Medical students should not be liable for malpractice

Should medical students receive immunity from malpractice liability?

That’s an interesting question that’s raised in a bill from Arizona.

According to the Arizona Daily Sun,

State lawmakers are moving to keep patients injured by medical students from being able to sue them.

But proponents said that won’t leave victims without recourse.

SB1429, awaiting full Senate action, would spell out that students are not liable for malpractice if they are under the supervision of a licensed health care professional. The only way a student could be sued would be if a patient could prove by clear and convincing evidence that the student acted with gross negligence.

Kelsey Lundy, lobbyist for Midwestern University, said that, at one time, students were never named in lawsuits. But she said her school, which trains osteopaths, has had four of these suits in the last five years.

Anything that a medical student does is supervised and countersigned by a physician — whether it’s an intern, resident or attending doctor. If malpractice occurred, legal liability would fall upon the doctor who signed the order and the hospital where the event took place.

Suing a medical student — even if they’re dropped from the case, as many are — incurs considerable cost to the medical school, which must pay tens of thousand of dollars in legal fees in these instances.

And furthermore, merely being involved in a malpractice suit will follow the medical student, and potentially make it more difficult to find a job, or more expensive to obtain malpractice insurance.

At the osteopathic school cited in the article, which endured several such medical student lawsuits, I also wonder whether this will have a detrimental affect on education. Would the school, for instance, keep a tighter leash on its students, increasing supervision and potentially impede learning?

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 medical students alone, and exempt them from medical malpractice lawsuits.

 is an internal medicine physician and on the Board of Contributors at USA Today.  He is founder and editor of KevinMD.com, also on FacebookTwitterGoogle+, and LinkedIn.

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  • Anonymous

    Patients do not benefit from allowing medical students to participate in their care, and sometimes do not realize they have the right NOT to allow students to participate in their care.

    One of my family members had a poor outcome as a result of a student’s ineptitude and the physician’s inadequate supervision. No lawsuit, but we learned a lesson: from now on, students can practice on the family members of physicians, not on members of my family.

    • http://abnormalfacies.wordpress.com/ Jim

      I disagree with that statement, but can’t argue without knowing the specifics of your experience.

      Medical students have a lot to offer when it comes to patient care, often through helping patients understand their disease and helping them voice their concerns to their medical team (in fact many times, that’s all we can do).

      A student should know when their skill level isn’t sufficient to perform a task and raise this issue, or be sure to ask for guidance and not go it alone.

      • Primary Care Internist

        so when that student is a board-certified licensed physician, should they also only practice on family members of physicians?

        Every profession has a student phase, in which the only realistic practical learning experience is semi-independent in nature. There are student drivers, student teachers, social work interns, nursing students etc. How do you expect medicine to be any different?

        • ninguem

          Never could understand why people would go to a teaching hospital and then insist that no trainees be involved in their care.

          I would get patients like that on a fairly regular basis in my teaching days.

          • A Sarah

            ninguem: Because it’s the only nearby hospital with a level 3 NICU? Because it’s the one my insurance company recommended?

          • A Sarah

            By the way, ninguem, I’m not speaking for myself personally — My husband (who is not a doctor) was a medical student, and as I’ve said, I’ve had an excellent experience with a medical student. But also, if I’m in bad enough shape to have to go to a hospital, chances are I am not in a position to find out beforehand whether or not it’s a training hospital.

            My husband had a few parents request that he not perform procedures on their children (He is young-looking, probably looked like Doogie Howser back in his med school days!). He didn’t take it personally; he says he likely would have made the same decision had it been his own children.

    • A Sarah

      One anecdote. One of the most insightful practitioners I’ve ever seen was the medical student who took my psychiatric history one of the times that I was hospitalized as a young adult. She was the first person to offer any perspective on my situation; the counselors and psychiatrists had seen pathology where there was really just a confused, emotionally immature kid. I hope she is practicing and doing well.

      I am sorry to hear about your experience, Anonymous.

  • http://offwhitecoat.wordpress.com The Scrivener

    Full disclosure: I am a medical student.

    I would add to this post that in nearly every situation, the med student’s role is to learn, not to affect patient care. In fact, as a med student this is incredibly frustrating — our notes are ignored (residents write their own), we can’t put in orders. In operations, we retract and suction blood/saline out of the field. I made it through 5 weeks of gen surg, 10 weeks of surgical subspecialties, and 5 weeks of OB/GYN without touching a scalpel. It’s hard to see how anything a med student does could adversely affect patient care.

    Anonymous above, I’m very curious as to what happened to make you think your relative’s outcome was related to “student ineptitude.” But thank you for reminding us that patients have a right to refuse med students — I’ve been taught to always introduce myself as “the med student on the team” and ask the patient’s permission even before eliciting a chief complaint.

    Naming a med student on a suit sounds like a lawyerly tactic to get as many people involved as possible, regardless of the actual involvement of those people in medical decision-making.

  • Reply to anonymous

    “from now on, students can practice on the family members of physicians, not on members of my family.” – Anonymous

    Here’s a better idea. Why don’t we just stop having medical students, nursing students, interns and residents, period? Of course in a few years we’ll no longer have any well-trained doctors but that’ll be a problem for the future generations, not our problem now, right?

    • gjpearce

      you are right on! I will hook up with Practice Fusion at the latest moment (FALL 2012). I will collect my 44000 over 5 years. Then I will close up. I am the only provider of my surgical subspecialty within 20 miles. I guess everyone will be paying for gas and travel time and the nondrivers will have to hire a driver. Yes i am bitter. I am an old fashioned doc (my father was a GP who practiced out of our home), I have made house calls and I provide a cell number where patients can reach me 24 hours a day. I barely go on vacations.

  • Katherine

    Anonymous,

    Your statement “Patients do not benefit from allowing medical students to participate in their care” is entirely wrong. Patients DO benefit from having students involved in their care because today’s students are tomorrow’s doctors. We have a dismal future ahead of us if no one allows medical students to participate in care while they are learning. No, they shouldn’t be providing care alone in any circumstances, but what the real issue appears to be is lack of appropriate guidance and care from 1 single attending physician. Attending physicians or residents are ALWAYS in charge when students are rotating under them.

    Additionally, it is alarming at how much often people do not know the difference between a medical student and a resident. Residents are licensed physicians who often work autonomously and report to and are under the guidance (not direct supervision) of attending physicians. Medical students are not physicians yet and do everything (should do everything) under direct supervision of licensed physicians, as they are at the beginning of their clinical education.

    • http://advocateyourself.blogspot.com Cheryl Handy

      Katherine

      Please rethink your statement: “it is alarming at how much often people do not know the difference between a medical student and a resident.”

      Why on Earth would Joe Q Citizen need to know the differences? We just want to be treated. Most people really do not care about the physician or surgical training path.

      As long as the attending physician allows junior physicians (or physician-ettes) to be a part of the medical care team, it just doesn’t matter to patients (who agree to be in teaching hospitals). That is *precisely* why the attending is left holding the malpractice bag even when the kids grow up & leave the teaching hospital.

  • SarahW

    Who would agree to be treated by a student after that? Hands off, bud.

  • Med Student

    @ Anonymous
    Your and your family’s highly skilled physician was once a med student and resident themselves. So yes it does benefit patients for medical students to participate in their care because they are LEARNING. Mistakes will likely happen but as long as the supervising physicians are adequately teaching and monitoring their students, then most mistakes are avoidable. Negligent students and apathetic teachers should be held accountable. All doctors started from somewhere.

    • Anonymous

      I was personally injured by a “highly skilled” physician, so I am well aware that mistakes happen. I’m also aware that in a sizable number of cases of mistakes in medicine-land, the patient will be made to feel crazy, and blamed for a care provider’s shortcomings, no matter the evidence, no matter the opinion of other physicians. No one is held accountable in any meaningful way. even when there’s no threat of a lawsuit.

      • http://advocateyourself.blogspot.com Cheryl Handy

        No one can “make” us patients feel crazy or blame us for bad medical care. It is human nature for people to want to CYA. Docs are no different. But patients do not have to allow it to happen.

        You have the authority to tell a bad doc to get out of your hospital room. Don’t give the same docs the authority to label you.

        You can do many things short of suing a medical student. The best one is to speak to (or write) the supervising physician. Tell the med student’s teacher doctor what happened. That is how we all learn.

        Suing the medical student will not make him accountable. He has defense attorneys to help him with that!

        I agree accountability is important. That is why I am an advocate of “Sorry Works” type legislation where docs can say they are sorry and be honest with the patient about errors. And then those statements cannot be used against the doctor in litigation.

        • Anonymous

          In my case, I didn’t realize I’d been harmed until I sought a second opinion (after several of my friends begged me to do so). I also discovered my physician had lied to me repeatedly (her medical notes didn’t match the conversations we had, or the e-mail we’d exchanged).

          So, yes, I’d argue a physician made me feel it was my fault for being a bad patient (even though I was sure I followed her instructions, to the letter) and yes, crazy.

          My family never considered suing the medical student.

  • Smart Doc

    Any doctor entrapped into slave duty at an EMTALA should be malpractice non-liable.

    • http://advocateyourself.blogspot.com Cheryl Handy

      Smart Doc -

      Okay, I hope you are being silly. Why would a doctor be exempt from lawsuits when it is the *patient* who is protected from being dumped/sent away for lack of ability to pay?

      If you really thought examining & stabilizing an indigent ED patient was a bother, then you would not be a “smart” doc.

  • ninguem

    From the article linked:
    http://azdailysun.com/business/article_53a73da2-7d12-5216-9d3a-895c52cb6ff7.html

    “……..one case involving a physician assistant who was given the task of taking a patient’s history at a facility that screens mental health patients. That history, Halpern said, was supervised and countersigned by the supervising physician……..”

    “…….Halpern said the patient of that doctor was discharged and later involved in a crime, convicted, and is now suing Midwestern, all of the licensed practitioners who had any involvement with her — and the students ‘who had no authority to discharge her, no authority to order prescriptions, no authority to do anything’………………..”

    Am I reading this right? The psych patient commits a crime, and the psych patient / alleged criminal is trying to blame the doctors for his alleged criminal act?

  • http://futureoffamilymedicine.blogspot.com mdstudent31

    It is interesting how, within such a short amount of time, we can discuss/debate the expansion of nursing and the restriction of medical education.

  • Anonymous

    Sorry: there may be a societal benefits, but there is no benefit to the individual patient. And after this experience, I continue to avoid teaching hospitals.

    Out of curiosity: any of you ever allowed a medical student to perform a procedure for the first time on one of you, or your spouse, parent or child? Any nurses or other medical professionals ever seen a physician do this?

    • http://advocateyourself.blogspot.com Cheryl Handy

      In spite of my horrible experiences at a large teaching hospital, I prefer teaching hospitals. And yes, I have let and would let a medical (or nursing or dental) student perform procedures on me and my family.

      If you don’t like the teaching hospitals, I get that. And by all means don’t go to one.

    • http://zenfire.tumblr.com Zenfire

      I had a student perform his first frenulectomy on my baby son. I had my eyes operated on by a first year ophthalmology resident. When my wife had to have surgery it was a first year OB resident who did that. I’ve had medical students practice giving my knee injections on my perfectly normal knee.

      As a student and then resident, I did some of my first procedures on the head orthopedist at my hospital, the mother of my MICU attending, and two major donors whose names adorn wings of the hospital.

      Where do you think those in academic medicine go for their own medical care?

  • Medical student

    As a third year medical student I caught a potential lethal medication mishap that went unnoticed by the attendings, residents, pharmacists, and nurses. The resident told me that by speaking up after rounds were done that I saved this patients life. I am not trying to pat myself on the back but would like to point out that when medical students are only given 2 patients per day they have a lot more time to comb over every detail of the chart. If a med student makes a mistake the attending or resident should correct it before it ever affects the patient. Having medical students on a team can add value to patient care.

  • skeptikuc

    The question is: who is accountable when med students make negligent mistakes.

    If the answer is the student, then he should be liable.
    If the answer is the supervising physician, then he should be, and not the student.

    Kevin says “leave the med students alone.” Fine. Then supervising physicians must accept complete responsibility and accountability.

    This reminds me of the McMullin case from Indiana. The plaintiff clearly stated that she “did not want students touching her” The doctors of course ignored her and permitted a student to intubate her. The student, quite naturally, screwed up injuring her lungs.

    This was not a malpractice but battery case, and the Indiana Supreme Court in a mediocre decision from a legal formalist view, absolved the student==but not the doctors. (which perhaps was the morally defensible outcome)

    • Kevin

      “Then supervising physicians must accept complete responsibility and accountability.”

      They already do.

      Kevin

      • Matt

        Where is the statute that requires this? Is this just your belief or is this a universal fact? What’s to keep the supervising physician from saying “I didn’t authorize that action?”

        • http://advocateyourself.blogspot.com Cheryl Handy

          Matt -

          Supervising physician bears responsibility. Why should attorneys decline to name medical students? Decency on the part of the legal profession.

          We were law clerks and bottom of the letterhead associates. Partners gave us case files and told us to prepare documents. Smart partners reviewed our work. We were tired and stressed as we wrote briefs all night and then did bench trials the next morning. Attorneys should have some respect for the educational process of “getting in and swimming” before you are 100% ready.

          Moreover, there is no legal benefit to naming a medical student other than to harass the defendants and make your client happy. Plaintiffs attorneys have the hospital, surgeons, physicians who all carry enough insurance (and in some cases excess coverage). If need be, plaintiffs attorneys can try to get the docs’ personal assets. The student has no money.

          Finally, the student will get in more trouble when his supervising physician is sued then anything an attorney could do to him.

  • skeptikuc

    Ah, then why do we bother suing medical students at all? There are numerous court cases absolving doctors from liability when medical students screw up clear and obvious instructions.

    • Kevin

      “Ah, then why do we bother suing medical students at all?”

      Um, that’s the point of my piece. We shouldn’t be suing medical students, period.

  • L.

    “Ah, then why do we bother suing medical students at all? There are numerous court cases absolving doctors from liability when medical students screw up clear and obvious instructions.”

    When a student fails to comply with a doctor’s “clear and obvious instructions,” does it become a case of gross negligence on the part of the student, and does it, therefore, make the student culpable and absolve the supervising physician?

    Are physicians, alone, exempt from the code of “personal responsibility.” That is – own up to and take responsibility for your mistakes – and pay the consequences.

    It seems illogical that to say on the one hand that supervising physicians are responsible for the actions of their students, and on the other that if the student screws up, the supervising physician should not be held accountable because it was the student’s fault. You should not be permitted to have it both ways.

    I agree that medical students should never be sued unless there is “gross negligence.” But, how is that defined?

    There was a case I read about involving medical students who were told pointedly by a parent that they were not to do any more “clean catch” urine tests on their infant child (quickly stabbing a needle through the abdomen directly into the bladder to get a urine sample).

    Apparently it was being done by a parade of students for practice – and was no longer required for development or monitoring of the treatment plan. When one parent left for dinner and was relieved by the other, the students returned and did the test anyway. When the first parent found out – holy hell was raised. The dean of medicine descended immediately and removed the students from the rotation. No doubt to defuse the situation in the hope of avoiding a lawsuit. Apparently it worked. No one was sued.

    But – in what culture were these students being taught that they thought it was perfectly okay to ignore the withdrawal of consent for a procedure from a patient’s guardian?

    • Vox Rusticus

      More history is needed. Parents do not automatically have a right to rescind a medical order. Your own account suggests one or the other parent was present during the procedure. Was there a diversity in opinion even between the parents on what should be allowed?

  • just a patient

    To the person wondering why a reluctant patient would go to a teaching hospital, here are some reasons.

    1. that hospital might be the only one approved by their insurance plan

    2. the ambulance brings us there

    3. our personal doctor refers us to this great surgeon with tons of experience who impresses with his ‘meet and greet’ but doesn’t reveal that he will only start the operation then hand us over to trainees, before heading off to start another one.

    Yes, I did read the consent form at my hospital advising that they are a teaching facility stating “people in training and others may participate in your operation”. I’m curious who the “others” are. Maybe the real doctors.

    • Vox Rusticus

      1. Buy different and better insurance.
      2. Ask to be transferred somewhere else once stabilized
      3. Ask for a referral to a specialist that uses a non-training hospital, if that is so important.
      It seems you want things both ways, or at least to be passive unless it means participating in the teaching mission of a teaching facility. Life isn’t just one big tasting menu you get to pick from whenever it suits you.

  • PAULMD

    I hope you pre-meds are reading this stuff. You need to be informed about what awaits you.

    • Matt

      I don’t know why it would be a surprise to anyone that if they make mistakes and the result is harm to someone else, they’ll have to pay for that harm.

      • http://advocateyourself.blogspot.com Cheryl Handy

        PaulMD -

        Aww. Don’t ruin the dreams of wide eyed young physicians and physician-ettes with real world stuff yet.

        Not all attorneys think like Matt just like not all surgeons needlessly cut kids’ tonsils. I think Matt is just teasing us.

        Matt’s comment is absolutely wrong. Matt knows that mistake plus harm does not always equal money. Many of us (admittedly dissatisfied) patients and attorneys know that
        (1) sh*t happens in life,
        (2) some mistakes are honest and part of the risks assumed.

        The last thing we need is for medical students to be timid and scared the moment they are thrown in the pool. That is just plain counterproductive to learning anything.

  • http://advocateyourself.blogspot.com Cheryl Handy

    Many teaching hospitals have replaced the traditional medical school teaching model with the “hospitalist program model.”

    Example: A very capable medical student, fellow, resident examines the new Friday night patient who admits through the ED. The young doctor takes a textbook history and physical, speaks with family members and orders initial workup. The family and patient feel very safe and confident that appropriate care will be provided.

    But alas, Saturday morning arrives. And so does the hospitalist. Depending on the teaching hospital, the hospitalist (who is by the way *not* the student doc’s supervising physician) trumps the student. Confusion ensues. The patient is reassessed and a new workup (typically less expensive for the hospital and more triage focused) is ordered by the hospitalist.

    Problems? Oh yes.
    1. More lawsuits. The patient and family are now disengaged in the process and, therefore, more likely to sue someone if care goes south. Trust gone, good communication gone. If I don’t trust you and I can’t communicate with you, I am more likely to sue you (regardless of whether you are a medical student, hospitalist, nurse, hospital, anyone my medical malpractice attorney can fit on the summons).

    2. Less teaching. The value of a “teaching hospital” is obfuscated in the hospital administrators’ efforts to lower bottom line costs. Historically, teaching hospitals have used more resources per patient. Working hour restrictions and economics create fertile ground for hospitalists to replace medical students in large teaching hospitals. (Query: but then are the facilities really still “teaching hospitals”?)

    3. More Medicare readmissions within 30 days. The hospitalist assumes the role (previously held by medical students, residents, fellows). The hospitalist stream-lines costs and assures administrators shorter hospital stays. The problem is that elderly patients generally have multiple medical issues. If the hospitalist focuses solely on the admitting complaint and essentially triages and discharges the elderly patient, a quick readmission is almost inevitable.

    IMHO, a “teaching hospital” should be just that. An educational environment where, by definition, medical students learn how to be good doctors. And as patients, we choose teaching hospitals with the knowledge that our medical care is being provided by inexperienced doctors under the supervision of very experienced doctors.

    Student doctors should not be sued.

    The trade-off and advantage to patients is invaluable: we as patients are accessing the very best, cutting edge medical care and medical research available.

    Teaching hospitals are a national treasure in the US. (ps. sorry this is so long – I got on a soapbox for teaching hospitals again.)

  • Eric T.

    Sometimes there are good reasons why a student or young resident is sued, even though the supervising doctor or hospital is ultimately responsible.

    In large part, it’s to make sure that the patients obtain all that they can obtain during the discovery phase of the lawsuit, including the deposition of the young doc who may have moved out of state in the interim, and perhaps, certain documents that might otherwise be privileged if s/he was not a party to the lawsuit. More here:

    http://www.newyorkpersonalinjuryattorneyblog.com/2011/02/should-residents-and-students-be-sued-in-medical-malpractice-cases.html

    • Vox Rusticus

      Your reasons are risible, and linking to an ambulance chaser’s blog even better. Naming a medical student so you can “make sure that the patients obtain all that they can during the discovery phase” is just laughable. So you really would take the deposition over the chart? Right. What documents to you suggest might be “privileged” and not discoverable?

      Naming medical students is done as a pretrial tactic to force settlements, nothing more.

      • Eric T.

        What documents to you suggest might be “privileged” and not discoverable?

        Wise people will read something before criticizing it.

        • Vox Rusticus

          Your self-serving justification for trying to break into the M&M process, and the pretense that it was for “zealous”
          representation of your client is unconvincing. You used it as a lever, why not be “mensch” enough to admit it?

          • Matt

            Would you take the deposition over the chart? Is that a serious question?

          • Eric T.

            Your self-serving justification for trying to break into the M&M process, and the pretense that it was for “zealous” representation of your client is unconvincing.

            ‘Tis the law. There is (in NY) an explicit exception to the M&M privilege if the defendant is the author. If the person is not a defendant, then you can’t get the document. (Other states may differ.)

      • Eric T.

        Naming medical students is done as a pretrial tactic to force settlements, nothing more.

        To the contrary. Jurors are quite sympathetic to students, residents, nurses, technicians, etc., especially when they are being supervised by higher-ups.

        As a pure litigation strategy, you don’t want these people as defendants, as it makes it more likely the patient will lose even if the facts are in the patient’s favor.

        • Vox Rusticus

          Then you beg the question: if you don’t want medical students and residents as defendants because they are viewed as sympathetic and make your client more likely to lose, why, if you are zealously pursuing your client’s best interests, would you name them, unless you plan to drop them before trial regardless and are listing them only as a pretrial lever at settlement (after which all will be entombed in nondisclosure?)

          • Eric T.

            if you don’t want medical students and residents as defendants because they are viewed as sympathetic and make your client more likely to lose, why, if you are zealously pursuing your client’s best interests, would you name them…

            The answer depends on the state you are in, but in New York, naming them will give you:

            1. Access to documents you might not otherwise be able to get;

            2. Insures you can get the person for deposition (they move often at that age, and once they leave the state it can be more problematic and expensive to take their testimony);

            3. Allows you to ask opinion questions at deposition in addition to fact questions, and;

            4. Insures that you will have the person for trial (which is sometimes difficult with non-parties).

            In short, it has everything to do with the logistics of trying to prove the case with the best evidence that you have. The downside is that you will have the jury be sympathetic to the young doc.

            So there is both an upside and a downside to all of this and you have to make a judgment call as you balance the factors.

  • http://Advocateyourself.blogspot.com Cheryl Handy

    As an atty (previously Med Mal defense & plaintiff), I would never sue student unless he willfully ignored supervising doc’s orders.

    We must remember these are teaching hospitals for a reason … students are therein! If a patient doesn’t want risk of badly performed colonoscopy they should go to nonteaching facility .

    Trade-off to pt: I get cutting edge medical knowledge & research.

  • just a patient

    In Atul Gawande’s book, “Complications”, on his medical training at Johns Hopkins, he acknowledged that double standards were the norm when it came to staff opting out of having trainees in their own medical care. Himself included when his own son became very ill. After giving tips how to “steal” training from unaware or unconscious patients, he then admitted that he refused a fellow specializing in his son’s medical condition in favor of the chief of the department, wanting only the “best care” for his son.

    Recognizing the obvious necessity that new doctors need real patients for practice, I wondered why these doctors or trainees weren’t so generous with their own bodies, or that of their families for this noble cause in training future doctors. Could it be that they witnessed or even participated in many scary close calls during training sessions, as Gawande acknowledged happened in his own training.

    • Anonymous

      Exactly.

      Any physicians want to share their experiences as patients (or as the relatives of patients) in a teaching hospital?

  • http://advocateyourself.blogspot.com Cheryl Handy

    Just a patient” –

    I too am just a patient. I have been injured and my dad died in the hands of a large teaching hospital. That was a risk my family took with open eyes. I am not a doctor and I certainly carry no water for teaching hospitals. (see advocateyourself.blogspot.com)

    I miss my dad but I am not sorry we trusted the teaching hospital because there is a critical need for teaching hospitals. My family chose the medical facility because it does great research and has (for the most part) great surgeons.

    If your insurance only allows a teaching hospital for medical care then you should communicate with the insurance company. I travel to other states to get medical care. It may be the difference between in-network and out-network but you cannot put a “real price” on good health. Alternatively, I have worked with my insurance company to have out of state medical care providers considered in-network for my particular needs.

    You can tell an ambulance not to take you to a particular hospital. I have done it and helped other patients do it. Just speak up. Similarly, speak up with your PCP that you do not trust a teaching hospital.

    At any point during an admission, you can request to be transferred to another hospital. You can also “fire” your in hospital treaters if the hospital physician or student doctor is treating you poorly.

    These aren’t hypotheticals. I have done all of the above. Just remember that it is your body. You need to keep the lines of communication open with physicians and speak up whenever you are uncomfortable.

    A teaching hospital is a terrific and necessary evil. By agreeing to be treated at a teaching hospital, the patient becomes part of what makes the US medical professional the envy of the world. Student doctors cannot learn how to actually practice medicine if they are “cutting their teeth” while walking on egg shells. Part of learning involves student doctors making mistakes (clinically, procedurally and even in their interactions with patients/families).

    Respondeat superior – the employer is responsible for the acts of the employee. (If you are a plaintiffs’ attorney, there is nothing to be gained financially from suing a student. It is generally a manipulative and unnecessary tactic. What a horrible stigma that a young, otherwise promising, doctor would wear before he ever entered the profession.)

    • Anonymous

      Most lawsuits aren’t about money. They’re about a perceived lack of accountability.

      • Vox Rusticus

        Why then aren’t there more settlements that waive all awards in exchange for a full and complete accounting of events?

        Most lawsuits are about money, and the more the better.

        • Anonymous

          Because physicians would rather pay the money than admit a mistake or blame, especially to a lowly non-physician.

          • Vox Rusticus

            Evidence? Or just your speculation?

        • Anonymous

          Surprisingly, all the evidence I’ve read is to the contrary.

          Where’s your evidence?

      • http://abnormalfacies.wordpress.com/ Jim

        “Most lawsuits aren’t about money”

        That’s a blatant lie or a gross misconception.

        • Anonymous

          I’m not a liar, and my original statement was not a gross misconception. Visit PubMed:

          Proc (Bayl Univ Med Cent). 2003 April; 16(2): 157–161. Communication gaffes: a root cause of malpractice claims.

          Why do patients sue? 1. Desire to prevent similar incidents 2. Need for explanation 3. Yes, compensation (including to pay for care of the injured patient) 4. Desire to hold doctors accountable.

          Looks like the majority has it: not about money. That’s just one paper, BTW.

          Where’s your evidence?

        • Anonymous

          Communication gaffes: a root cause of malpractice claims. Proc (Bayl Univ Med Cent). 2003 April; 16(2): 157–161. Available on PubMed.

          Reasons given:

          1. Desire to prevent future incidents
          2. Need for explanation
          3. Money (including funds to care for the injured patient)
          4. Desire to hold doctors accountable

          That’s not the only paper, BTW. Where’s your evidence?

      • http://advocateyourself.blogspot.com Cheryl Handy

        Anonymous –

        The fact is that some lawsuits are about accountability. However, a plaintiff is unlikely to ever find a plaintiffs’ attorney to take a case merely so the plaintiff can achieve some closure with the medical profession.

        Attorneys take cases that make the attorney some money. That means in a non-death case at least:
        (1) medical bills and expenses;
        (2) lost past and future wages;
        (3) pain and suffering with enough added in for the attorney;
        (4) costs and expenses associated with bringing the lawsuit

        A plaintiff cannot bring a law suit against a physician without it being about money.

        • http://abnormalfacies.wordpress.com/ Jim

          Cheryl – exactly right.

          And Anonymous: There are certainly instances where it’s right to sue! That’s not what I take issue with. I take issue with the fact that you claim all lawsuits are about accountability. If that’s true, why not go to trial? (Answer: less likely to get paid)

          The bottom line is, a disgusting culture exists amongst attorneys and Americans with a sense of entitlement, with the sole purpose of obtaining money for misfortune – not correcting mistakes. It’s not just medicine – we sue at the drop of a hat in this country.

          Not everyone who sues is a part of this culture, but denying it absolutely IS lying, if you’re aware, OR ignorance of the fact that it exists. Watch the commercials – they’re predatory.

          As with medicine itself, I can give you resources contrary to your own (below are some other statistics published in 2003), but I’d much rather know why most cases don’t go to trial, and why I don’t know a SINGLE sole who settled for an admission of accountability, but know numerous families enjoying the fruits of their monetary settlements.

          According to the Physicians Insurers Association of America (PIAA) in 2003:

          * 70% of cases were dismissed.

          * 24% of cases were settled without trial.

          * 5% of cases went to trial and were found in favor of the physician.

          * Less than 1% of cases ended in a jury award to the plaintiff. (The actual number was .8%)

          • Matt

            ” It’s not just medicine – we sue at the drop of a hat in this country.”

            Do we? How is that determined? The vast majority of claims in this country are businesses suing businesses.

            ” but I’d much rather know why most cases don’t go to trial, and why I don’t know a SINGLE sole who settled for an admission of accountability, but know numerous families enjoying the fruits of their monetary settlements.”

            I actually am with you that lawsuits are about money. In fact, life is about money. It takes money to pay the physicians who treat you for the injuries as a result of an injury due to malpractice. It takes money to pay the bills that weren’t paid when you couldn’t work. If there was another medium of exchange, like the ability to give back someone their health, I’m sure those families “enjoying the fruits” would gladly take that instead.

        • Anonymous

          Money for the attorney, not the injured patient. Which is my point.

          • Matt

            You work for free? It takes money to pay staff, rent, utilities, etc.

    • Matt

      “Respondeat superior – the employer is responsible for the acts of the employee.”

      Are students employees?

      • Vox Rusticus

        That would be a novel definition of employment, if true.

  • ninguem

    Would someone please explain why they want to go to a teaching hospital and then demand no trainees be involved in their care? There are nice private hospitals nearby. Why not go there?

    • Anonymous

      Remember: my family and I originally had no problem with trainees being involved in our care.

      Even in a teaching hospital, patients have the right to dismiss any caregiver with whom they are not comfortable. That includes students, interns, residents and attendings.

      • ninguem

        And the people providing that care have the right to decline to enter into a physician-patient relationship. I’ve had people walk into a University teaching hospital where I was assistant prof at the time. From the outset, they lay down the demand that no trainee shall be involved in their care.

        With the full support of the department, I advised the individual to seek care elsewhere. I can make no such promise in a teaching hospital.

        And, frankly,it’s good enough for the president of the university, not to mention my family.

        I will, in fact, create medicolegal risk, by making a promise I could not possibly keep.

        • Anonymous

          Once again: originally, we didn’t mind having students participate. We were told they’d be supervised adequately. That was not the truth, and one of my family members was harmed as a result. We didn’t consider suing the student, or anyone else, and don’t regret not doing so. We do wish we’d received an apology. We’re still waiting.

          Now we avoid teaching hospitals, and we don’t miss them. Honestly: we don’t want what you have on offer.

          Re: good enough for the President… I doubt very much a medical student would be allowed to intubate the President, draw an ABG on one of his daughters, or catch the First Lady’s third (rhetorical) child.

          • http://sassymd.blogspot.com Sassy

            Anon, it seems you’ve confused the president of the university where ninguem works with the president of the United States?

        • Anonymous

          Yes, I read quickly, but my point remains: I doubt the president of the university would allow a medical student to perforfm any of those procedures – especially for the first time – on himself or his family members. Nor would many physicians, including those who work in teaching hospitals. It’s one thing to allow a 2nd or 3rd year resident to perform a procedure, and quite another when it’s a complete novice.

          • http://zenfire.tumblr.com Zenfire

            I did, as a student as well as head of ortho and major financial donors to the hospital. You’re wrong.

          • http://offwhitecoat.wordpress.com The Scrivener

            Wait, so if no one wants the “complete novice” to perform a procedure, how will the senior resident have any skill?

            As a student, I’ve performed a number of procedures, including Foley placement, ABGs, IV lines, and LPs. In all cases, the procedure was medically indicated (the resident would have done it anyway) and in all but one we informed the patient of my educational level and who would be supervising me. For that one, the patient was comatose and we spoke to the family. I should point out too that these were patients I’d met every day, not random people selected just for the procedure.

  • Stalwart Hospitalist

    @Cheryl –

    I must admit that I am surprised that an attorney, certain to have been trained in the principles of logic and argument, would have such a glaring example of the “hasty generalization” fallacy in her comment regarding hospitalists.

    • http://advocateyourself.blogspot.com Cheryl Handy

      Stalwart:

      Of course my description of how hospitalists in large teaching hospitals interfere with medical students, residents and fellows is based on my experience in large teaching hospitals. I have been directly told by these hospitalists that their task is to “save the hospital money” and “reduce costs and length of stays.” But that cost savings can and should be done by the medical school students, residents, fellows (and supervising physicians).

      My family, myself and patients I help have all experienced first-hand the “teaching hospital hospitalists” over-ruling the medical student. And, in at least a dozen cases within the last 18 months, the hospitalists have told family members that the med students, residents, fellows can be “trumped” (“over-ruled,” “ignored”) by the hospitalists. (word choice is that of the hospitalists)

      My example was factual and not isolated. It was neither hasty nor a generalization.

      So long as medical students are not going to be named in med mal lawsuits, there is no reason to have hospitalists in teaching hospitals. In fact, the medical students, residents, fellows (and supervising physicians) should be doing the work of the hospitalists.

  • PAULMD

    It is because of attorneys like our Matt here that I don’t help people with car trouble or host office associated gatherings at my home or give medical advice that any parent without medical training give freely to friends because I am “an expert” and are therefore liable for any bad outcomes that I may have contributed to. It is because of his way of thinking that our international competitors will eat our lunch as the fear mongering his like generate for profit will stagnate our economic future and further dissociate people from one another for fear of being ruined despite our best intentions and efforts.

    If torts are the civilized method of dispute resolution, its bastardization makes violence seem somehow more civilized. And of course, start with the lawyers. Life is hard, messy and full of uncertainty and eventually, we all die…apparently even that fact must be someones fault.

    Have a great day.

    • ninguem

      I second PaulMD.

      I’m still blown away by this passage in the article cited.
      http://azdailysun.com/business/article_53a73da2-7d12-5216-9d3a-895c52cb6ff7.html

      “…………..Halpern said the patient of that doctor was discharged and later involved in a crime, convicted, and is now suing Midwestern, all of the licensed practitioners who had any involvement with her — and the students ‘who had no authority to discharge her, no authority to order prescriptions, no authority to do anything.’………………….”

      The patient went on to commit a crime, and it’s the doctor’s fault?

      Medical student or attending. That it’s conceivably anyone’s fault, aside from the criminal, is astounding.

    • http://advocateyourself.blogspot.com Cheryl Handy

      Matt (PaulMD) actually changed my opinion – even if the medical student willfully ignored the supervising physician, I would not name the student in a lawsuit. It is always the supervising physician and medical school’s problem. *They* can discipline the student since they put him in the deep end of the pool.

      Sucks to be a med student if your supervising gets sued. (great idea for tee shirts!)

      • Matt

        So I take it no one has any objection to clearly stating in the statute that the supervising physician is liable?

    • Matt

      “It is because of attorneys like our Matt here that I don’t help people with car trouble or host office associated gatherings at my home or give medical advice that any parent without medical training give freely to friends because I am “an expert” and are therefore liable for any bad outcomes that I may have contributed to”

      Of course, everyone’s got an excuse for not doing the right thing. This just happens to be yours.

      “It is because of his way of thinking that our international competitors will eat our lunch. . .”

      Of course, we’re the most largest and most dynamic economy in the world, in part because you can enforce contracts here, through our judicial system. Which nation are you worried about overtaking us whose legal system you’d like to emulate?

      “Life is hard, messy and full of uncertainty and eventually, we all die…apparently even that fact must be someones fault.”

      Not really, when you consider the vast majority of even malpractice incidents never see a claim file, much less a court file. Your line is a cute one, but not really true.

  • http://advocateyourself.blogspot.com Cheryl Handy

    Of course I meant Matt AND PaulMD

  • pcp

    “Ah, then why do we bother suing medical students at all?”

    Because the medical student, backed by the enormous teaching university, is where the REALLY big bucks are.

    • http://sassymd.blogspot.com Sassy

      Right on! I mean, as a medical student, I make like (-)$50,000 a year. What a gold mine I am.

      Hmm…if I get sued, does that mean the patient gets a part of my debt? Because them I’m down.

    • Matt

      The state teaching hospital, with limited tort immunity? Really?

    • http://advocateyourself.blogspot.com Cheryl Handy

      PCP-
      The supervising (plus hospital and every other person & entity I think of) is a more reasonable choice for defendant. Supervising has a permanent (presumably) relationship with the teaching hospital. If this about $, the $ is not with the student. If this is about accountability, sue the supervisor and let the school disciple the student (make the student accountable).

      If named on the complaint, the student will have to answer “yes” on every liability insurance application he submits. What a waste. The university could discipline, flunk out or give useless letters/references for student.

  • http://advocateyourself.blogspot.com Cheryl Handy

    Matt

    Supervising physician is already responsible for acts of his supervisees. Are you suggesting that there are more than some rogue isolated teaching hospital where that is not so?

    We don’t need state legislatures wasting time with the obvious. However, not so obvious is keeping med students, residents off suits. That certainly wouldn’t be a waste of time.

    Anon –
    yippee. It looks like you & I (who have common experiences with teaching hospitals) agree on not suing medical students. Agreement is good.

    • Matt

      “Supervising physician is already responsible for acts of his supervisees.”

      They are? Someone said it was under the theory of respondeat superior – which is incorrect. So why do you believe this?

      If the supervisee acts without the authority or knowledge of the supervisor, is the supervisor still responsible? Under what legal theory?

    • Anonymous

      I certainly understand why others may feel it’s appropriate to sue a medical student, though. That’s why I think lawsuits should be allowed, on a case-by-case basis… until the entire system for dealing with medical errors and harm to patients is reformed entirely, that is. I assume you agree with me here: the system is currently badly broken. It serves neither physicians nor injured patients in a satisfactory manner. Both physicians and patients have very emotional reactions to poor outcomes and true mistakes – for very different reasons.

      Obviously, that’s not going to change anytime soon.

  • PAULMD

    @ Matt or anyone with good information…

    Is there a similar blog in the “legal world” to Kevinmd that I can read and freely contribute to? It would be interesting and helpful to gain others’ perspectives in their own sphere.

    • Elizabeth

      The Volokh Conspiracy is probably the blawg closest to Kevin’s, and might make interesting reading for you.

  • PAULMD

    Having read peoples’ opinions on medical culpability for some time, I have always wished for a “bare metal” definition of terms.

    Malpractice, patients that have been harmed, incompetence, bad outcomes, less than wished for outcomes and less than desired outcomes. I am sure there are more.

    There seems to be suggestions from some that all patients that have “a loss” be compensated. Then call it “loss compensation payments”. Why are they all bundled under the moniker “MALPRACTICE?”

    • http://advocateyourself.blogspot.com Cheryl Handy

      PaulMD-
      Great points. (& btw I know of no atty blog w value of Kevin’s blog. My profession is all about words, ideas, arguments & most don’t like to “think for free”).

      IMHO, attys should be disbarred if they take a med mal case that has no merit. (Basis: Appropriate standard of care breached, res ipsa loquitur, negligence per se) Need doc expert to testify re stnd of care & negligent treatment caused injury or harm to pt.

      Most docs do good job of making sure pt doesn’t have unreasonable expectations. Esp true in plastics, orthopedics. But, docs can’t prevent “losses” & shouldn’t be legally liable for “losses.” All pts have losses!

    • http://www.newyorkpersonalinjuryattorneyblog.com/ Eric T.

      There seems to be suggestions from some that all patients that have “a loss” be compensated. Then call it “loss compensation payments”. Why are they all bundled under the moniker “MALPRACTICE?”

      Paul, a bad outcome doesn’t mean malpractice. And a mere error of judgment is not malpractice.

      For it to be malpractice, there must be a departure from good and accepted medical practice, and that departure must be a substantial cause of injury.

      A jury doesn’t evaluate the loss unless they get past the malpractice and causation issues.

  • just a patient

    @ zenfire – re your good experience with trainees vs. the nervous skeptics here:

    The difference is that those working in academic medicine have inside knowledge who the “star” trainees are, as well as the attendings who you wouldn’t let touch with a 10 foot pole. Don’t tell me that hospital personnel don’t vet those trainees or doctors before letting them work on themselves or their families, getting valuable information not available to the public. The nurses on Allnurses forum admit to taking advantage of this perk, as I’m sure everybody who works in a hospital does. I would too.

  • SC

    Oh, remember, ladies and gentlemen, if the student never performs a procedure on a patient under strict guidance of the resident or attending physician, then they will just do it a bit later in their training when they are then MD’s in their residency training.

    I am an attending physician in a teaching institution. When a cousin learned that my worked in involved the care of patients and simultaneously teaching medical students and residents, she was horrified at the idea of someone “learning” on her. I asked her “Do you want their first time to be with me there or all on their own? This is how we ALL learn how to be competent physicians.”

  • PAULMD

    @Eric T.

    Thank you for your comments. I was being a bit rhetorical. I did, however, wish to point out that the tenor of many conversations have to do with “patients that have suffered a loss” and that they be promptly compensated. Whether intentional or not, when legal issues over patient care are discussed, the terms are being blurred more and more over time.

    The concern is that the term “loss” will adopt the meaning of “malpractice” by society and that if reinforced on TV, radio and print will be perceived as one in the same. Thankfully for society, the “loss patient” can quickly call the caring attorneys found on the back pages of the phone book to help them sort it out and educate them. We are truly blessed to have them.

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