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Q: Medical Residents' Practice ( Answered,   0 Comments )
Subject: Medical Residents' Practice
Category: Relationships and Society > Law
Asked by: chewonthis-ga
List Price: $150.00
Posted: 15 Feb 2006 18:50 PST
Expires: 17 Mar 2006 18:50 PST
Question ID: 446381
What court cases have recently gone to trial regarding medical
trainees (residents)? In terms of a resident's liability, right to
practice, level of competence, etc.? I'd like cases and also other
articles or writings on this issue. Thanks!

Request for Question Clarification by pafalafa-ga on 15 Feb 2006 19:06 PST
Two clarifications, please:

1.  Is there a particular jurisdiction of interest?  I'm presuming
you're asking about the US, but if so, is there a particular state you
want information on?

2.  Not all materials are directly accessible on the web...this is the
case with many articles from legal journals, for instance.  Although
we can cite relevant articles -- and offer brief excerpts -- we can't
copy them in full, since they are copyright.  Will this meet your



Clarification of Question by chewonthis-ga on 15 Feb 2006 19:10 PST
1. Yes, I'd like the US in general, but if there's anything
Pennsylvania-specific, I wouldn't mind that either.
2. I understand this. If you can provide citations and brief exceprts
or summaries, then I can deem whether it is worth my time to track
down the full document.


Also, I'm looking for stuff pertaining to any aspect of the medical
resident's experience and the impact on care provided to the patient.

Request for Question Clarification by pafalafa-ga on 20 Feb 2006 06:01 PST

There is a reasonable amount of literature and case law on the issues
of doctors-in-training, and the degree of supervision, care and
liability of the individuals and institutions in which they are

As I thought, most of the useful material is in case law and journal
articles that are not readily available online, so that my best option
for answering your question is to provide citations and brief excerpts
from the relevant materials.

Here are a few such excerpts.  Let me know if these look useful for
your needs, and if I should post them -- along with a few other
cases/articles -- as an answer to your question.



St. John's Law Review
Summer, 1997
The Doctrine Of Informed Consent: To Inform Or Not To Inform?
Paula Walter 

...In Hill v. Seward, n118 the New York Supreme Court further analyzed
the issue of which actors in the medical hierarchy should be held
liable for not procuring an informed consent. The Hill court held that
although a medical resident is an important member in a teaching
hospital, a resident cannot be held accountable for failing to obtain
the patent's informed consent even if he in fact discussed the surgery
with the patient. n119 Performance or participation in the treatment
or procedure triggers the legal requirement to obtain a patient's
informed consent. The court reasoned that in spite of the numerous
occasions in which the resident interacted with the patient, the
resident cannot be held liable because he did not perform or
participate in the surgery in any manner. n120 Thus, even in cases
where the information is provided by a person with the qualifications
to inform, liability nevertheless may only be imposed on the treating
physician. n121

...n121. Hill, 470 N.Y.S.2d at 972 (stating that failure of resident
doctor to disclose risks of procedure may impose liability on treating
physician, but not on resident physician).

SMU Law Review
Summer, 2003
Vicarious Liability - St. Joseph Hospital v. Wolff
...In St. Joseph Hospital v. Wolff,n234 the Texas Supreme Court
re-examined, among other theories of vicarious liability, the "joint
enterprise" theory. St. Joseph appealed a finding that it was
vicariously liable for the negligent act of a resident who treated the
plaintiff. St. Joseph is a teaching hospital that sponsored a medical
residency program. One of its residents negligently treated a patient
while the resident, as part of the residency training program, was
receiving training at another hospital under the immediate supervision
of the other medical institution's agent. The court concluded there
was "no evidence to support the jury's findings of joint enterprise,
joint venture, 'mission' or non-employee respondeat superior, or
ratification." n235 The court also concluded that "the undisputed
evidence proved conclusively, or as a matter of law, that when the
resident treated the patient he was acting as the borrowed employee of
the medical institution supervising him." n236

...Stacy Wolff was injured in a traffic accident in 1994 and
subsequently flown to Brackenridge Hospital in Austin, Texas. When she
arrived, her attending physician, Dr. David Harshaw, and a third-year
resident, Dr. Mario Villafani, performed a tracheostomy and inserted a
breathing tube in Wolff's throat. Several days later, Wolff began to
bleed from the surgical site. Dr. Villafani recognized the bleeding
but did not tell the attending physician, Dr. Harshaw, or the chief
resident. After one bleeding episode, Wolff went into cardiac and
respiratory arrest, which left her with severe brain damage.n237

...During his treatment of Wolff, Dr. Villafani was a resident at St.
Joseph Hospital in Houston. The Central Texas Medical Foundation (the
"Foundation") was a "participating institution" in St. Joseph's
residency program. Austin-area physicians formed the Foundation to
operate the residency program at Brackenridge Hospital, which is owned
by the City of Austin, and Dr. Harshaw was the Foundation's Director
of Surgical Education.n238

...The Wolff family sued various parties for the car wreck and the
subsequent medical malpractice. The jury contributed 85% of the
liability to Dr. Villafani and found that St. Joseph was also liable
under a joint-enterprise theory. St. Joseph appealed, claiming that
there was no theory of  [*1917]  vicarious liability that could be
used to sustain the verdict.n239

...The issue before the Texas Supreme Court was whether there was any
evidence to support a finding of vicarious liability.

Oklahoma Law Review
Fall, 1996
Torts: Anderson v. Eichner Although Faculty Physicians, Resident
Physicians, and Interns Face Private Tort Liability for Medical
Malpractice, the State Is Immune
Christa L. Britton

...The recent Oklahoma Supreme Court case, Anderson v. Eichner, n3
examined the GTCA in relation to faculty physicians, resident
physicians, and interns. The court held that these physicians are not
acting within the scope of their employment while practicing medicine
or providing treatment to patients. n4 Thus, if these physicians
commit a tortious act while practicing medicine, the state is immune
from liability, and the physicians are subject to private tort
liability. n5 However, while engaged in teaching activities or while
participating in a graduate medical program, these physicians are
immune from liability, and the state is liable for their actions. n6

...Most states have abrogated or at least modified the common law
doctrine of sovereign immunity. However, several jurisdictions have
upheld immunity for faculty physicians, resident physicians, and
interns. In contrast to Oklahoma s Governmental Tort Claims Act, the
Federal Tort Claims Act provides immunity for physicians acting within
the scope of their employment, even though the physician was
practicing medicine or engaged in the treatment of patients.

Annals of Health Law
Changing the Law, Changing the Culture: Rethinking the "Sleepy Resident" Problem
Jennifer F. Whetsell

...Teaching hospitals, medical residents (doctors-in-training), and
patients have long engaged in a very rewarding three-way quid pro quo.
Teaching hospitals provide valuable training to both upcoming
physicians and the medical schools that teach those physicians.
Residents provide inexpensive and eager services to those hospitals,
their attending physicians, or senior staff, and the patients for whom
they care. In residency utopia, residents and attending physicians
exist in a nurturing master-apprentice relationship under which the
residents' medical skills thrive, and patients receive excellent care.
n2 Patients often choose teaching hospitals for their "top physicians,
research and technology, and lower mortality rates in areas such as
heart bypass surgery." n3

...[*24]  However, there is increasing evidence that this quid pro quo
has been hampered by hospital traditions of long hours and little
supervision for residents, including interns (medical school graduates
in their first year of residency). These training programs mandate
36-hour work shifts, 100-plus hour workweeks, and frequent overnight
duty. n4 These stringent standards come at the expense of patients,
whose care frequently suffers under these circumstances, even to the
point of injury or death.

...This Article explores the debate surrounding the "sleepy resident"
problem. It considers the New York experience to address whether and
how the federal government should take a similar approach. It analyzes
the efficacy of the New York statute and demonstrates that its
directives are widely flouted in hospitals across that state. The
Article argues that New York's mandate fails to take sufficient
account of hospital cultural and financial issues and therefore fails.

Dougherty v. Hoffmeier
Common Pleas Court of Philadelphia County
12 Phila. 329; 1985 Phila. Cty. Rptr. LEXIS 38
March 26, 1985

...Interns and residents who are full time [**3]  salaried employees
of the hospital are deemed agents and the hospital may be held liable
for their negligent acts. Thus, even where a medical center's intern
and resident were independently negligent, the hospital itself is
vicariously liable.

...The [**25]  evidence proferred was sufficient to establish
negligence against Dr. Shah and that Dr. Shah was an agent, servant or
employee of Defendant, Frankford Hospital. Frankford Hospital is thus
liable for the acts of Dr. Shah. The hospital, as a corporate entity,
can only be liable through the acts of its agents. Here, both Dr.
Miller, the resident and Dr. Shah, the intern, were acting on behalf
of the hospital. Thus, where a medical center's residents and interns
were independently negligent, the hospital itself is vicariously
liable. Pratt v. Stein, 298 Pa. Superior Ct. 92, 444 A.2d 674 (1982).

Campbell v. Attanasio
2004 PA Super 446; 862 A.2d 1282; 2004 Pa. Super. LEXIS 4372
November 30, 2004, Filed Appellant accurately points out, Dr. Golden was a resident when
this incident occurred; therefore, he cannot be deemed a specialist in
internal medicine or held to the standard of care of a specialist or a
subspecialist in these proceedings. See Jistarri v. Nappi, 378 Pa.
Super. 583, 549 A.2d 210, 214 (Pa. Super. 1988) (affirming trial
court's determination that a resident, a licensed physician receiving
training in a particular specialty, cannot be held to the same degree
of care as a specialist who has "completed the residency program and
may also have had years of experience in the specialized field.").


Again, let me know if these sorts of materials are on-target for your needs.


Clarification of Question by chewonthis-ga on 20 Feb 2006 10:36 PST

thank you so much! this type of response is what i had expected and
hoped for. i have access to legal resources, so citations and
summaries would be ideal.

thank you so much!

Request for Question Clarification by pafalafa-ga on 20 Feb 2006 11:23 PST
That's great.

Lexis just went down on me, but once I get access back, I'll be able
to finish up and post an answer.

Stay tuned...

Subject: Re: Medical Residents' Practice
Answered By: pafalafa-ga on 20 Feb 2006 11:44 PST

That didn't take too long!...Lexis is back up.

Here are some additional cases and articles that, hopefully, are of
interest to you.

There's not not much more on this topic than what I provided earlier,
in the way of precedent-setting cases regarding medical residents. 
That is, there are many cases where medical residents are mentioned in
the context of a case, but not very many cases of recent vintage where
the direct question of a resident's culpability is central to the

The other materials that I came across are:

Cavaliere v. Duff's Business Inst.
413 Pa. Super. 357; 605 A.2d 397; 1992 Pa. Super. LEXIS 820
March 24, 1992, Filed

...n2 One possible and manifestly undesirable consequence of
recognizing an educational malpractice cause of action challenging the
general quality of instruction given at an educational institution is
well illustrated by the case of Swidryk v. Saint Michael's Medical
Center, 201 N.J.Super. 601, 493 A.2d 641 (1985). In that case, a
resident doctor who was sued for malpractice in turn sued the director
of medical education at the hospital where plaintiff was a resident,
contending that he was provided inadequate supervision during his
residency and provided an inadequate medical educational environment.
The court rejected the action, stating:

...To allow a physician to file suit for educational malpractice
against his school and residence program each time he is sued for
malpractice would call for a malpractice trial within a malpractice
case. Creation of the tort of educational malpractice in this context
would substantially increase the amount of time which a medical
malpractice case takes to try . . . . The litigation explosion has
limits and this is one area in which those limits should definitely be

...Id. at 608, 493 A.2d at 645. Similarly, in Moore v. Vanderloo, 386
N.W.2d 108 (Iowa 1986), a patient allegedly injured by a chiropractor
sued both the chiropractor and the school where he was trained for
breach of warranty and negligence. The Supreme Court of Iowa affirmed
a grant of summary judgment for the school, citing all of the
traditional reasons for not recognizing a claim for educational
malpractice claim and further opining, in pertinent part:
. . . if a cause of action for educational malpractice is recognized
in Iowa, any malpractice case would have a malpractice action within
it. For example, a doctor or attorney sued for malpractice by a
patient or client might have an action over against his or her
educational institution for failure to teach the doctor or attorney
how to treat or handle the patient or client's problem. . . . .
Further, if an educational malpractice claim is allowed against a
professional school, could we logically refuse to recognize such a
cause of action against an institution offering training courses for
certain trades? For example, would a homeowner damaged by faulty
wiring have a cause of action against the electrician's trade school?

Purcell v. Bryn Mawr Hosp., 
Superior Court of Pennsylvania
379 Pa. Super. 626; 550 A.2d 1320; 1988 Pa. Super. LEXIS 3442
November 23, 1988, Filed

[this was a venue case that involved residents, and the matter of
where they were attending school vs where they were doing their
residency ]

Klein v. La Wayne Miller
2004 U.S. Dist. LEXIS 8916
March 30, 2004, Filed

...At issue in St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 517, 46 Tex.
Sup. Ct. J. 142 (Tex. 2002), was "whether a teaching hospital that
sponsors a medical residency program is vicariously liable for a
resident's negligent treatment of a patient, occurring while the
resident, as part of the residency training program, was receiving
training at another hospital under the immediate supervision of
another medical institution's agent." Although the court concluded
there was "no evidence to support the jury's findings of joint
enterprise, joint venture, 'mission' or non-employee respondeat
superior, or ratification," the court found the "undisputed evidence
proved conclusively, or as a matter of law, that when the resident
treated [*9]  the patient he was acting as the borrowed employee of
the medical institution supervising him." Id. Therefore, plaintiffs
were not allowed to recover from the teaching hospital.

...The plaintiff in St. Joseph was severely injured and admitted to
Austin's Brackenridge Hospital. Id. An attending physician and a
third-year resident perform a tracheostomy on the plaintiff and
"inserted a breathing tube in her throat." A few days following the
procedure, the resident examined the plaintiff, noticed she was
bleeding from the surgical wound but did not alert the attending
physician, his substitute, or the chief resident. Plaintiff survived
cardiac and respiratory arrest but suffered "permanent, severe brain
damage." Id. at 518. The court described the resident's status as
At all times during his treatment of Wolff, Villafani [the resident]
was enrolled in an integrated general surgery residency program. The
program was operated by St. Joseph Hospital ("St. Joseph") in Houston,
the sponsoring institution, and the Central Texas Medical Foundation
("Foundation"), a participating institution. The Foundation is a
certified health organization operated [*10]  by physicians under
Texas Law that was formed for the purpose of operating a residency
program. The Foundation is based in Austin. Harshaw, Wolff's attending
physician, was also the Foundation's Director of Surgical Education.

...Id. (footnote containing citation omitted). In addition, the court
examined the program contract which was entered into between St.
Joseph and the Foundation and provided:...St. Joseph operated a
general surgery residency program and wished to "provide extensive
experience in general surgery for the surgical residents in training."
The Program Contract also stated that the Foundation provided health
care treatment at Brackenridge Hospital (which is owned by the City of
Austin) through residency training programs and the Foundation
"desired the services of postdoctoral surgical residents to assure the
availability of qualified surgeons in the future."

New York Law Journal
January 22, 2001 
Torts: A Hospital May Not Be Held Liable For its Surgical Resident's
Unforeseeable Crime;
N.X., plaintiff-respondent-appellant v. Cabrini Medical Center,
Decided Jan. 18, 2001

...The issue presented by this appeal is whether a hospital may be
held liable for a sexual assault committed by a surgical resident
either (a) because the assault is regarded as being within the scope
of the resident's employment, or (b) because the hospital's nurses,
who had no reason to know of the resident's deviant proclivities and
were unaware that an assault was occurring, were in close proximity.
In our view, settled principles of law preclude imposing tort
liability upon the hospital for the unforeseeable crime committed by
the resident. While plaintiff and the dissent invite us to depart from
settled law and expand the outer limits of hospital liability, we
decline the invitation.

Health Law Week
October 18, 2002
Hospital may be vicariously liable for agent's negligence.; 
Vanderpool v. University Hosp. Inc., No. C-020020 (Ohio Ct. App. Sept. 27, 2002)

...Jackie Vanderpool had been a patient at the obstetrics and
gynecology outpatient clinic, run by University Hospital Inc. Resident
physicians managed the clinic and treated patients under the
supervision of OB-GYN department faculty at the University of
Cincinnati's College of Medicine. The residents and administrative
staff at the clinic were hospital employees. Vanderpool did not
realize the doctors treating her were residents, supervised by faculty
doctors unaffiliated with the hospital.

...Vanderpool suffered from chronic pelvic pain and needed laproscopic
surgery to remove an ovarian cyst. Dr. Porter, who preoperatively
assessed Vanderpool, submitted the surgical plan for approval to Dr.
Duma, the faculty doctor assigned to the clinic that day. Duma
approved the plan.

...Porter told Vanderpool that Duma or Dr. Huppert would participate
in her surgery. The consent form signed by Vanderpool stated that Dr.
Rebar, the department chairperson, et al. would perform the surgery.
On the day of surgery, Dr. Johnson, a clinic resident, told Vanderpool
that Huppert, who was assigned to supervise surgeries that day, would
be leading the surgical team.

...Johnson and resident Dr. Arovas participated in the surgery. During
surgery, Huppert had to leave, and Duma was called in to finish the
procedure. While Duma was supervising, Vanderpool's ureter was cut and
damaged. Duma's only contact with Vanderpool was during the surgery.

...The Foundation of Obstetrics and Gynecology Inc. (FOG) was the
practice corporation for the faculty members of the university's
OB-GYN department. FOG was responsible for billing clinic and private
patients treated by the faculty doctors. FOG billed Vanderpool $2,200
for Duma's services during her surgery. FOG paid 85% of Duma's salary
in 1999 and provided Duma with liability insurance. Part of the salary
paid by FOG compensated Duma for instructing residents and medical

...Vanderpool sued the doctors involved in her care, the hospital and
FOG, alleging medical malpractice. She also sued the university,
alleging it was vicariously liable for the negligence of its

New York Law Journal
March 2, 1999
State Must Pay for Malpractice Settlement That Insurer Entered for SUNY Surgeon;
Physicians' Reciprocal Insurers v. State Of New York

...The Frontier litigation (see, n 3, supra), established that Public
Officers Law @ 17 obliged the State to defend and indemnify SUNY
faculty physicians for acts of alleged medical malpractice falling
within the scope of their State employment, n20 which occurred when 1)
the purpose of the physician's employment was to teach his specialty
area to SUNY medical students and resident physicians; 2) the
operation or other treatment giving rise to the medical malpractice
action was a procedure within that specialty area; 3) the physician
was observed and/or assisted by the students or residents whom he was
employed to teach when performing the act(s) which subsequently gave
rise to the malpractice action; 4) the operation or other treatment in
question was performed in a hospital authorized and approved for
teaching by the medical school; and 5) it was within the contemplation
of both the physician and the medical school that the physician's
teaching duties would include treatment of patients who could be
"clinical practice patients" (i.e., patients who would or could be
billed through the clinial practice plan to which the physician
belonged) (see, Frontier Ins. Co. [Angtuaco] v. State of New York, 146
Misc. 2d 237, affd 172 AD2d 13, supra; Frontier Ins. Co. [Mann] v.
State of New York, Claim No. 84945, Motion No. M-48509 [Blinder, J.],
Dec. 13, 1993, at 3).

The Legal Intelligencer
November 15, 2004
Mediation Presents Opportunities to Meet Objectives
By Abraham J. Gafni

...Consider some of the following examples of issues which may be
addressed following an "unsuccessful" mediation:

...Who are the proper defendants?...For example, a medical
malpractice/products liability action may have been commenced
initially against a hospital, physicians, residents, interns, nurses
and medical device manufacturers. During the mediation, it may have
become apparent that certain of the defendants are not liable or are
only tangentially related to the matter and should be dismissed from
the case. Frank discussion concerning the involvement of certain
parties may result in an agreement to drop some of the named
defendants, which will result in savings for all parties in terms of
both discovery and expense.


That's it, in terms of a general overview of the available materials.  

If there's a particular aspect of all this that you'd like more
information on, just let me know, and perhaps I can come up with some
additional materials.

Best of luck,


search strategy -- search of legal databases for materials related to
[ medical NEAR residen* AND malpractice OR liability ]
There are no comments at this time.

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