Residents can be sued, too: Experts offer mitigation strategies

By Joe Hannan | Fact-checked by Barbara Bekiesz
Published March 29, 2022

Key Takeaways

  • Medical malpractice is an act or omission during treatment that deviates from legally accepted standards of care, resulting in patient injury.

  • Research demonstrates that despite their status as trainees, residents can be—and are—named as defendants in medical malpractice lawsuits.

  • Residents must familiarize themselves with the basics of malpractice law, adhere to training standards and protocols, and take advantage of employer resources to mitigate malpractice risk.

New residents are poised to learn myriad lessons as they begin their clinical education—but the basics of medical liability and malpractice may not be among them.

Unfortunately, malpractice lawsuits are inevitable for most physicians—including residents. A 2017 AMA Policy Research Perspectives paper found that more than a third of doctors will face legal action in their careers.

And in an interview with MDLinx, Beiqun (Mark) Zhao, MD, MAS, lead author of another study on surgical malpractice, found that 75% of residents did not know what resources were available when facing litigation [see below for more from Dr. Zhao].

Physicians in training can prepare by learning some nuances of medical malpractice and liability law.[]

The basics of medical malpractice

Medical liability and medical malpractice often are used interchangeably. Specifically, medical malpractice is a type of professional liability. According to a 2009 article, medical malpractice is an act or omission during treatment that parts from practice norms and leads to patient injury.[]

Scenarios that could lead to medical malpractice suits include an overlooked diagnosis or misdiagnosis, unnecessary or wrong-site surgery, or improper medication dosing, among others.

To win financial compensation, a patient must prove that substandard care caused injury. The patient must also file a claim within a certain time window, known as a statute of limitations. A court will then determine how much compensation the patient will receive based on lost income, cost of future care, and pain and suffering.

There is no federal definition of medical malpractice. Individual states have different legal definitions. However, the National Conference of State Legislatures identifies four commonalities among the states. To receive compensation from a malpractice suit, a patient must demonstrate:

  • That “the physician owed a duty to the patient.”

  • That the physician did not adhere to the standard of care.

  • That the injury is compensable.

  • That lack of adherence to the standard of care caused the patient harm.

To view what constitutes malpractice in your state, click here.

How malpractice affects residents

Fortunately, residents have legal protection from malpractice lawsuits in the form of malpractice insurance. According to the Association for Advancing Physician and Provider Recruitment, most physician employers pay physicians’ medical malpractice insurance premiums. In the event of a lawsuit, medical malpractice insurance covers a doctor’s attorney fees and court costs, medical damages, punitive and compensatory damages, arbitration costs, and settlement costs.

Residents in many states are not required to have their own malpractice policy while training. This does not mean, however, that residents are immune from medical malpractice lawsuits.

A 2020 research report published in Academic Medicine examined resident-involved malpractice claims.[] Researchers reviewed the Comparative Benchmarking System (CBS) database and selected malpractice claims from 2012 to 2016 (referred to as “cases”) that involved physician trainees. In this report, controls were claims from the same facilities that did not involve trainees.

Among the 30,973 claims, 581 were cases and 2,610 were controls. Residents were involved in  81% of the cases. The rate of trainee involvement was higher among cases than controls, and that rate was statistically significant.

Some of the standout findings included:

  • Among the cases, 11% involved a puncture or laceration during surgery.

  • Inadequate supervision contributed to 24% of cases.

  • The majority of the inadequate supervision cases—74%—were procedure related.

  • “Harm events” were most likely to occur with oral surgery/dentistry and obstetrics, during procedures or during emergency room care.

This study showed that “claims in which physician trainees were directly involved in the harm events were rare overall,” the researchers wrote. When the incidents did happen, “residents were involved more often than fellows,” and surgical trainees performing in the emergency department were most at risk. “Procedural safety,” the authors recommend, is “the best area to target with prevention strategies.”

Researchers recommended the following prevention strategies:

  • Procedural and team-based simulations

  • Procedure logs that require supervisor signatures

  • Setting higher bars for procedural independence

  • Creating a culture of safety

  • Using the ACGME’s progressive responsibility framework

“The goal of these strategies is to prevent patients from being harmed as well as to prevent trainees from being exposed to potentially traumatic events early in their career,” the authors wrote.

Risks for residents

A 2019 study published in the American Journal of Surgery focused on surgical malpractice among residents.[] In this study, researchers also used the CBS database, examining 57,744 malpractice cases that occurred from 2007 to 2016. Of these cases, 4% involved residents and 32% of the residents were in surgical specialties—resulting in $259 million in indemnities. General surgery had the most cases, 188.

The study also included a survey to assess residents’ malpractice knowledge; 32 residents responded.

  • 68.75% knew that residents could be major defendants in malpractice cases.

  • 75% did not know what resources were available when facing litigation.

  • 68.75% rated their medical-legal knowledge as “terrible” or “poor.”

  • 96.83% viewed legal training as important.

In an MDLinx interview, the study’s lead author, Beiqun (Mark) Zhao, MD, MAS, said some of the findings were surprising. The most common allegation was “improper performance of surgery,” but “improper management” had the highest payouts overall, while “delay in surgery” had the highest payouts per case.

“In surgical education, we often have to stress that surgery is not only in the operating room but also outside of the OR, and knowing when to operate and how to care for the surgical patient is as important as how to perform a specific surgery,” Zhao said. "The other surprising finding is that, while rare, resident physicians can be named in lawsuits."

"Most residents assume that they are practicing under an attending’s supervision, and therefore are ‘protected’ from litigation while in training."

Beiqun (Mark) Zhao, MD, MAS

Zhao attributed the finding that 68.75% of residents knew they could be defendants in a malpractice case to survey bias.

While there is no consensus on best methods to reduce malpractice cases, Zhao said a resident’s legal training should include malpractice seminars, simulations such as mock depositions, or, when possible, short immersions at a medical liability insurance company. Residents should also be encouraged to discuss malpractice openly and take advantage of employer resources.

“All hospitals have a risk management department, and they should avail themselves to not only attendings, but also residents,” Zhao said.

What this means for you

Residents can be (and are) named defendants in medical malpractice suits. To mitigate malpractice risk, residents should adhere to common protocols such as the progressive responsibility framework and procedure logging. They should also avail themselves of procedural and team-based simulations during training, as well as supplemental educational materials and opportunities to learn about medical malpractice.

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