert G. Newman, M.D., Vice Chairman, Graduate Medical Education Task Force, Hospital Association of New York State. NBC Today Show Transcript, June 10, 1987 (interview with R. Petersdorf); CBS Nightwatch Transcript, July 6, 1987 (interview with B.M. Bell); Some Limits on Intern Hours Backed, N.Y. Times, Aug. 21, 1987.

6

GRAND JURY REPORT, supra note 1, at 7.

7

Janet Friedman, President of the Committee of Interns and Residents, while testifying before the Bell Commission endorsed the concept of a limitation on resident hours, citing the chronic fatigue and resultant decline in judgment skills experienced by overtired residents.


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call schedule,8 the witnesses proffered several reasons for leaving the current on-call schedule intact. First, decision making and the execution of complex technical tasks under the duress of extreme fatigue and stress are the sine qua non of medical practice, both during residency and in the years of practice thereafter.9 "What better way to make good doctors than by subjecting them to the physical rigors which will become a permanent feature of their lives."10 Second, continuity of care requires the same resident who admits or operates on a patient to follow the patient postoperatively or through the acute phase of the illness for which the patient was admitted." This means the resident must not relinquish care to another physician after 16 or 24 hours.12 Third, the cost of hiring additional nurses, lab technicians, secretaries, and transport personnel to perform the many tasks now performed by residents would be prohibitive.13 In addition to hearing the testimony of these witnesses, the Commission reviewed dozens of articles and documents concerned with the adverse effects of sleep deprivation, and evidently found this literature to be persua-

8

The standard schedule of the residents in the specialties of medicine, family practice, ob-gyn, and surgery consists of a 36- to 40-hour shift that ends the evening following a night on call. This is followed by an 8- to 12-hour break and then two 12- to 15-hour days. The cycle then begins again. This is the current standard every third night call schedule practiced in nearly every academic training program in the country. There are, however, 10-20% of surgery residencies that require every other night call. In these residencies, the resident is on call for 36 hours and off for 8 or 12, then the cycle begins again. Every week the resident also has at least one shift lasting 48 to 56 hours. Moreover, when another resident becomes ill or takes a vacation, the covering resident may spend five to seven days in the hospital on call, and may be the only resident on the service. 9 AD HOC ADVISORY COMMITTEE, supra note 3, at 5 (testimony of F. Davidoff, American College of Physicians: "It would be unrealistic to expect residents to absorb the realities of caring for their equally fragile and needy patients if their working hours were fixed according to an arbitrary schedule, however well-intended."). 10 Imperato, Supervising Interns and Residents and Limiting Their Hours, 87 N.Y. ST. J. MED. 425, 425 (1987). Dr. Imperato's statement was intended as irony. The editorial strongly supports the concept of limiting hours. 11 "The care of my patients is enhanced when the physician who initially evaluated them after admission to the hospital continues to care for them for an extended period of time." AD HOC ADVISORY COMMITTEE, supra note 3, at 7 (testimony of J. Albers, M.D. of the American Medical Association). 12 This is an arguably fallacious assertion because illnesses do not last an arbitrary 36 hours either, nor do all operations or admissions occur at 7 a.m. on the morning of call. For example, resuscitation of a trauma arrest may take 20 minutes or several days. Evolution of complicated myocardial infarction may take hours or days. Moreover, the care of a complex surgical patient may be assigned, on the first postoperative night, to a junior resident who did not work up the patient and was not present during the operation. The argument about continuity of care is contradicted by the reality of the division of labor on a surgical team. 13 Recommendations of the New York State Department of Health's Ad Hoc Advisory Committee on Emergency Services, A Preliminary Analysis Prepared by the Greater New York Hospital Association, Executive Summary, Manpower and Financial Considerations, in AD HOC ADVISORY COMMITTEE, supra note 3.


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sive.14 Investigators have documented the fact that sleep-deprived residents perform worse than their alert colleagues, especially in tasks requiring complex analysis, such as the interpretation of cardiograms.15 On June 2, 1987, the Commission issued its recommendations, which included, inter alia, the following proposal: [Individual residents who have direct patient care responsibilities in areas other than the Emergency Department shall have a scheduled work week which will not exceed an average of 80 hours per week over a four week period and should not be scheduled to work as a matter of course for more than 24 consecutive hours with one 24 hour period of non-working time per week. Teaching hospitals will develop specific standards dealing with schedules and limits of responsibility of individual residents during consecutive working hours including responsibility for evaluation of new patients. This recommendation applies to Anesthesiology, Family Practice, Medical, Surgical, Obstetrical, Pediatric, or other services which have high turnover acutely ill patients.16

The recommendations constituted a dramatic change from standard practices in medical training programs throughout the country. 3. Implementation of the Commission's Recommendations The New York State Health Department incorporated these recommendations into the New York State Hospital Code. Among other things, the revised regulations provide as follows: (1) residents' work schedules must not exceed 80 hours per week; (2) residents may not work more than 24 consecutive hours; (3) there may be extensions of the 24-hour shift if patient care would be compromised by this limitation; (4) scheduled rotations must be separated by eight hours off; and, (5) residents must be given one day off per week.17 14

See, e.g., Asken & Raham, Resident Performance and Sleep Deprivation, 58 J. MED. EDUC. 382, 384 (1983). Investigators have concluded that sleep deprivation affects information-processing, resulting in longer periods to decide which response to make. It appears that, upon being "awakened" from sleep, performance is inferior to that of normal waking conditions, and the effects of sleep deprivation became more pronounced when assessed by sustained or continuous work task. See also Hawkins, Vichich, Silsby, Kruzich, & Butler, Sleep and Nutritional Deprivation and Performance of House Officers, 60 J. MED. EDUC. 530 (1985); Livingston & Leighton, Fatigue in Doctors, 1 LANCET 1280 (1983).

15

16

17

A study is currently under way at Boston's Brigham and Women's Hospital to "clarify the effect on house officer performance of on-call schedules . . . ." The study will attempt to go beyond "assessing error rates in reading electrocardiograms" according to Dr. Gary Richardson, an endocrinologist who heads the Boston Study. Dr. Richardson labels this approach, long viewed as a classic measure of performance, "too artificial and insensitive." Lamberg, Link Between Performance, Sleep Explored, Am. Med. News, Sept. 14, 1990, at 37. Working Conditions of Residents and the Issue of Ancillary Help, in AD HOC ADVISORY COMMITTEE, supra note 3, at 4. OFFICIAL COMPILATION, CODES, RULES, AND REGULATIONS OF THE STATE OF NEW YORK, tit. 10, Vol-

ume C, § 405.4(b)(6)(ii).

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These regulations have been in effect for a little over one year, but their impact remains uncertain.18 Surveys of New York City programs demonstrate a wide variation in compliance with the regulations." Most internal medicine and anesthesia programs were reportedly in compliance, but virtually no surgery programs were in compliance, even though surgery programs were granted a special exemption,20 allowing them to have extended work hours. Moreover, there are plans to "soften the rules"21 because of continued opposition from teaching physicians and some residents.22 Finally, although the Health Department has begun to monitor programs for violations and has documented violations of hours regulations, there are no plans to discipline programs that are not in compliance.23 B. The ACGME Recommendations While events were evolving in New York, the Accreditation Council on Graduate Medical Education (ACGME),24 which periodically reviews all residency programs and grants or denies them accreditation,25 appointed a Task Force on Resident Hours and Supervision. The Task Force was charged with the duty to review current educational conditions regarding resident supervision and resident work hours, and, in light of current literature, reports, and opinions of various organizations to make recommendations for the institution of guidelines or rules to govern resident hours and supervision. The imposition of specific rules in this area had never before been a part of the Accreditation Council's role. The Task Force enunciated several principles that it deemed crucial when formulating the new guidelines. These principles included an acknowledgement that "[t]he education of physicians is the primary objective of residency training and is integrally related to patient care, [and] patient 18

19 20

21 22

23 24

25

Page, Legislators Await Data on Effect of New York Hours Limits, A m . Med. News, Sept. 14, 1990, at 3 . Id. at 3 6 . An amendment to section 405.4 of the New York State Hospital Code exempts surgery residents from the 24-hour shift and 80 hour per week limitations if programs can demonstrate that surgery residents have only "infrequent" interruptions for patient care while on call. Page, supra note 18, at 36. "Residents by and large like the changes, but some program directors, especially surgery program directors, are apoplectic about them." Id. at 3 . Id. at 3 6 . The A C G M E is comprised of five member organizations—American Board of Medical Specialties, American Hospital Association, American Medical Association, Association of American Medical Colleges, and the Council of Medical Specialty Societies. The A C G M E carries out its mission to decide upon accreditation of residency programs through its 24 Residency Review Committees. Specifically, these committees, comprised of prominent academic physicians in each specialty, make accreditation decisions within their area of expertise. Thus, a committee of academic surgeons develops standards for and decides upon accreditation of surgical training programs. Pediatricians decide upon the requirements for pediatric residency programs, and


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safety and delivery of high quality health care should be of paramount importance to all teaching hospitals. . . ."26 Furthermore, "[education and patient care are both best conducted when residents have appropriate amounts and levels of responsibility under supervision and appropriate schedules designed to maximize educational experiences without producing counter productive stress, fatigue and depression."27 In 1988, the Task Force made recommendations that were adopted by the Accreditation Council. These recommendations were promulgated in the form of a directive to the individual Residency Review Committees to review their special requirements and develop requirements regarding the frequency of duty and on-call assignments for residents, . . . which should ensure, a) an adequate level of resident staff to prevent excessive patient loads, excessive new admission workups, inappropriate intensity of service or case mix, and excessive length and frequency of call contributing to excessive fatigue and sleep deprivation. Some ways of achieving an appropriate education environment might include: i) residents should be allowed to spend, on the average, at least one full day out of seven out of the hospital, ii) residents on the average should be assigned on call duty in the hospital no more frequently than every third night, iii) there should be adequate backup if sudden and unexpected patient care needs create resident fatigue sufficient to jeopardize patient care during or following on-call periods.28

The standards appear to articulate a specific set of requirements for all residency programs. However, in adopting the Task Force resolution, the ACGME also concluded that "the conditions were different in each of the 24 main subspecialty areas."29 The ACGME therefore charged each of the Residency Review Committees with the task of outlining specific standards for each specialty, presumably using the limitations set out by the Task Force as a guide. In March of 1990, the ACGME issued standards for resident work hours.30 In this document, each of the 24 Residency Review Committees set forth specific standards governing resident work hours in its subspecialty.31 With the exception of general surgery and certain surgical subspecialty committees,32 all of the committees responsible for primary direct patient care residencies set forth the following limitations: (1) residents are to be on call 26

REPORT O F THE A C G M E TASK F O R C E , SUMMARY O F ACTIONS (Feb. 8-9, 1988).

27

Id. Id. Id.

28 29 30

A C G M E AND RESIDENCY REVIEW COMMITTEES: STANDARDS FOR RESIDENT WORK HOURS (Mar. 1990).

31

Id. 32 Orthopedics, neurosurgery, general surgery, and thoracic surgery did not set any limitations on consecutive hours worked.

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no more than every third night; and, (2) residents are to be given one day per week off.33 In contrast, the surgical subspecialties either failed to address the issue of resident hours, or did so with vague hortatory phrases such as the following:34 Graduate training in neurological surgery requires a commitment to continuity of patient care as is practiced by qualified neurological surgeons. This continuity of care must take precedence—without regard to the time of day, day of the week, number of hours already worked, or on call schedules. At the same time, patients have a right to expect a healthy, alert, responsible and responsive physician dedicated to delivering effective and appropriate care. The program director must establish an environment that is optimal both for resident education and for patient care, while assuring that undue stress and fatigue among residents are avoided. It is her/her responsibility to ensure assignment of appropriate in-hospital duty hours so that residents are not required to perform excessively difficult or prolonged duties regularly.35

The recommendations of the Residency Review Committees cover approximately 75% of the 84,000 resident positions in United States training programs. Most of the focus of concern about resident hours has been in the specialties of internal medicine, family practice, obstetrics and gynecology, and all the surgical subspecialties. At this point, a bifurcation exists within the ACGME Residency Review Committees between the surgical specialties, which have left the regulation of resident hours entirely to the discretion of the individual residency program directors, and all of the other specialties, which have attempted to impose some quantitative limitation. The Internal Medicine Committee, for example, has suggested, in addition to the limitation noted above, that residents work no more than 80 hours per week. Thus, no clear standard has emerged from the ACGME efforts, and there may continue to be wide variation in resident work schedules. C. The Response of Other States and the Medical Education Community Spurred by the media's attention to the Zion case and by the dramatic response of the New York State Health Department, legislators in other states introduced bills limiting resident hours. Pennsylvania, Connecticut, Florida, Massachusetts, and California all have entertained and defeated leg33

ACGME AND RESIDENCY REVIEW COMMITTEES, supra note 30. On September 13, 1990, the American Board of Medical Specialties vetoed the ACGME proposal to include these reforms in its general requirements for all residency programs. 34 "[R]esidency review committees in most other specialties did not impose hours limits. They opted for less drastic changes, or in some cases, no changes at all." Page, Impact of Resident 80-Hour Work Limits Undetermined, Am. Med. News, Sept. 14, 1990, at 36.

35

ACGME AND RESIDENCY REVIEW COMMITTEES, supra note 30, at 11.



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islation aimed at limiting resident hours.36 Thus, New York is the only state with state-imposed limitations on resident work hours. Throughout the country, however, residency program directors in all specialties have felt the repercussions of the Zion case and many have reassessed and altered residency call schedules. For example, the Veterans Administration (V.A.), which includes 150 teaching hospitals, nearly all of which are affiliated with academic university programs, recently has addressed the issue of resident hours in its hospitals. On January 5, 1989, a circular issued by the Deputy Chief Medical Director required the Chiefs of Staff of all V.A. Hospitals to prepare a written policy regarding residency hours and supervision.37 The circular suggested that individual hospital policies include a provision for no more than every third night call, a maximum 80-hour work week, and one day off per week. No specific restrictions or requirements were imposed upon the hospitals, and the hospitals were not required to submit specific proposals documenting compliance with the recommendations in the circular.38 D. The Impact of Efforts to Reduce Resident Hours At present, no clear standard exists for the regulation of resident hours. The strictest regulation, represented by section 405.4 of the New York State Administrative Code, would limit resident work shifts in all specialties to 24 hours with an 80-hour maximum work week. The ACGME Residency Review Committee recommendations would limit residents in most nonsurgical specialties to every third night call with no specific limitation on the number of hours worked. The surgical specialties, except in the State of New York, remain unregulated.39 Within an individual residency program, call schedules will vary among individual hospital rotations. Every other night call and 48-hour shifts may persist in financially strapped and overburdened county hospitals, while the V.A. hospitals may reduce their call schedules to every third night to comply with the circular from Washington. This new attention to the effect of fatigue on resident performance, and the inconsistency in the regulations intended to address the problem, raise many novel and complex medical-legal issues. How does the trier of fact determine if the responsible physician was fatigued? Are medical decisions made during a state of extreme stress or fatigue assumed to be negligent if a 36

See, e.g., Substitute House Bill No. 5680, State of Connecticut House of Representatives, Feb. 15, 1989; General Assembly of Pennsylvania Senate Bill No. 1164; California Assembly Bill 3203, Feb. 26, 1990.

37

O F F I C E O F VETERAN'S ADMINISTRATION, GUIDELINES FOR WORK SCHEDULE O F M E D I C A L RESIDENTS IN

38

Id. Even in New York, virtually n o surgery programs were in compliance with the existing regulations. Page, supra note 18, at 3 6 .

ORDER TO PROVIDE QUALITY CARE (Circular 10-89-3 Jan. 5 , 1989). 39


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bad result occurs? Is a resident who works beyond a designated shift presumed to have impaired judgment? What is the evidentiary impact of the various regulations and proposals discussed above? Prior to discussing the legal implications of these regulations and recommendations governing resident work hours, the significant financial, manpower, and logistics problems are briefly discussed. First, in spite of protestations to the contrary,40 the ACGME recommendations as well as New York state regulations represent a significant reduction in resident work hours, and do not merely codify existing practice. This is confirmed by the data from a 1987 survey of resident working hours conducted by the AM A Center for Health Policy Research. A summary of the results of this survey is shown below.41 Total Hours Worked per Week by Program Specialty Program Specialty

Mean

Median

%tile

Mean

Median

%tile

Family Procedure Internal Medicine Surgery Pediatrics Obstetrics/ Gynecology Radiology Psychiatry Anesthesiology Pathology Other

70.6 74.6 87.0 79.2

69.0 73.0 87.0 80.0

101.0 107.0 122.0 107.2

82.3 90.3 98.0 93.6

83.0 93.0 102.0 94.0

110.0 116.9 125.0 120.0

89.1 50.1 52.6 76.0 48.0 70.6

89.0 52.0 50.0 75.0 50.0 69.0

117.3 71.0 74.7 102.0 75.1 102.0

93.9 51.0 66.5 81.4 54.2 87.0

89.5 53.0 67.0 82.0 57.0 87.0

120.2 71.2 96.0 121.2 78.4 112.0

As seen in this table, all residency specialties except radiology, psychiatry, and pathology exceed the recommended 80-hour week during in40 It is easy for us to forget that at the end of the last century and, indeed, up until as recently as 20-25 years ago medicine was seen largely as a calling, more akin to the ministry than today's medicine . . . . As a consequence, residents were expected to be called 24 hours a day, virtually without interruptions, throughout most of their training years, during this early period of U.S. Medicine's history. Marriage was not permitted . . . . Salaries were almost non-existent . . . . Residency training has changed in the residents favor . . . progressively and dramatically—during this same period. Residents are now on call a maximum of every third or fourth night. AD HOC ADVISORY COMMITTEE, supra note 3, at 7 (testimony of B. Davidoff, American College of Physicians). 41

AMA CENTER FOR HEALTH POLICY RESEARCH, SURVEY OF RESIDENT PHYSICIANS (1987). The August

15, 1990 issue of the Journal of the American Medical Association reported the results of a nationwide poll of residents on hours worked. The poll found that in all but five surgical fields, residents worked less than 80 hours a week. However, this poll is not considered to be as rigorous a survey as the 1987 survey and it remains "unclear whether some internal medicine residents are still working such long hours." Page, supra note 34, at 36. Dr. Janet Freedman, executive director of the Committee on Interns and Residents, maintains that, based on information she has obtained, "only a few other internal medicine programs . . . had taken steps to reduce residents' hours." Id.



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ternship.42 Overall, averaging all years of training, only surgery and obgyn exceed the 80-hour limit. However, 10% of surgery, medicine, pediatric, anesthesiology, and family practice programs average greater than 100 hours per week. Moreover, approximately 15% of surgery programs involve every other night call. In these programs, a weekly 48- to 56-hour shift is standard. A survey of surgical house staff at the University of Colorado Health Sciences Center demonstrated that, in the 1985-86 academic year, surgical house staff averaged a 105-hour work week.43 Finally even in programs with every third night call, the 36-hour shift remains standard; this violates section 405.4 of the New York regulation, which mandates a maximum 24hour work day. Therefore, it is clear that compliance with these more liberal regulations, such as those in New York as well as the ACGME regulations governing non-surgical specialties, will have a significant impact on many residents and training programs. The financial implications are staggering. As stated earlier, the Greater New York Hospital Association opposed the New York regulations as prohibitively costly. The New York State Health Department allocated $226 million to cover the initial costs of these changes. In California, the Board of Medical Quality Assurance is preparing a cost estimate for making similar changes.44 It cannot be denied that residents offer good, cheap labor. Losing the benefit of these $5.00-an-hour-all-purpose-physiciannurse-transporter-secretary-lab techs will be expensive. As stated by Dr. Imperato: "It is clear that there comes a point when residents function more for the institutions they serve than for either their patients or themselves."45 42

Every third night call with the standard 12-hour work day and one day per week off yields an 84hour work week.

43

SCHNECK-LIECHTY REPORT, GRADUATE EDUCATION COMMITTEE (University of Colorado Health Sci-

44

CALIFORNIA BOARD O F M E D I C A L QUALITY ASSURANCE, SUPPLEMENTAL REPORT O F THE 1988 BUDGET

ences Center Aug. 2 4 , 1990).

45

ACT, 1988-89 FISCAL YEAR, Item 1390-046-785. 1. Resident—Physician Study. Resident Physician Study. The Board of Medical Quality Assurance, upon approval of and ongoing consultation with the Subcommittee on State Administration of the Assembly Ways and Means Committee, shall contract for a study to: Analyze the economic impacts of reducing the current number of hours being worked by resident physicians and surgeons participating in post-graduate training to the recommended working limits as stated below. (1) N o more than 2 4 consecutive working hours without any new work assigned after 16 consecutive hours of work. (2) N o more than 12 consecutive hours of work in the emergency room. (3) N o more than 80 hours of work per week averaged over one month. (4) Two 24-hour periods of consecutive time off within every 14-day period. (5) N o more than one night in three of on-call duty in the hospital. Imperato, supra note 10, at 426.

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II. EXPANDED HOSPITAL LIABILITY FOR THE CONDUCT OF FATIGUED RESIDENTS What expanded liability do hospitals face with the advent of these changing concepts about the role of residents? Although only briefly alluded to during the Bell hearings,46 the liability of hospitals for the actions of overtired residents now looms as a potential issue in every malpractice case involving resident care of patients. For several reasons, in spite of the various efforts to limit resident hours, fatigued, or arguably fatigued residents, are likely to continue caring for patients, and the decisions made and procedures performed by these residents are going to be scrutinized for evidence that an error could be attributed to resident exhaustion. Why have the New York regulations and the ACGME recommendations not put this issue to rest? First, the New York regulations and the Residency Review Committee (RRC) standards are not sufficiently strict to protect patients. For example, according to the New York regulations, a surgery resident could still operate, a medicine resident treat, or an obstetrics resident perform a cesarean section after 30 or 40 hours on call. Second, in the surgical fields, there are no limits set by the RRC. The 56-hour shifts, standard in some programs, are not out of compliance with the ACGME standards. Finally, the hospitals and residency program directors may be aided in a dilatory enforcement of these rules by the residents themselves. In this regard, some residents perceive the rules as demoting them to shift workers and robbing them of the opportunity to comply with what they believe is the professional standard of patient care.47 This discrepancy in standards throughout the states and among specialties, as well as the possible delay in enforcement or implementation of applicable rules, leaves hospitals and residents exposed to potential liability. An examination of some of the legal theories upon which liability could be based is warranted. Three brief illustrative scenarios serve to elucidate the discussion of the applicable legal doctrines. EXAMPLE 1. In a busy trauma center, a senior and junior surgical resident, after being on call and awake for two days, perform an emergency laparotomy on a motor vehicle accident victim. In the course of dissecting out a briskly bleeding spleen, a segment of the distal pancreas is avulsed. Post-operatively a pancreatic fistula develops. The patient requires a two-month hospitalization and several percutaneous radiologic drainage procedures. 46

47

A D H O C ADVISORY COMMITTEE, supra note 3 , at 5 (testimony of R. Newman, Graduate Medical Education Task Force, Hospital Association of New York). Residents Unhappy with New Work Limits, Albany Times Union, July 10, 1989; Real-life Medical Trainees Find Work Demanding, but Rewarding, The Hartford Courant, Mar. 13, 1989.


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EXAMPLE 2. A surgery intern, at the end of a weekend on call places a central venous access catheter. Several attempts are required. The patient develops a pneumothorax. A chest tube is placed, but the air leak persists. The patient develops an empyema and requires a surgical decortication. EXAMPLE 3. A medicine resident who is post-call is paged stat to a code blue. An obese patient with severe lung disease has suffered a respiratory arrest. The resident attempts intubation, but cannulates the esophagus three times. On the fourth attempt, the resident succeeds with a tracheal intubation. The patient survives but has severe anoxic brain damage and requires permanent nursing home placement. A. The Negligence Standard The situations described above are not egregious or inexcusable examples of patient mismanagement. Rather, they represent plausible examples of error in technique or judgment that might or might not be viewed as malpractice by a judge or jury. The common theme in all of these examples is resident fatigue at the time of a critical decision or procedure, and the issue addressed here is what evidentiary effect testimony about resident fatigue will have in a malpractice trial. Specifically, what effect will the New York regulations, the ACGME recommendations, or even the data on sleep deprivation and performance have on allegations of negligence? Negligence is the failure to possess and exercise the requisite degree of skill and knowledge in caring for a patient. The standard against which the physician's performance generally is measured is established by expert testimony about the accepted principles of diagnosis, management, or therapy for a given problem or disorder.48 The trier of fact decides, as an issue of fact, what the standard of care is in each case and whether the physiciandefendant's behavior comports with the standard.49 In the examples described above, it is reasonable to anticipate that the plaintiff would allege, inter-alia, that the physician-resident who operates or makes critical decisions in a sleep-deprived state violates this general 48

"To prevail in a malpractice case, the plaintiff must establish through expert testimony both the standard of care and the fact that the defendant's conduct did not measure up to that standard." Harvey v. Fridley Medical Center, P.A., 315 N.W.2d 225 (Minn. 1982). See also Glover v. Ballhagen, 232 Mont. 427, 756 P.2d 1166 (1988); Watson v. McNamara, 229 Neb. 1, 424 N.W.2d 611 (1988); Smith v. Gottsegen, 535 So. 2d 1330 (La. App. 1988); Baker v. Gordon, 759 S.W.2d 87 (Mo. App. 1988); Whinston v. Kaiser Foundation Hosp., 93 Ore. App. 528, 763 P.2d 177 (1988).

49

McPherson v. Ellis, 305 N . C . 266, 287 S.E.2d 892 (1982). See also Miller, Cost Containment: Criteria for Physician Standard of Care and Need for Documentation of Expert Witness Experience, 35 M e d . TRIAL T E C H . Q. 1 (1988); Garves, Michigan Medical Malpractice Law Update, 67 M I C H . B.J. 597 (1988); Talmadge & Neugebauer, Survey of Washington Medical Malpractice Law, 23 G O N Z . L. REV. 267 (1988); Morreim, Cost Containment and the Standard of Medical Care, 75 CALIF. L. REV. 1719 (1987).


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standard of due care. Subsumed within this general allegation of negligence are many specific issues that must be addressed separately. In all of the examples, the sleep-deprived state of the resident as well as the bad result are easily proved.50 The issue, as framed by the plaintiff, will focus on whether it is more likely than not that an alert, well-rested resident physician would not have made the errors in question. The plaintiff will contend that this is the case. Furthermore, in attempting to meet this burden of proof, the plaintiff undoubtedly will rely upon the sleep deprivation literature reviewed by the Bell Commission, the Zion Grand Jury findings, and the ACGME standards. Every malpractice trial involving a teaching hospital could resemble a mini-Bell Commission hearing. In cases such as those presented above, the plaintiff will allege that the error in technique or judgment was caused by the defendant's inability to execute complicated medical tasks while sleep deprived and that the evidence proves this causal relation.51 Moreover, the plaintiff will allege that in light of the above described literature and findings,52 it is a violation of the professional standard of care for a fatigued resident to have primary patient care responsibilities. In response to the plaintiffs allegation of a causal relationship between fatigue and error, and the plaintiffs accusation of a violation of the professional standard of care, the defendant hospital or residency program director will counter with the argument that there is no causal relationship between the mishap and the resident's lack of sleep and that residents have typically functioned without sleep and this practice conforms to the accepted methods of resident training. Perfectly alert residents cause pneumothoraces, make technical errors during emergent surgery in a bloody field, or have difficulty intubating obese patients. Morbidity and mortality statistics from teaching institutions, if analyzed in a manner to so demonstrate, would show that residents who are two hours and forty-two hours into call make errors, and that errors are a part of training. The rate of errors among residents is higher than that of physicians who have completed training, but this is due to inexperience, not fatigue. The increased error rate in a training institution

50

51

52

The fact of sleep deprivation could be established by demonstrating that the same resident was writing orders for 36 or 48 hours or by documenting the arrival time in the emergency room of trauma or surgical patients, and showing that the same surgical resident performed all the consultations. See, e.g., Asken & Raham, supra note 14; Livingston & Leighton, supra note 14; Hawkins, Vichich, Silsby, Kruzich, & Butler, supra note 14. "Literature on the subject clearly indicates that judgment and skills suffer from sleep deprivation." J. DOCKERY, REPORT O F T H E COUNCIL O N M E D I C A L EDUCATION ON RESIDENT PHYSICIAN WORKING

HOURS AND SUPERVISION, REPORT C (I-87), A p p . IA, at 3 (American College of Graduate Medical Education 1987).



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may therefore be described as a manifestation of the effect of a learning curve, not a problem of sleep deprivation.53 Some surgery training programs continue to have every other night call, and, as shown, many medicine, obstetrics, and surgical programs continue to have 100-hour work weeks. The long hours of call, especially in internal medicine and surgery, are necessary because, after residency, cross-coverage of patients may not be available, and it may be necessary to operate on or treat patients while fatigued. This is the time-honored tradition of residency. Counter to this argument runs the dictum that "negligence can not be excused on the grounds that others practice the same kind of negligence."54 Just as courts now eschew the doctrine that conformity to local standards establishes evidence of due care when these standards run contrary to national practice,55 so too the courts may find the customary practice of long residency hours to be a dangerous and substandard practice.56 The court or jury may find that the New York regulations or the ACGME recommendations comprise a reasonable national standard and that allowing residents to work shifts longer than 24 hours a day or 80 hours a week, or on call schedules that require more than every third night call to be dangerously out of date. Technical complications and diagnostic errors are an unavoidable part of medical therapy. In fact, surgeons and other interventional subspecialties are legally required to inform patients undergoing elective procedures of the statistical chance of complication.57 Courts require medical practition-

53

54

55

Eisenhauer, Derveloy, & Hastings, Prospective Evaluation of Central Venous Pressure Catheters in a Large City Hospital, 196 A N N . SURG. 560 (1982); Hastings, Letter to the Editor, 200 A N N . SURG. 683 (1984) (increased rates of complication in placing central lines occur with more junior house officers). " T h e skill, diligence, knowledge, means and methods are not those 'ordinarily' or 'generally' or 'customarily' exercised or applied, but are those that are 'reasonably' exercised or applied. Negligence cannot be excused on the ground that others practice the same kind of negligence." Vassos v. Roussalis, 658 P.2d 1284, 1288 (Wyo. 1983) (quoting Vassos v. Roussalis, 625 P.2d 768, 772 (Wyo. 1981)). See also Incollingo v. Ewing, 444 Pa. 2 6 3 , 282 A.2d 206 (1971) (physicians must be cognizant of advances in pharmacology and should not prescribe out-dated medicines with serious side effects when safer more effective drugs are available). Taylor v. Hill, 464 A.2d 938 (Me. 1983); McCormack v. Lindberg, 352 N.W.2d 30 (Minn. A p p . 1984), rev. granted, 363 N.W.2d 307 (Minn.), vacated, 373 N.W.2d 604 (Minn. 1985); Pearson v. Parsons, 114 Idaho 334, 757 P.2d 197 (1988); M A C D O N A L D , M E Y E R , & ESSIG, HEALTH C A R E LAW

56

57

§ 11.02[3][g] (1989). Courts may conclude that sleep deprivation impairs judgment in the same manner as drugs and alcohol do, and may assign liability accordingly. See, e.g., Canterbury v. Spence, 464 F.2d 772 (D.C. Cir.), cert. denied, 409 U . S . 1064 (1972); Schultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 YALE L.J. 219 (1985); Montgomery, Power, Knowledge, Consent: Medical Decision Making, 51 MODERN. L. REV. 245 (1981); Peters, Illinois Law on Informed Consent in Medical Malpractice Actions, 76 ILL. B.J. 372 (1988).


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ers to exercise due care; they do not require physicians to guarantee a perfect result. "A doctor will not be negligent if he exercises such reasonable care and ordinary skills, even though he makes a mistake in diagnosis or fails to appreciate the seriousness of the patient's problem."58 Errors in judgment that occur with the best of intentions constitute negligence only if they result from a failure to use reasonable care. In the examples above, defendants will come forward with evidence of the acceptable complication rates of trauma laparotomies and central lines and the respiratory risks of obesity. There will be testimony about compliance with dissection techniques for splenectomy or code blue protocol. The weight accorded such testimony by the jury may, in the view of the defendant, be distorted by their perceptions of how much the sleep deprivation contributed to the complication. The jury may find it easier to blame the error on exhaustion, rather than try to understand the technical problems faced by the resident. Thus, the issue of resident fatigue complicates a negligence trial, especially for the defendant, because the plaintiff may be able to make an "end run" around some of the complicated medical issues by focusing on the evidence of sleep deprivation. The trial judge, who must frame the issues of causation and negligence for the jury, will be required to keep several issues separate. For example, the jury may be asked to consider the following questions: Was the resident actually fatigued? Was the resident's fatigue a cause of the error in judgment or technique? Was the standard of care violated or was the untoward result an accepted risk of the procedure? Is there a maximum limit on the number of hours per shift that constitutes a violation of the standard of due care? Clearly, there will be an increase in the complexity of malpractice trials involving allegations of negligence due to resident fatigue. Fatigue is a subjective state, and yet objective standards such as the New York regulations now may have an evidentiary role. Juries thus may be asked to resolve an issue that remains hotly debated in the medical community, that is, can a resident who has worked 24, 36, or 50 hours provide quality care? B. Alternate Theories of Liability In addition to standard allegations of negligence, plaintiffs may rely upon other legal doctrines to establish liability in resident fatigue cases. 58

Fall v. White, 449 N.E.2d 628, 635 (Ind. App. 1983). See also Perkins v. Walker, 406 N.W.2d 189 (Iowa 1987); Schrempf v. State, 66 N.Y.2d 289, 487 N.E.2d 883, 496 N.Y.S.2d 973 (1985).


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1. Violation of Statutes or Regulations as Establishing Negligence In New York, or any other state that subsequently enacts regulations or statutes governing resident hours, a violation of such a regulation may support a finding of negligence,59 even absent any other evidence of negligence.60 Plaintiffs would contend that residents working after their statutorily allotted shifts do so at their own peril. Thus, if a resident, under such circumstance commits an error in management or has a surgical complication, this constitutes "statutory negligence." Violation of a statute or regulation will support an inference or a presumption of civil negligence if the harm is of the type that the statute was designed to prevent61 and the statute was intended to protect a class of persons of which the plaintiff is a member.62 The facts of the Zion case and the ensuing Grand Jury findings leave no doubt that the regulations were designed to protect patients from the clinical errors of overtired residents. Although the debate about relegating residents to "shift work" continues, the intent of the New York regulations is clear. An injured plaintiff in that state may have a strong case for negligence if a resident, working beyond a designated call schedule, commits even a seemingly excusable error. Once a given statute or regulation is found applicable to an allegation of civil negligence, the court must determine its procedural effect. The three possibilities include the following: (1) negligence per se— establishing a violation of the regulation establishes liability for acts or omissions in violation thereof;63 (2) rebuttable presumption of negligence— the defendant is allowed to show that, although the statute was technically violated, the standard of due care for management of the patient was fol59

60

61

62

63

For purposes of the doctrine of statutory negligence, violation of a state regulation is equivalent to violation of a statute. See Koll v. Manatt's Transp. C o . , 253 N.W.2d 265 (Iowa 1977) (violation of state and federal OSHA standards); Beals v. Walker, 98 Mich. A p p . 2 1 4 , 296 N.W.2d 828 (1980) (workplace safety regulations). Restatement (Second) of Torts §§ 286-288 (1984). A court may adopt as the standard of care a statute or regulation if it is found that it was designed, in whole or in part, to protect a class of persons which included the plaintiff, to protect the particular interest which has been invaded, to protect against the kind of harm which has resulted and to protect against the particular hazard from which the harm resulted. J. SMITH, HOSPITAL LIABILITY § 4.03[2] (1988). Landeros v. Flood, 17 Cal. 3d 399, 551 P.2d 389, 131 Cal. Rptr. 69 (1976) (physician failed to report battered child syndrome in spite of statutory requirement to do so; child sustained additional injuries); Batteast v. Wyeth Labs., I n c . , 172 Ill. App. 3d 114, 526 N.E.2d 428 (1988). Knockum v. Amoco Oil C o . , 402 So. 2d 90 (La. A p p . 1981) (protection afforded to all persons lawfully on premises injured in explosion, not just customers of gas company); Cucalon v. State, 103 Misc. 2d 808, 427 N.Y.S.2d 149 (Ct. Cl. 1980) (psychiatric hospital failed to conform with requirement that female patient being transferred to another part of facility be accompanied by a female; male guard raped patient). Thelen v. St. Cloud Hosp., 379 N.W.2d 189 (Minn. A p p . 1985); McRee v. Raney, 493 So. 2d 1299 (Miss. 1986). See also Restatement (Second) of Tons § 288B (1984).

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lowed;64 or, (3) evidence of negligence—violation of the statute is regarded as any other piece of evidence, no special weight is accorded it in determining if the defendant was negligent.65 Obviously, the plaintiff will argue for the first alternative and the defendant for the third. Given the strong opposition to the New York regulations and the ACGME recommendations by a large segment of the medical establishment,66 the difficulty and expense of implementing them, and the reluctance of other states to follow suit, the best option would be to treat a regulatory violation as evidence of negligence, but permit and require a thorough evaluation of the surrounding circumstances. 2. The ACGME Guidelines as Evidence of Negligence Residency programs in all states will be subject to any regulations promulgated by the Residency Review Committees of the ACGME. As noted above, all of the primary patient care specialties are subject to specific restrictions, or, in the case of the surgical subspecialties, have been given a mandate to ensure that overly fatigued residents not treat patients. The admissibility and the procedural effect of these guidelines could become an issue in malpractice litigation, particularly in cases similar to those described in the above examples. Courts generally admit the guidelines of a professional organization as direct evidence of the standard of care.67 For policy reasons, courts are anxious to allow juries to have access to the collective expression of a standard of care as set out by the defendant's peers. Most courts would agree that testimony that demonstrates a transgression of these regulations 64

65

66

67

California law holds that violation creates a presumption of negligence, which may be refuted by an adequate justification. Salinero v. Pon, 124 Cal. App. 3d 120, 177 Cal. Rptr. 204 (1981); Byrne v. City and County of San Francisco, 113 Cal. App. 3d 7 3 1 , 170 Cal. Rptr. 302 (1980) (stating that the presumption of negligence which exists by virtue of the statutory violation may be rebutted if the violator shows that he or she did what might reasonably be expected of a person of ordinary prudence, who desired to comply with the law). Professional standards are determined with respect to several sources: . . . Statutory provisions. These include such matters as the conditions of participation under Medicare, local statutes, and local health codes. Very often detailed standards of behavior are found in these sources and although they do not conclusively establish what the customary practices are, they will carry great weight with a jury, which in the end, must determine from all of the evidence placed before it what the customary practice is. MACDONALD, MEYER, & ESSIG, supra note 5 5 , § 11.02[3][a][2]. See also Zeni v. Anderson, 397 Mich. 117, 243 N.W.2d 270 (1976); Distad v. Cubin, 633 P.2d 167 (Wyo. 1981). "Certainly the continuity of patient care will suffer from the imposition of regulations such as those existing in New York and being considered by legislatures across the country." Condon, Resident Hours-Only Work, 124 ARCH. SURG. 1121, 1122 (1989). "Professional standards are determined with reference to several sources: . . . The prescriptions of various professional groups and societies. These include the standards established by various credentialing boards and professional organizations." MACDONALD, MEYER, & ESSIG, supra note 5 5 , § 11.02[3]. See also Thornton v. Mahan, 423 So. 2d 181 (Ala. 1982).


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should be admitted as evidence of negligence, but that such a violation would not support an assertion of negligence per se or even a rebuttable presumption of negligence. Thus, in the above examples, the credibility of the plaintiffs argument that permitting fatigued residents to continue to function constituted negligence might be bolstered by the ACGME guidelines.


3. The Common-Knowledge Doctrine When the error, complication, or misdiagnosis constitutes an obvious violation of any reasonable standard of due care, the courts permit laypersons to rely upon their "common knowledge" to evaluate a defendant's conduct.68 Occasionally, when the matter is equally within the knowledge of the lay public and the medical experts, courts allow juries to evaluate obvious bad results and infer negligence, in the absence of any expert testimony. Some courts have even expanded the doctrine to allow invocation of the common-knowledge doctrine when juries are evaluating more complex procedures69 or omissions of the medical staff.70 In the three examples described above, the plaintiff would be anxious to invoke the common-knowledge doctrine to support a contention that common sense dictates that exhausted people function poorly. The universally unpleasant experience of sleep deprivation would be familiar to all jurors, who would readily believe that judgment is impaired by fatigue. If a plaintiff needed only to convince the jury that tired residents make more mistakes than alert ones, and that it is therefore negligent to allow tired residents to work, the burden of proof becomes almost trivial. Even the medical establishment has, in principle, arguably conceded the applicability of the common-knowledge doctrine: "[M]any of the groups responsible for regulating graduate medical education programs will continue to characterize the problems (of resident fatigue) as minor and the risks to patients as few . . . but these positions will prove to be weak current among the general public, whose common sense tells them otherwise."71

68

69

70

71

J. SMITH, supra note 60, § 4.03[1]; Cubinsky v. Doctors Hosp., 139 Cal. A p p . 3d 3 6 1 , 188 Cal. Rptr. 685 (1983); Juhnke v. Evangelical Lutheran Good Samaritan Soc'y, 6 Kan. App. 2d 744, 634 P.2d 1132 (1981); Washington Hosp. Center v. Martin, 454 A.2d 306 (D.C. App. 1982); Oswald v. LeGrand, 453 N.W.2d 634 (Iowa 1990); Toppino v. Herhahn, 100 N . M . 564, 673 P.2d 1297 (1983); King v. Williams, 276 S.C. 478, 279 S.E.2d 618 (1981); Walker v. Southeast Ala. Medical Center, 545 So. 2d 769 (Ala. 1989); Rudeck v. Wright, 218 Mont. 4 1 , 709 P.2d 621 (1985). See Pry v. Jones, 253 Ark. 534, 487 S.W.2d 606 (1972) (when patient's ureter was damaged during hysterectomy, no expert testimony was required to establish standard of care, even though procedure was complex and ureter was in proximity to operative field). Clapham v. Yanga, 102 Mich. App. 4 7 , 300 N.W.2d 727 (1980) (failure to perform pregnancy test on syncopal 14-year-old); Totten v. Adongay, 337 S.E.2d 2 (W. Va. 1985) (failure to diagnose broken wrist). Imperato, supra note 10, at 26.

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C. Potential Parties Defendant The final issue addressed in this section of the article is who bears responsibility for the acts of malpractice committed by fatigued residents— the hospitals, the resident, or the residency program director?


1. Liability of the Hospital Under the doctrine of respondeat superior, hospitals are vicariously liable for the actions of physician employees acting within the scope of their employment. Because interns and residents are hospital employees, if a resident's care is ruled to be negligent, the hospital is liable.72 If residents are required to function outside the scope of any applicable regulations governing work hours, the hospital, which has a duty to enforce these regulations, may be held liable for the employee's negligence. A more difficult question is whether, and to what extent, hospitals have an independent duty to adopt and implement their own regulations limiting resident hours. Courts are increasingly imposing upon hospitals an obligation to formulate and enforce policies that protect the health and safety of their patients.73 Long past is the era when hospitals provided a bed and meals and the staff physicians had all the responsibility, and liability, for patient care. In addition to vicarious liability for employee negligence, hospitals now have imposed on them a direct, corporate liability to supervise the quality of nearly all aspects of patient care. For example, hospitals are required to investigate the background of all staff physicians and are pre-

72

73

"Hospitals [are] deemed liable under the doctrine of respondeat superior for the negligence of their residents." J. SMITH, supra note 60, § 3.01. See also Shepard v. Sisters of Providence, 89 Ore. A p p . 579, 750 P.2d 500 (1988); Cornell v. Ohio State Univ. Hosps., 36 Ohio Misc. 2d 2 5 , 521 N.E.2d 857 (Ct. Cl. 1987). MACDONALD, M E Y E R , & ESSIG, supra note 5 5 , § 11.01 [2]; J. SMITH, supra note 60, § 3 . 0 1 ; Hill v. St. Clare's Hosp., 67 N.Y.2d 7 2 , 490 N.E.2d 823, 499 N.Y.S.2d 904 (1986); Fridena v. Evans, 127 Ariz. 5 1 6 , 622 P.2d 463 (1980); Bost v. Riley, 44 N . C . App. 638, 262 S.E.2d 391 (1980); Elam v. College Park Hosp., 132 Cal. App. 3d 332, 183 Cal. Rptr. 156 (1982); Camacho v. Mennonite Bd. of Missions, 703 P.2d 598 (Colo. A p p . 1985); Alexander v. Gonser, 42 Wash. App. 234, 711 P.2d 347 (1985). See also Holton v. Resurrection Hosp., 88 Ill. A p p . 3d 655, 410 N.E.2d 969 (1980); Classen, Hospital Liability for Independent Contractors: Where Do We Go from Here?, 4 0 ARK. L. REV. 469 (1987); Mobilio, Hospital Corporate Liability: Toward a Stricter Standard for Administrative Services, 36 S.C.L. REV. 597 (1985); Mulholland, The Corporate Responsibility of the Community Hospital, 17 U . TOL. L. REV. 343 (1986); Rosoff, The Business of Medicine: Problems with the Corporate Practice Doctrine, 17 C U M B . L. REV. 4 8 4 (1987). In the case of hospitals, the Joint Commission on Accreditation for Healthcare Organizations (JCAHO) places ultimate responsibility for the quality of patient care on the hospital governing board. JCAHO, ACCREDITATION MANUAL FOR HOSPITALS § 47 (1988).



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sumed to have constructive notice of any deficiencies, lawsuits, or other problems affecting the competence of these individuals.74 Moreover, hospitals must have in place a procedural mechanism for barring incompetent physicians from working at their institutions. In light of this expanded duty to "supervise patient care," there might be imposed on hospitals a direct obligation to implement and monitor appropriate limitations on resident hours. This may encompass a duty to go beyond the ACGME recommendations, especially in the area of the surgical subspecialties, where only a nebulous mandate exists. Surely, if a hospital is required to ferret out and banish incompetent staff physicians, it should be obligated to implement a work schedule for employee physicians to ensure that fatigued residents do not endanger patients. Imposition of such a burden would not be trivial, as shown by the $254 million cost of implementing the changes in New York. But it is an inadequate defense to a charge of substandard care to argue that the appropriate care was too expensive. 2. Resident-Physician Liability Many residents, while welcoming the prospect of being relieved of some of the non-physician tasks with which they are traditionally saddled, are uncomfortable with the prospect of shift work, especially if this deprives them of the opportunity to operate on patients they have admitted or to follow patients through the course of acute problems. Thus, while hospitals would have a strong monetary incentive to oppose or delay enforcement of regulations on resident hours, residents have a professional incentive to violate or ignore such rules. In addition, at least in the specialty of surgery, residents who complain may perceive themselves to be vulnerable to being cut from the program. Thus, there is an added incentive to ignore any limitations on hours, especially if exhorted to do so by a senior resident. The question thus arises—assuming a hospital has instituted measures to limit resident hours, can the liability be shifted to the resident if there is a knowing violation, thereby absolving the hospital of liability? The answer is likely no for two reasons. First, if a policy of limiting resident hours is deemed necessary by the ACGME, hospitals must be given every incentive to implement and enforce regulations, and a shift of liability to the resident would thwart that goal. Second, it is well established that employers are responsible for the

74

J. SMITH, supra note 60, § 3.03[2]; JCAHO, supra note 73, §§ 111 et seq.; Sibley v. Board of Supervisors of La. State Univ., 477 So. 2d 1094 (La. 1985); Roberts v. Stevens Clinic Hosp., Inc., 345 S.E.2d 791 (W. Va. 1986).

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negligent acts of their employees, even when those actions violate a regulation of the employer.75 The resident might, however, be found negligent for continuing to function in spite of sleep deprivation.76 Such malpractice claims continue to follow residents through their attempts to become board certified and obtain licensure.77 Accordingly, potential liability could prove a significant incentive for compliance with regulations. The sobering prospect of liability for any mistakes made during "after hours" work might deter residents from ignoring such rules. The professional and personal degradation experienced during malpractice litigation likely will deter residents from risking lawsuits, even if there is no personal financial liability. D. Liability of Residency Program Directors The ACGME regulations will most likely charge the residency directors with enforcement of the RRC recommendations. Heretofore, residency program directors generally have not been named as parties in lawsuits merely by virtue of their position as such. This may change, however, in light of the ACGME regulations, and the active role of program directors in the controversy surrounding these new rules. Thus, residency program directors may find themselves named as defendants in all litigation involving allegations of resident negligence in this context. Moreover, residency program directors may be found liable for any discrepancy between the ACGME standards and any scheduling practices that lead to resident negligence. 75

76

77

" I f the other factors indicate that the forbidden conduct is merely the servant's own way of executing an authorized purpose, the master can not escape liability no matter how specific, detailed and emphatic his orders may have been to the contrary." W. PROSSER & P. KEETON, T H E LAW OF TORTS § 70 (5th ed. 1984). See also Ohio Farmers Ins. C o . v. Norman, 122 Ariz. 330, 594 P.2d 1026 (Ct. App. 1979) (employer liable for unauthorized trash burning by employee); Marbury Management, Inc. v. Kohn, 629 F.2d 705 (2d Cir.), cert. denied, 4 4 9 U . S . 1011 (1980) (stock brokerage trainee represented self as broker and portfolio manager); Perez v. Van Groningsen and Sons, 41 Cal. 3d 962, 719 P.2d 676, 227 Cal. Rptr. 106 (1986). A parallel situation involves the requirement for calling in specialists when the problem or illness is beyond the competence of the treating physician. " T h e failure to refer a patient to the appropriate specialist when reasonably medically indicated unquestionably constitutes a breach of the standard of care." Phillips v. United States, 566 F. Supp. 1, 14 (D.S.C. 1981) (family practice physician failed to refer patient to pediatric cardiologist); Sewell v. United States, 629 F. Supp. 448 (W.D. La. 1986) (back pain—internist consulted rheumatologist but not orthopedist or neurosurgeon about patient with spinal osteomyelitis). See Health Care Quality Improvement Act of 1986, 42 U.S.C. §§ 11101-11152 (Supp. 1986); 45 C.F.R. Pt. 60 (1989). This Act and the federal regulations established the National Practitioner Data Bank for Adverse Information on Physicians and other Health Care Practitioners. The Act requires reporting to the data bank on all settlements and judgments paid by insurers on behalf of physicians. There is no exception in the law for residents, so that any malpractice suit won or settled against a resident, or in which a resident is named, will be reported to the data bank. Hospitals granting privileges to residents upon completion of their training will be required to obtain this information from the data bank.


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CONCLUSION The debate regarding limitation of resident hours continues. Practical and financial considerations, as well as philosophical opposition to altering the current on-call practices, render imposition of a uniform standard for maximum duration of on-call schedules a difficult goal to achieve. Yet, significant potential for malpractice liability exists within the current system. One of two courses may help to resolve the problem. Either all residency programs in all specialties should be required to conform to the same quantitative requirements regarding residency work hours, or the "objective" standards, such as the ACGME recommendations and the New York regulations, should be abandoned in favor of a more general guideline, such as now exists for the surgical subspecialties. It is certain that with the publicity surrounding the Zion case and the continuing attempts to legislate work hours, health care consumers are becoming increasingly aware of the potential errors that can be made by fatigued physicians. Perhaps it would be preferable to abandon attempts to regulate a system as complex as medical education and allow the public to ensure that they will be protected from the errors of fatigued residents by relying upon the existing malpractice system as an incentive to ensure quality care.

Medical Negligence in Military Hospitals.

Medical Negligence in Military Hospitals.

Medical Negligence in Military Hospitals.

Informed consent in California. Latent liability without 'negligence'.

Medical Negligence in Military Hospitals: REPLY.

Medical Negligence in Military Hospitals: Reply.

Liability and compensation independent of medical negligence: the new Swedish system.

Negligence liability for transfusion-associated AIDS transmission. An update and proposal.

OBLIGING SURGEONS TO ENHANCE: NEGLIGENCE LIABILITY FOR UNCORRECTED FATIGUE AND PROBLEMS WITH PROVING CAUSATION.

Negligence speaking for itself.

Medical negligence litigation: the need for reform.

Effects of Expanded California Health Coverage on Hospitals: Implications for ACA Medicaid Expansions.

Medical negligence.

Professional Liability for Forensic Activities: Liability Without a Treatment Relationship.

Negligence and the unborn child.

Negligence and forceps delivery.

The education of traditional Japanese (Kampo) medicine: surveys of training hospitals and residents.

Doctors and medical negligence.

"Employers' liability for contagious disease".

Seat belts and negligence.

Fiddling with medical negligence.

Doctors and medical negligence.

A victim of AIDS--or medical negligence?

Malpractice and negligence.