R E S I D E N T S ’ P E R S P E C T I V E
decisions ruled that the resident did not have
to meet the higher standard of attending-
level staff. These rulings were based on a
legal precedent that is referred to as “the
captain of the ship theory.” This notion,
specific and prudent guidelines then leads to
the question of damages.
oversight of the trainee’s competence to
practice medicine. The naming of other indi-
viduals in a lawsuit brought on primarily by
the actions of a resident has 2 components:
the failure of the institution to supervise one
of its agents and the failure to provide ade-
quate training.
The courts, having established both a res-
ident’s duty to treat a given individual and
finding a deviation from the standard of care,
arethenobligedtoassesswhetherthepatient
isentitledtodamages. Thepatientmustprove
that there was an injury, the third criteria for
negligence. Thepatientorplaintiffmustprove
specifically that there was a loss of life, phys-
ical injury, or deterioration of the patient’s
quality of life. Emotional damages may also
be compensable in some jurisdictions. With-
out damage or injury, there are no grounds for
negligence.
The fourth criterion is proximate cause or
causation. This concept means that there
must be an injury incurred by the patient and
that this injury was the result of direct negli-
gence by the physician. Even if the physician
fails to meet the standard of care or the duty
to treat, the criteria for malpractice have not
been met if an injury was not incurred by the
patient as a result of this negligence. These 4
criteria serve as the foundation for health
care malpractice in the United States.
plainly stated, is that the supervising attend-
ing physician is ultimately responsible for the
actions of those whom he or she oversees
and trains. This legal precedent also allows
for individuals at various stages of training to
be assessed and compared by using a lesser
standard to judge their performance. The
idea that patients should then expect a lesser
level of care from individuals in medical train-
ing, although supported in many rulings in
earlier litigation, has quickly been eroded by
scores of cases that have been adjudicated
over the past 2 decades. Most importantly, in
Pratt v Stein7 the courts held that a resident
who endeavors to undertake specialty train-
ing and is employed by a hospital to deliver
care in their field must be judged against the
same standard that is used to judge the
The failure to provide adequate supervi-
sion is divided into 2 separate parts: when
the supervising staff is present at the bed-
side of the patient being cared for and when
the supervising staff is at a remote location.
The first situation is the most common in the
practice and training of emergency medicine
residents and is most pertinent to this dis-
cussion. The courts have routinely held that
the most senior person in attendance when
care is being administered is the party most
responsible to ensure the safety of the patient
and the adherence to the standard of care, as
it has been discussed. If the attending physi-
cian is physically present, then the plaintiff
will use a borrowed servant argument and
set forth that the negligent resident was act-
ing as both the agent of the hospital and as
the borrowed agent to the attending staff
irrespective of whether that attending staff
member is employed by the same institution.
The second situation, when the attending
staff is at a remote location, comprises the
majority of cases that are brought against
attending staff and institutions on the basis
of resident action. The supervising attending
physician is usually not present in many ward
and specialty units when residents are deliv-
ering care to their patients. Therefore, the
courts must decide whether the attending
staffandhospitalareliableifaresidentharms
a patient in the course of his or her daily work.
These cases normally revolve around the
definition of “appropriate standard of super-
vision.” Many residents are experienced and
can reasonably be expected to perform a pro-
cedure or make a medical decision on the
basis of their prior training. However, if their
actions ultimately lead to harm, then the
supervising attending’s level of supervision
is assessed. These cases are often decided
on an individual basis because of the great
variability of the skills and experience of the
trainee and the established supervisory
guidelines of an individual institution. This
weighing of particular circumstances relies
on the determination of the responsibility to
attending staff. The courts have come to view
the duty of medical trainees to their patients
as the same as those of the attending staff.
We must then conclude from recent case law
that residents in emergency medicine have a
duty to provide care that is similar in quality
to that provided by the attending staff.
The most complicated matter in trying
malpractice cases involving residents is the
role and responsibility of the resident’s
supervisor and employer as it pertains to the
actions of the resident. Plaintiffs often name
the attending physician and the hospital in
suits concerning the medically negligent res-
ident. The fundamental legal underpinnings
of the naming of the hospital and staff in con-
junction with the resident are from the gen-
eral rules of agency and specifically are de-
rived from the Restatement of Agency, as
interpreted by the courts. Thus, if an entity
puts itself forth as having any individual, ser-
vant, or agent in its employ, and if a third
party relies on that individual’s skills, then
the employer can be held responsible for lia-
bility resulting from the actions of those
agents. When a hospital or medical school
begins the process to establish a residency or
to accept medical trainees, it also accepts
the responsibility to train and supervise
those individuals. Specifically, a residency
will have a residency director who directly
oversees the individuals in their training pro-
gram. It is the established responsibility of
that individual to proffer guidelines of prac-
tice and behavior and to establish adequate
Next, the resident must fail to provide care
that meets the “standard of care,” the second
criterionformedicalnegligence, asithasbeen
established by the courts and our contempo-
raries. The most elementary way to define
the standard of care is to ask the question as
to whether a reasonable man of ordinary pru-
dence who possesses the same assumed
mental state, knowledge base, and skills of
the practitioner would have behaved in a sim-
ilarmanner. Oftenreferences, suchasRosen’s
Emergency Medicine: Concepts and Clinical
Practice,8 or regulations established by pro-
fessional organizations, such as the Joint
Commission on Accreditation of Healthcare
Organizations9 or ACEP, are used to define
the specialty’s standard of care. In addition,
medical experts may be called on to testify in
court whether the standard of care was met.
Byfailingtoprovidetheseexpectedstandards
of care and by failing to protect the patient’s
right not to be harmed, there exists a breach
of duty. The establishment of both the duty to
treat and the imperative to practice within
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ANNALS OF EMERGENCY MEDICINE 36:6 DECEMBER 2000
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