Are covering residents negligent for missing complications?

Dr. Jones is a dermatologic surgeon who oversees a recently established ASDS Cosmetic Dermatology fellowship program. He recently performed laser lipolysis on the thighs and knees of Mrs. Smith. Mrs. Smith is a healthy 50-year old women and is on no medications. Her cardiac and pulmonary function were both perfect.   The procedure, performed under tumescent local anesthesia, went smoothly and lasted less than three hours.  The patient left the office without any difficulty at 11:00 a.m. in the morning. At 4:00 p.m. that same day, Dr. Jones called Mrs. Smith to check on her post-operative course. She reported some discomfort behind one knee, but otherwise no difficulties. At 6:00 p.m., Dr. Jones called his already board-certified cosmetic dermatology fellow (Dr. Owens) and signed out to him. He discussed Mrs. Smith’s surgery with Dr. Owens.

Read more: What happens when residents' errors go unreported?

At 8:00 p.m., Mrs. Smith called Dr. Jones’ office with a concern about her surgery. Dr. Jones’ answering service immediately paged Dr. Owens, the covering physician. Dr. Owens returned the page within 15 minutes. In their discussion, Mrs. Smith described the discomfort and some tightness in her chest. Dr. Owens discussed the situation with Mrs. Smith, explained he is the “fellow” and reassured her that such findings are probably are unrelated to her treatment.  He suggested she try to go to sleep and call Dr. Jones in the morning.

The next morning, Mrs. Smith awakened to find she was short of breath. She immediately returned to Dr. Jones’ office. He immediately sent her to the emergency room. She was found to have a deep vein thrombosis behind her knee, multiple pulmonary emboli and was in congestive heart failure. She survived, but is now a cardiac cripple.  Had the deep vein thrombosis been evaluated the day before, it is possible the pulmonary emboli and heart issues may never have occurred.

Mrs. Smith brings a negligence cause of action against both Dr. Jones and the covering fellow, Dr. Owens. The basis of her case against Dr. Jones is that he was in a “joint venture” with Dr. Owens. After all, they cover each other’s practices every night. It should be noted that there are no payments made for the cross-coverage. This is just what dermatology fellows and residents do everyday.

Next: Is Dr. Jones liable?

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Is Dr. Jones liable?

The answer will generally depend on the acts of the on-call physician who allegedly committed the act of negligence, as well as applicable law. Imputing of Dr. Jones’ liability in this situation will generally turn on the degree to which the actions of the on-call physician were influenced or controlled by Dr. Jones. For example, if the on-call physician consulted with Dr. Jones and, in reliance on his judgment, injured Mrs. Smith, liability might be attached to both physicians. However, the mere fact that at various times different physicians are on-call for the same patients will not typically expose them to liability for the acts of a physician who was allegedly negligent during his or her on-call shift.

In Rossi v. Oxley, 495 SE2d 39 (Ga 1998), a patient sued a physician who participated in an on-call arrangement with other independent physicians. Each on-call physician billed patients directly for any services provided. The Georgia Supreme Court held that a joint venture did not exist between the physicians. Liability could not be extended on the basis of a simple on-call arrangement. The court noted that the mutual control element was not satisfied because the patient’s physician could not control the on-call physician’s judgment in treating the patient.

In addition, the court noted, even if it could be argued that both physicians “controlled” the patient, it would reject any vicarious liability for sharing of on-call duties for public policy reasons. A finding of liability, the court noted, would discourage the practice of on-call arrangements and therefore decrease the availability of quality care, increase costs or both.

In training programs, it is not unusual to have resident or fellow physicians “cover” for senior faculty physicians. In that situation, the resident employee physician is often paid a salary during their training program.  If the trainee physician errs, the supervising physician might share liability with the training physician. The laws of agency apply. The threshold question becomes one of whether the trainee physician is an agent of the supervising physician. If the trainee was performing an act that was in the scope of his “employment” as a trainee physician, and it was in the furtherance of this employment relationship, then he is an agent of the supervising physician. In a cause of action against both physicians for negligence, both physicians might share culpability. If the trainee undertakes actions that are not in his role as an agent, then the trainee himself will have sole liability.

If evaluating post-laser lipolysis patients is in the scope of Dr. Owens employment, and Dr. Owens performs a negligent act, then both Dr. Owens and Dr. Jones will share liability. If Dr. Owens performs an act not within the scope of his training, or his employment with Dr. Jones, then Dr. Jones will escape culpability. Dr. Owens will be solely liable. 

Clarification

I recently wrote a Legal Eagle column in which I discussed the legal principle that residency and/or fellowship directors may have liability for the actions of their residents/fellows. As I do in all Legal Eagle articles, I referred to a fictitious program director, as the possible defendant, and a fictitious scenario. There is never any connection between the fictitious name used in my articles and any real living person. However, I understand that may not be clear to all Dermatology Times readers.

Additionally, in the article, I specifically named the ASDS recognized Cosmetic Dermatologic Surgery Fellowship Program. It is now my understanding that some readers may have misconstrued this hypothetical example as a real scenario and I may have inadvertently offended some ASDS fellowship program participants. I can only apologize, and make it clear, that there was no offense intended. Nor did I intend to cast a negative light on the ASDS Cosmetic Dermatologic Surgery Fellowship Program. It should be known that I myself am privileged to be a fellowship director of both an ASDS Cosmetic Dermatology fellowship program and an ACGME recognized Micrographic Surgery and Cutaneous Oncology fellowship program. The same legal principles that would apply to a director of any of these programs may also apply to a program chairperson of a dermatology residency program.

David J. Goldberg, MD, JD