An Ongoing Dialogue Between Medicine and Law
It is no wonder why medical schools across the country are teaching their students more and more about medical malpractice suits and how best to protect themselves against them. As of 2014, in most states, liability for medical malpractice does extend to medical students at an important phase in their medical education, when they are getting hands-on clinical experience for the first time. And although in most cases, settlements are covered under the malpractice insurance that medical schools purchase for their students, it is theoretically possible, at least, that a student could be sued personally for amounts exceeding that malpractice coverage.
This trend may be changing, however. Several years ago, the introduction of a state bill in Arizona–which would essentially grant immunity to medical students who are practicing under supervising physicians during their medical school career–went into effect. This particular bill, unsurprisingly, spurred a series of intriguing articles from both the legal and medical community.
The Arizona State Bill
Arizona State Bill 1429 caused a fresh series of debates about this ongoing issue when it began its passage back in 2011. In this piece of legislation, student doctors practicing in Arizona are immune from being sued or named in a lawsuit if they are working under the supervision of a licensed healthcare professional, unless it can be proven that the student committed gross negligence in regards to basic patient care. This bill had strong backing, not surprisingly, from medical schools across the state. Kelsey Lundy, a lobbyist for a coalition of these school, noted that in the past this was almost never an issue, but gave an example of an osteopathic school there who had had students named in four separate malpractice suits in the past several years.
This is a huge issue, of course, both for the students named in the lawsuits and for the medical schools themselves: it can mean a black mark on the student’s career that can follow them long after they have graduated. It can make it more difficult for them to land a job or even obtain affordable malpractice insurance, a must for every physician. The practice of naming students in lawsuits can also incurs tens of thousands of dollars in legal cost to the school that must defend them.
SB1429 was not without its critics and, unsurprisingly, the largest group of critics was the Arizona Trial lawyers association, made up of attorneys who represent plaintiffs in court. Jon Hinz, a lobbyist for this very influential political action committee, noted that, “There is no reason to grant immunity to someone who is actually practicing healthcare as opposed to just studying it,” and added furthermore that, “Such immunity potentially provokes irresponsibility,” a claim which medical schools hotly deny.
Perhaps what is most interesting about this legislation is the series of posts that it sparked both in the medical and legal communities
Kevin Pho Weighs In
Dr. Kevin Pho, one of the best-known medical bloggers due to his website, KevinMD, weighed in on this issue when SB1429 was being discussed in the Arizona legislature and came out wholeheartedly in agreement with its passage.
The thrust of his argument is that the work that medical students do at this point in their careers is not independent or autonomous: instead, their actions are supervised and their orders countersigned by a working physician (whether that be an intern, resident or attending) whose license is, essentially, covering that students’ actions. Dr. Pho believes that because of the way this is set up, any liability should be on the shoulders of the supervising physician and the hospital where he or she is practicing.
Like the legislators who drafted the Arizona bill, Dr. Pho worries about the consequences of student malpractice suits, both for the students themselves and the medical schools trying to educate them. One aspect which has him particularly concerned is the effect it can have on the quality of medical education if schools, in response to the increased threat of suits, clamp down more tightly on their medical students and in the process interfere with the students’ ability to learn and gain valuable clinical experience on which to build their future careers.
Pho concludes that, “Injured patients do not benefit from suing medical students. If negligence occurs, a supervising physician will answer the charges and participate in the malpractice process. Leave the medical students alone and exempt them from malpractice suits.”
Two Litigators Respond
Dr. Pho’s blog post sparked two interesting responses from the legal community, both from lawyers with a long history in malpractice suits. The points they brought up were equally as important as those raised by the original post.
The Turkewitz Response
The first notable response to came from New York attorney Eric Turkewitz, who has extensive experience in malpractice. Turkewitz begins his post by quoting one of the questions that Pho asks in the previous article, “Why sue these doctors-to-be or young residents if there is a medical professional or hospital that is supervising, who will be liable for others’ conduct?”
Turkewitz proceeds to answer this question by noting that people who are named in a lawsuit are treated differently under the law than people who are named as “non-party witnesses”. He cites a crucial example: if a medical student who has made a mistake in the course of his practice (but is not named in a lawsuit) goes before an internal medical review to discuss the incident, in most states, what goes on in that review is protected by law–unless that student has been named as a defendant. He concludes that, “To answer the question of Dr. Pho, there are times when having a person added as a party to the lawsuit is benefits in the discovery of the truth.”
He cites other benefits of this legal action, including benefits to the plaintiff who will have legal access to the medical student even if they move out of state to pursue their careers elsewhere. (Defendants must participate in the litigation process, no matter where they are residing.) He even believes that there can be benefit to the students themselves, as most state laws allow them to offer opinions on the incident. He concludes that, when looking at the larger picture, students are often added to lawsuits because “the law treats a party to a lawsuit differently than someone who is merely an employee of the party.”
The Kennerly Response
Max Kennerly, in his blog post, responds to both Pho and Turkewitz when he adds that there other good reasons, besides the one mentioned by Turkewitz, to add students or residents to lawsuits. With Kennerly, these reasons focus on the problem of responsibility. In his extensive experience in medical malpractice lawsuits involving students or residents, supervising physicians will nearly always deny legal responsibility for patient’s injuries. This is especially true in cases of emergency medicine, which are often staffed by residents and students doing most of the exams and patient care: oftentimes, the supervising physician will not even be in the hospital at the time. He also notes that in many cases, the hospital itself where the care took place will try to evade responsibility for physicians practicing within its walls and refuse to even identify who was involved in the patient’s care; they also will try to say there is a difference between the hospital and the practice group operating within the hospital. He even cites cases where hospital, practice group, and supervising physician will delay admitting responsibility for the resident at all until the statute of limitations on the lawsuit has run out.
There is one common thread throughout these three blog posts. Like Turkewitz–and for that matter Pho–Kennerly expresses a distaste for involving medical students or residents in malpractice suits. He adds that, oftentimes, once the hospital and physicians groups have agreed to cooperate appropriately, that students/residents are usually dropped from the suit and that he has never heard of a case where a student had to pay money for the suit–that the cost is always picked up by the insurance company, the hospital or both.
This particular bill, and the responses from highly educated and experienced professionals in both the medical and legal communities, highlight the ongoing tensions and sometimes conflicting interests between allowing medical students, at this very early and important stage in their medical career, to gain clinical skills and learn their profession (even learning what it means to fail with a patient or make a mistake) versus the need of plaintiffs suing the hospital to have open access to information as to what exactly occurred during the patient’s course of care that led to the negative outcome to begin with.
Fischer, H. Bill:Medical Students not Liable for Malpractice. The Arizona Daily Sun. 2011.
Hashain, A. Saving Medical Students from Liability in the U.S. Journal of Pioneering Medicine.
2 (2). 2014.
Kennerly, M. It’s Legal Malpractice not to Sue Hospital Residents for Medical Malpractice.
Litigation and Trial Blog. 2011.
Pho, K. Medical Students Should not be Liable for Malpractice. KevinMD site. 2011.
Turkewitz, E. Should Residents and Students Be Sued in Medical Malpractice Cases?
The New York Personal Injury Law Blog. 2011.
An Ongoing Dialogue Between Medicine and Law