Steven E. North, Esq. and Laurence M. Deutsch, Esq.
Every July 1st, legions of newly minted residents report for duty at hospitals across the United States. Simultaneously, more seasoned residents advance to upper levels and are permitted to do procedures they previously were not eligible to do. If you could choose a time to need hospital care, it would most likely not be in July, when the changeover occurs.
As reported in a May 11, 2017, article (“Resident Duty Hours Change”) on Medscape.com, residents can legally be assigned to work up to 80 hours a week. What changes this month is that the existing 16-hour cap on work shifts has been extended to 28 hours by the Accreditation Council for Graduate Medical Education (ACGME). Some appreciate the flexibility the lifting of the cap facilitates, but there is controversy about whether longer work stretches result in more errors. Many studies show that overworked, overtired, overextended employees are more prone to error.
Patients cannot always control who is handling their care; in teaching hospitals residents routinely perform or assist with surgical procedures. While the small print in the numerous papers that patients sign before surgery may indicate that physicians other than their own may perform or be part of the planned surgery, it is probable that many do not read the small print.
Patients may assume that the attending (supervising) physician has done the surgery on his or her own. This is often not the case, and if adverse events occur, there is no record of whose hands caused the damage. Medical records often state that the attending physician was “present during all significant parts of the procedure.” However, as a practical matter, there is often no actual evidence recorded in the chart, or otherwise, as to how much hands-on involvement or actual supervision of the resident really took place.
In the emergency department, too, first-year residents play significant roles. They often are the first to evaluate a patient’s condition. Although they are instructed to report findings to the attendin, their inexperience can and often does result in a failure to recognize particular signs. There is no doubt that there is a direct relationship between experience and patient health outcome. While hospitals can and should teach residents, it is our experience that a hospital pushing the envelope too much in having inexperienced residents provide front-line care is not serving its patients well, and we may find the basis for a strong malpractice case in such situations.
Although the accrediting counsel for graduate medical education approved the expansion of resident work shifts, the American Medical Students Association (AMSA) is cited in the Medscape.com article as firmly against it. The organization points out that extended hours are not only potentially harmful for patients and first- year residents, but also to residents further along in their training. A doctor who is overextended, it says, is likely to suffer more needle sticks and car accidents, for example.
Hospitals that support increasing the number of hours permissible in a work shift cite more flexibility in scheduling, but some suspect that cost control figures into the equation. Such savings may be false since first-year residents may very well be responsible for injuries to the patients, which will ultimately cost hospitals and society more.
There is always a tension between efficiency and patient care. But even in terms of efficiency, when hospitals create their own malpractice liability by seeking to spread their resident staffs too thin, they may discover that the ensuing litigation liability will outweigh what they thought were financial advantages. But we think this is at it should be. In our experience, proper use of malpractice litigation, brought against unsafe medical practices, can help place the proper incentives back toward patient safety when it’s needed.
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Specialist in Cases Involving Significant Damages • Listed in Best Lawyers • Listed in Who’s Who • Commentator, Court T.V., Eyewitness News, Talk News T.V. • Contributing Author, New York Law Journal Author of Numerous Publications • Faculty Chairman, Continuing Legal Education Programs • Trial Lawyer and Bar Association Committees
1988, New York and U.S. District Court, Northern, Southern, Eastern and Western Districts of New York. Union College, Schenectady, B.A., magna cum laude, 1984 Phi Beta Kappa; University of Chicago Law School, J.D., 1987
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