Dear Dr. Mossman:
In my residency program, we cover the psychiatric emergency room (ER) overnight, and we admit, discharge, and make treatment recommendations without calling the attending psychiatrists about every decision. But if something goes wrong—eg, a discharged patient later commits suicide—I’ve heard that the faculty psychiatrist may be held liable despite never having met the patient. Should we awaken our attendings to discuss every major treatment decision?
Submitted by “Dr. R”
Postgraduate medical training programs in all specialties let interns and residents make judgments and decisions outside the direct supervision of board-certified faculty members. Medical education cannot occur unless doctors learn to take independent responsibility for patients. But if poor decisions by physicians-in-training lead to bad outcomes, might their teachers and training institutions share the blame—and the legal liability for damages?
The answer is “yes.” To understand why, and to learn about how Dr. R’s residency program should address this possibility, we’ll cover:
• the theory of respondeat superior
• factors affecting potential vicarious liability
• how postgraduate training balances supervision needs with letting residents get real-world treatment experience.
Vicarious liability
In general, if Person A injures Person B, Person B may initiate a tort action against Person A to seek monetary compensation. If the injury occurred while Person A was working for Person C, then under a legal doctrine called respondeat superior (Latin for “let the master answer”), courts may allow Person B to sue Person C, too, even if Person C wasn’t present when the injury occurred and did nothing that harmed Person B directly.
Respondeat superior imposes vicarious liability on an employer for negligent acts by employees who are “performing work assigned by the employer or engaging in a course of conduct subject to the employer’s control.”1 The doctrine extends back to 17th-century English courts and originated under the theory that, during a servant’s employment, one may presume that the servant acted by his master’s authority.2
Modern authors state that the justification for imposing vicarious liability “is largely one of public or social policy under which it has been determined that, irrespective of fault, a party should be held to respond for the acts of another.”3 Employers usually have more resources to pay damages than their employees do,4 and “in hard fact, the reason for the employers’ liability is the damages are taken from a deep pocket.”5
Determining potential responsibility
In Dr. R’s scenario, an adverse event follows the actions of a psychiatry resident who is performing a training activity at a hospital ER. Whether an attorney acting on behalf of an injured client can bring a claim of respondeat superior against the hospital, the resident’s academic institution, or the attending psychiatrist will depend on the nature of the relationships among these parties. This often becomes a complex legal matter that involves examining the residency program’s educational arrangements, official training documents (eg, affiliation agreements between a university and a hospital), employment contracts, and supervisory policies. In addition, statutes and legal precedents governing vicarious liability vary from state to state. Although an initial malpractice filing may name several individuals and institutions as defendants, courts eventually must apply their jurisdictions’ rules governing vicarious liability to determine which parties can lawfully bear potential liability.
Some courts have held that a private hospital generally is not responsible for negligent actions by attending physicians because the hospital does not control patient care decisions and physicians are not the hospital’s employees.6-8 Physicians in training, however, usually are employees of hospitals or their training institutions. Residents and attending physicians in many psychiatry training programs work at hospitals where patients reasonably believe that the doctors function as part of the hospital’s larger service enterprise. In some jurisdictions, this makes the hospitals potentially liable for their doctors’ acts,9 even when the doctors, as public employees, may have statutory immunity from being sued as individuals.10
Reuter11 has suggested that other agency theories may allow a resident’s error to create liability for an attending physician or medical school. The resident may be viewed as a “borrowed servant” such that, although a hospital was the resident’s general employer, the attending physician still exercised sufficient control with respect to the faulty act in question. A medical school faculty physician also may be liable along with the hospital under a joint employment theory based upon the faculty member’s “right to control” how the resident cares for the attending’s patient.11
Taking into account recent cases and trends in public expectations, Kachalia and Studdert12 suggest that potential liability of attending physicians rests on 2 factors: whether the treatment context and structure of supervisory obligations establishes a patient-physician relationship between the attending physician and the injured patient, and whether the attending physician has provided adequate supervision. Details of these 2 factors appear in Table 1.12-14
