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.
SUPERIOR COURT OF PENNSYLVANIA
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
Klein v. La Wayne Miller
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS, SAN
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
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
Best of luck,
search strategy -- search of legal databases for materials related to
[ medical NEAR residen* AND malpractice OR liability ]