Medical Malpractice Lawsuits Involving Surgical Residents

Key Points

Question  Why do medical malpractice lawsuits targeting surgical trainees occur and how can they be prevented?

Findings  A database review of malpractice cases involving surgical residents found that 70% of cases involved elective surgery and 69% named a junior resident, while lack of direct supervision by attending physicians was cited in 55% of cases.

Meaning  These data should be used to educate surgical trainees in an effort to reduce the number of lawsuits involving trainees for the benefit of the trainee, the health care system, and the patient.

Importance  Medical malpractice litigation against surgical residents is rarely discussed owing to assumed legal doctrine of respondeat superior, or “let the master answer.”

Objective  To better understand lawsuits targeting surgical trainees to prevent future litigation.

Design, Setting, and Participants  Westlaw, an online legal research database containing legal records from across the United States, was retrospectively reviewed for malpractice cases involving surgical interns, residents, or fellows from January 1, 2005, to January 1, 2015. Infant-related obstetric and ophthalmologic procedures were excluded.

Exposures  Involvement in a medical malpractice case.

Main Outcomes and Measures  Data were collected on patient demographics, case characteristics, and outcomes and were analyzed using descriptive statistics.

Results  During a 10-year period, 87 malpractice cases involving surgical trainees were identified. A total of 50 patients were female (57%), and 79 were 18 years of age or older (91%), with a median patient age of 44.5 years (interquartile range, 45-56 years). A total of 67 cases (77%) resulted in death or permanent disability. Most cases involved elective surgery (61 [70%]) and named a junior resident as a defendant (24 of 35 [69%]). Cases more often questioned the perioperative medical knowledge, decision making errors, and injuries (53 [61%]: preoperative, 19 of 53 [36%]) and postoperative, 34 of 53 [64%]) than intraoperative errors and injuries (43 [49%]). Junior residents were involved primarily with lawsuits related to medical decision making (21 of 24 [87%]). Residents’ failure to evaluate the patient was cited in 10 cases (12%) and lack of direct supervision by attending physicians was cited in 48 cases (55%). A total of 42 cases (48%) resulted in a jury verdict or settlement in favor of the plaintiff, with a median payout of $900 000 (range, $1852 to $32 million).

Conclusions and Relevance  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.

The doctrine of respondeat superior, or “let the master answer,” states that an employer or principal may be held legally responsible for wrongful acts of an employee or agent who is acting within the scope of their employment.^1,2 In medical practice, this doctrine can result in hospitals or supervising physicians being liable for negligence and other wrongful acts performed by their attending physicians and clinicians they supervise.³ As a result, attending physicians may be held vicariously liable for the actions of the trainees they supervise.⁴

Quiz Ref IDIn the 1940s, a similar doctrine referred to as “captain of the ship” arose specifically for the field of surgery, holding supervising surgeons liable for all negligent acts that happened within their operating rooms. Although this doctrine is no longer followed, it has contributed to the widespread assumption, especially within surgery, that resident physicians are immune to medical malpractice litigation.⁵ It has been well documented that surgeons are at increased risk of both being involved in a lawsuit and having a lawsuit result in an indemnity payment (compensation paid to a plaintiff) compared with lower-risk specialties.⁶ It has been suggested that a general surgeon’s risk of facing a malpractice claim by 65 years of age may be as high as 99%.⁶

Although attending physicians are legally responsible for the care provided by the trainees under their supervision, there is no law that prevents residents from being named directly or indirectly in medical malpractice lawsuits. A review of medical malpractice claims data by Studdert et al⁷ in 2006 suggests that trainees are listed as defendants in 30% of malpractice claims. Knowledge of the circumstances surrounding these lawsuits could be used to educate trainees and potentially prevent similar cases from occurring in the future. Therefore, we aimed to review medical malpractice cases involving surgical trainees with the goal of understanding why these cases occur. These data may decrease the risk of similar suits from occurring in the future, which will benefit the trainee, the health care system, and, most importantly, the patient.

Westlaw (Thomson Reuters), a legal research tool containing records from legal databases from across the United States, was retrospectively reviewed. Westlaw contains more than 40 000 databases containing hundreds of thousands of court opinions, jury verdicts, and settlements from both federal and state courts from across the United States. Cases settled prior to filing of a lawsuit are not included. Westlaw contains unstructured summaries of select legal cases and written opinions of appellate and lower court judges. Case descriptions are not standardized but typically include the name of the case, defendants, plaintiffs, year of the event, year that the case closed, legal outcome, and a brief summary of the relevant background of the case. Westlaw is used widely by lawyers and legal aids for research and has been used in the past for medical malpractice research.^8-11 The data reported in this study were obtained from publicly available court records; therefore, the study is exempt from institutional review board approval and does not require informed consent.

A Boolean search strategy was used to identify medical malpractice cases with a jury verdict or settlement outcome involving surgical residents from January 1, 2005, to January 1, 2015. All medical malpractice cases involving a surgery or surgeon were screened using the search terms: surgical intern, resident, fellow, trainee, post-graduate year (PGY), surgery residency, first year, second year, third year, fourth year, and fifth year. Common syntax variations for each of these terms were also used (eg, 5th vs fifth year). The search strategy identified 277 potential cases, which were manually screened by 2 of us (C.A.T. and A.J.C.) to identify cases meeting inclusion criteria. No exclusion criteria regarding patient age were used; however, infant-related obstetric and ophthalmologic procedures were excluded. The flow diagram (Figure 1) demonstrates the individual exclusion criteria.

Residents were included regardless of PGY class (including interns and fellows); PGY-1s (including interns) and PGY-2s were defined as junior residents and PGY-3s or greater (including fellows) were defined as senior residents. To be included in the study the case had to cite a surgical trainee as being directly involved in the incident that led to the malpractice claim (ie, trainees could be involved in the breach of duty or as having contributed to the damages regardless of whether they were explicitly named as a defendant).

Data were collected on patient demographics, case characteristics, allegations, and outcomes. Cases were categorized by specialty (general, orthopedic, gynecologic, urologic, neurosurgical, oral, or otolaryngologic surgery) based on the category of the surgery and attending physician, regardless of the resident’s training program. Cases were further categorized by the period in which the alleged negligence occurred (preoperative, intraoperative, or postoperative). Discrepancies in interpretation of allegations were resolved by the consensus of at least 2 of us (C.A.T. and M.D.R.-Z.). Normally distributed data were expressed as mean (SD) and nonnormally distributed data were expressed as median and interquartile range. Descriptive statistical analysis was performed using JMP software, version 10.0.0 (SAS Institute, Inc).

During the 10-year study period, we identified 87 cases meeting the inclusion criteria. A total of 50 patients (57%) involved in the lawsuits were female, and 79 were 18 years of age or older (91%). Median patient age was 44.5 years (interquartile range, 45-56 years). Cases were identified from across the United States, with the highest number occurring in New York (n = 14) and California (n = 14), while 3 cases occurred in Texas and zero in Florida. All cases cited the surgical trainee as being directly involved in the malpractice claim and 55 cases (63%) named the trainees as one of the defendants. Among the cases that named a trainee as the defendant, 50 (91%) also listed additional nontrainee defendants and 5 (9%) named only the trainee. A total of 10 cases (12%) named multiple residents as defendants.

A total of 61 cases were elective procedures (70%), with general surgery being the most common specialty involved (Figure 2). Among general surgery cases, the most common procedure was cholecystectomy, although it was only cited in 6 of the 47 cases. Although 26 of all 87 cases (30%) involved urgent or emergency procedures, 21 of the 47 general surgery cases (45%) were emergency or urgent procedures. Among the 18 orthopedic cases, 14 involved an elective extremity procedure. A total of 5 orthopedic cases (28%) involved a delay in diagnosis of compartment syndrome. Six of the 11 gynecologic cases involved hysterectomies.

Quiz Ref IDAcross all cases, nonoperative decision making errors and injuries were cited in 44 cases (51%), intraoperative errors and injuries were cited in 34 cases (39%), and both nonoperative decision making errors and injuries and intraoperative errors and injuries were cited in 9 cases (10%). Quiz Ref IDFurther stratification of the 53 nonoperative decision making errors and injuries demonstrated that 19 errors and injuries (36%) occurred in the preoperative setting and 34 (64%) occurred in the postoperative setting. Although this distribution was also seen in general surgery cases, orthopedic and neurosurgical cases primarily involved preoperative decision making errors and injuries and gynecologic cases primarily involved intraoperative errors and injuries (Table). In only 2 cases was no procedure cited as part of the case brief. Both of these cases involved nonoperative trauma patients (1 transfusion reaction and 1 failure to follow up on a low hemoglobin value).

Failure of the surgical trainee to evaluate the patient in person was cited in 10 cases (12%). For example, 1 case involving an elective orthopedic procedure that resulted in compartment syndrome cited that the nurse paged the resident regarding the patient’s increasing pain overnight. However, the resident did not evaluate the patient in person until the next morning and instead the pain team responded and increased the dose of pain medications, potentially delaying the diagnosis. Another case cited a resident who was “home in bed” prescribing additional pain medication after a neurosurgical procedure, instead of examining the patient. Quiz Ref IDA lack of direct supervision by attending physicians (ie, failure to be present for the evaluation or management in person) was cited in 48 cases (55%). This lack of supervision often involved failing to notify an attending surgeon of a patient’s deteriorating condition.

In 10 cases (12%), the attending physician’s failure to appropriately supervise part of an operation in person was cited. In all but 1 of these cases the lack of supervision occurred before 2005, but all 10 cases resulted in a payout in favor of the plaintiff. One case involving an anastomotic leak cited that it was unclear if the attending physician “was even present for the procedure,” while another case involving a fellow cited the attending physician’s lack of supervision during closure as contributing to wound complications. Three cases claimed that intraoperative injuries were the result of residents becoming anatomically “lost” without an attending physician present. Poor supervision in the operating room despite an attending physician being present in person was rarely cited (2 cases).

Claims of failure to obtain proper informed consent were cited in 18 cases (21%) but only 3 cases cited resident involvement in the lack of obtaining consent. These cases involved the patient not knowing that a resident would be performing a significant portion of the operation. One case involved a patient who initially consented to a resident placing an intravenous line and then “withdrew her consent due to pain.” According to the claim, the resident continued to try to place the intravenous line, causing further pain. Although the intravenous placement was not found to be the cause of her complication (anastomotic leak), the court found that the resident was negligent in touching the patient without consent. The remainder of the cases that cited lack of informed consent involved lack of discussion regarding complications.

Claims related to documentation were cited in 13 cases (15%). Lack of documented physical examination was a common example that was cited and was often used to imply that a physical examination had not been performed. In addition to lack of documentation, lack of clarity or inconsistency in the operative dictations was also cited. In addition to lack of documentation, 1 case cited a resident documenting a plan to obtain a wound culture, but failing to do so. Lapses in communication between caregivers were noted in 9 cases (10%). Most lapses in communication involved communication between residents and staff. Multiple cases cited residents who were “night float” (a system in which daytime physicians are relieved by a night team that takes care of patient-related tasks) or “cross covering” (a system in which other physicians manage patients when the primary physician or team is not available), as well as having a high census of patients, as potentially contributing to the malpractice claim. None of the cases documented an error during a hand-off or transition in care. In addition the common practice of consulting with an attending physician by telephone was cited in 5 cases as not providing sufficient supervision.

Quiz Ref IDLevel of resident training was available in 35 cases, of which 24 (69%) named a junior resident (PGY-1 or 2) and 11 (31%) named a senior resident (PGY-3 or higher, including fellows). Cases involving junior residents often heavily emphasized the novice training level of the resident during the testimonial. This included statements such as “an oral surgery resident with 4 days of experience, had placed a nasogastric (NG) tube after the patient developed abdominal distention,” which was misplaced, and the patient was left “under the care of 1st and 2nd year residents exclusively for 4 days,” which presumably led to the delayed diagnosis of mesenteric ischemia. Most named junior residents (21 of 24 [88%]) were involved with lawsuits related to medical decision making.

The median time from injury to lawsuit resolution was 4 years (interquartile range, 3-6 years), with a maximum time of 14 years. Almost half of all cases (42 [48%]) resulted in a jury verdict or settlement in favor of the plaintiff (patient or their family). The range of payouts from these cases was $1852 to $32 million, with a median payout of $900 000. Cases that cited the trainee’s failure to evaluate the patient in person as a contributing factor often resulted in a verdict or settlement in favor of the plaintiff (7 of 10 [70%]) and had disproportionately high payouts (median, $1 203 000). Although lack of documentation was not often cited in the case briefs, it was occasionally used to demonstrate the lack of an examination having taken place (eg, “First year intern acting as night float increased the PCA [patient-controlled analgesia] with no record in the EMR [electronic medical record] of a physical exam”). The outcomes for the patients involved in the lawsuits were often poor, with 67 (77%) involving death or permanent disability.

Surgical residents are not immune from being involved in malpractice ligation. This review of the Westlaw database suggests that medical malpractice cases involving surgical residents disproportionately involved junior residents and resulted in a median payout of $900 000. In addition to the high payouts, the prolonged duration from incident to case closure (median, 4 years) likely profoundly affected the involved surgical trainees in the beginning of their careers. Although refining technical skills is an important aspect of surgical training, our data suggest that medical decision making errors are commonly cited in legal cases involving surgical trainees, particularly among junior residents. In addition, our review also highlights the importance of appropriate supervision by the attending physician as a target for education on litigation prevention. These data should be used to inform surgical training programs on the importance of developing effective methods of faculty supervision and communication between residents and attending physicians in an effort to reduce the number of lawsuits involving trainees.

Despite the fact that most malpractice cases are won by physicians, the negative consequences can be profound. Our results are consistent with those of previous reports, which suggest a mean time from injury to case closure of 5 years.⁷ Physicians can expect to spend 50.7 months (10.6%) of a 40-year career with an open malpractice case.¹² In addition to the financial costs, the personal costs to physicians are not trivial; the numerous emotional consequences of being involved in a malpractice lawsuit for practicing physicians are well documented.^12,13 Physician burnout is independently associated with a recent malpractice suit, even when accounting for all personal and professional characteristics.¹³ Given that 69% of surgical trainees already meet criteria for burnout,¹⁴ it is critical that we better understand legal cases involving surgical trainees and how such cases can be avoided in the future.

Surgical trainees were commonly involved in both nonoperative (preoperative or postoperative) decision making errors and injuries as well as operative injuries and errors. In our series, postoperative decision making errors and injuries were more common than preoperative injuries and errors. This finding could be owing to the fact that supervising attending physicians focus their oversight on preoperative and intraoperative periods, which are typically considered more critical, while trainees are left to manage postoperative patients more independently. Notably, multiple cases cited telephone calls with attending physicians as inappropriate forms of supervision and assumed that an in-person evaluation by the attending physician could have prevented the injury or error. Failure of residents to evaluate patients in person was also cited as a contributing factor in multiple legal cases. Regardless of whether the attending physician or the trainee failed to evaluate the patient in person, it was often assumed that in-person evaluation could have prevented the error, and this lapse was often heavily emphasized as contributing to why the injury or error occurred. Last, numerous variations by specialty were seen, including higher rates of operative errors in gynecologic cases. We recommend that these findings be used by program directors to educate residents and attending physicians in an effort to prevent medical malpractice cases involving surgical trainees.

A previous review of insurance level databases suggested that residents are named as defendants in 30% of medical malpractice claims.⁷ Our analysis included cases in which the residents played a crucial role in the malpractice claim, regardless of whether they were named as defendants. We thought this was important, as defendants may be dropped from cases as they progress through the courts and any significant involvement of a trainee in a case, even if he or she is not ultimately named as a defendant, likely has a profound emotional effect on the trainee. In addition, from the standpoint of the patient, we believed it was important to learn from all these incidents regardless of whether the trainee was held financially accountable. Although it was rarely cited, 1 excluded case cited not having a resident available to act as camera operator as contributing to why a common bile duct injury occurred. It has been suggested that involvement of residents may improve outcomes such as failure to rescue¹⁵ and our research is unable to capture positive involvement that surgical trainees have on patient care. Therefore, this nonepidemiologic study of medical malpractice cases involving surgical trainees should be used to drive resident education and not as a reflection of the potential outcomes that surgical trainees may have on patient care.

Communication and documentation errors are often cited as being responsible for a significant amount of medical errors, and prior studies have also found that breakdowns in communication between surgical attending physicians and other caregivers are often cited as contributing to malpractice lawsuits.¹⁶ Lack of communication with attending surgeons, and particularly in-person consultation, was cited in multiple cases in this study. At least 1 prior study suggests that residents frequently fail to obtain input from attending surgeons for management decisions during critical patient events, and these lapses appear to also contribute to the lawsuits against residents seen in this study.¹⁷ Although more research is needed to identify best practices regarding communication with residents,¹⁸ future work should focus not only on resident-to-resident hand-offs but also on communication skills between residents and attending physicians.

Our data suggest a median payout of $900 000, compared with previously published ranges of $10 000 to $250 000 depending on the surgical specialty.^6,19,20 Payouts for cases that go to court are often much higher than for cases settled prior to court.²¹ The rate of cases decided in favor of the patients or their families in our study was higher than in previous studies,⁶ but this outcome was likely owing to the nature of cases included in the Westlaw database. Westlaw contains a limited selection of cases that are dropped or settled before being filed in court; prior studies have suggested that 90% of malpractice cases are settled out of court and these cases often result in higher payouts.²² However, it is possible that the trainees’ involvement in the case contributed to these findings, as the role of the resident was often heavily emphasized in the case briefs. Last, the number of cases varied significantly among the most populous states, with New York and California having 14 cases each, Texas having 3 cases, and Florida having none. The lack of cases from Florida may be secondary to residents being afforded immunity and therefore not subject to personal liability for their negligent acts or omissions in the state of Florida.²³

The primary limitation of this study is the use of a legal database, which contains a nonrepresentative sample of cases from across the United States. Therefore, the presented data are not a population-based study. Publicly available data from the National Practitioner Data Bank,²⁴ which contains a more representative overview of medical malpractice, include 169 205 claims involving physicians between 2005 and 2014 and 1548 of these claims (0.9%) involved resident physicians. The data in Westlaw capture only a small portion of these claims. Given the lack of granularity that the National Practitioner Data Bank provides, these data were not included in the primary analysis but have been included in the eAppendix, eFigure, and eTable in the Supplement. Future work using merged national databases or data from insurance carriers is needed. Notably, cases settled prior to filing of a lawsuit are not included in the database. Thus, the cases in this study likely represent a small but unknown proportion of all claims filed nationally. Finally, case information provided by the database is not standardized and is written by lawyers and judges and, therefore, contains limited medical information that we consider pertinent to the case.

This review of malpractice cases involving surgical residents highlights the importance of perioperative management, particularly among junior residents, and appropriate supervision by attending physicians as targets for education on litigation prevention. These data should be used to inform surgical training programs on the importance of developing effective methods of faculty supervision and communication between residents and attending physicians in an effort to reduce the number of lawsuits involving trainees. In addition to having important implications for resident well-being and burnout, preventing medical malpractice lawsuits involving trainees benefits the health care system, and most importantly, the patient.

Corresponding Author: Martin Zielinski, MD, Department of Surgery, Mayo Clinic, 200 First Street SW, Rochester, MN 55905 (zielinski.martin@mayo.edu).

Accepted for Publication: May 8, 2017.

Published Online: August 30, 2017. doi:10.1001/jamasurg.2017.2979

Author Contributions: Dr Zielinski had full access to all the data in the study and takes responsibility for the integrity of the data and the accuracy of the data analysis.

Study concept and design: Thiels, Choudhry, Lindor, Habermann, Zielinski.

Acquisition, analysis, or interpretation of data: All authors.

Drafting of the manuscript: Thiels, Choudhry, Ray-Zack, Lindor, Zielinski.

Critical revision of the manuscript for important intellectual content: All authors.

Statistical analysis: Thiels, Ray-Zack, Bergquist.

Administrative, technical, or material support: Thiels, Lindor.

Study supervision: Thiels, Choudhry, Lindor, Habermann, Zielinski.

Conflict of Interest Disclosures: None reported.

Meeting Presentation: This paper was presented at the Annual Meeting of the American College of Surgeons; October 19, 2016; Washington, DC.

Additional Contributions: We thank the Mayo Clinic Department of Surgery and the Kern Center for the Science of Health Care Delivery as substantial contributors of in-kind resources to the project.