resident physicians held to a general standard of care

AMER ICAN SOCIETY FOR HEALTHCARE R I SK MANAGEMENT 37

Case Law Update

Resident physicians held to a general standard of care

MED ICAL MALPRACT ICE

Facts

William Clark was injured in an automobile accident and was taken to University Hospital-University of Medicine and Dentistry of New Jersey. He came under the care of Dr. Raquel Forsythe, a fourth-year surgical resident, and Dr. Th omas Chiodo, a second-year resident in Oral and Maxillofacial Surgery. Mr. Clark’s intestines failed to empty as a result of his injuries, consequently his stomach needed to be decompressed and drained periodically.

To drain his stomach contents, Drs. Forsythe and Chiodo inserted a naso-gastric tube. Mr. Clark pulled the tube out and the doctors re-inserted it. When he extubated himself a second time, the doctors decided not to re-intubate him. Mr. Clark subsequently died. Although the defendants later claimed that he died of cardiac arrest, his estate alleged that he died when he vomited and aspirated the vomitus. According to plaintiff ’s expert, Mr. Clark lived for four minutes after vomiting and choking on the vomitus.

Suit was brought by Mr. Clark’s estate for medical malpractice against the hospital and various defendants, including Drs. Forsythe and Chiodo. Th e jury awarded the plaintiff $2 million for Mr. Clark’s pain and suff ering and $1 million in pecuniary losses for his wrongful death. Th is appeal ensued.

Issues

To what standard of care should medical residents be held? Was the verdict for $2 million for Mr. Clark’s pain and suff ering clearly excessive?

Analysis

With regard to the standard of care, the court noted that one must graduate from a four-year medical school and complete a one-year internship, or a year of approved post-graduate work, in order to be licensed to practice medicine in New Jersey. Additionally, a person will be regarded as practicing medicine if he or she holds himself or herself out as “Dr.,” “doctor,” or “MD.” Consequently, both Dr. Forsythe and Dr. Chiodo would be regarded as engaged in the practice of medicine.

Th e court also noted that there have been a number of cases from other jurisdictions that have held residents to the same standard of care as general practitioners. Th e court reasoned that this was appropriate, because they were licensed to practice on the same level as a general practitioner. Additionally, the court noted that to accord them a lower standard of care would open the door to lowering the standard of care for physicians who were less experienced with a given procedure, which the court would be extremely loath to do. Accordingly, the court held that the residents should be held to the same standard of care as would a general practitioner.

Th ere are two tests in New Jersey to determine whether jury verdicts are excessive. Th e common law test requires that the verdict be so disproportionate to the nature of the injuries as to “shock the conscience” of the court. Th e legislature enacted the New Jersey

By John C. West, JD, MHA, DFASHRM

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38 JOURNAL OF HEALTHCARE R ISK MANAGEMENT • VOLUME 27 , NUMBER 1

Medical Care Access and Responsibility and Patients First Act, N.J.S.A. §2A:53A-37, that allows for a remitittur (reduction of the jury verdict) if the verdict was “clearly excessive.” Th e court could fi nd no substantive diff erence between the two tests. Th e court held that an award of $2 million for a four-minute period, in which the patient died a “horrible” death, neither shocked the conscience of the court nor was clearly excessive. Consequently, the court upheld this portion of the verdict.

Risk management considerations

While the holding with regard to the standard of care may have some surface appeal, it may be fundamentally fl awed. Medical residents often are not functioning as general practitioners, and the standard applicable to general practitioners may not always work for them.

Residents may perform any number of tasks that are beyond the scope of a general practitioner. As an obvious example, how could one hold a resident in anesthesiology to the standard of care for a general practitioner, when general practitioners do not administer general anesthesia? Holding a resident to the standard of care of a general practitioner only works when the resident is performing a task normally performed by a general practitioner. It may not work in all situations.

Nonetheless, from a practical perspective, this is a generally favor-able ruling for resident physicians. It would be fairer to stratify standards of care based on the type of residency and the resident’s location within the program, but that could quickly become com-plicated to the point where it would be unworkable. Additionally, it would assume that, for example, the third year of all general surgery residencies was identical, which may not be true. Th e standard of care for a general practitioner is a relatively low stan-dard of care, at least when compared to that required of a board certifi ed specialist, so it should be fair to most medical residents.

Hospitals with residency programs will always fi nd themselves challenged when it comes to ensuring a high quality of care, simply because residents are not fully qualifi ed to practice within their specialty. At least, following this case, they will not be held to the standard of care of that specialty.

Clark v. University Hospital – UMDNJ, _____ N.J. Super. _____, _____ A. 2d _____, No. A-0257-05T50257-05T5 (Ct. App. NJ Nov. 15, 2006)

MED ICAL S TAFF

On-call physicians have a duty to emergency patients

Facts

Loyce Plummer was 69 years old when she was admitted to Forest Park Hospital on July 5, 2002. Her temperature was 101 degrees F and she was experiencing shortness of breath, dizziness, chest pain, weakness, headaches and nausea. She was on Cou-madin. She was diagnosed with pneumonia and was admitted by her primary care physician, Dr. Hanson.

Ms. Plummer attempted to go to the bathroom in the early morning hours on July 7 and became entangled in the cords and IV tubing beside her bed. She fell and struck her head. Dr. Krinochkin, a fi rst-year intern, was called to see her. He sutured a small laceration through her eyebrow and performed a neurologi-cal assessment. He returned regularly to assess her and became concerned about her neurological status at approximately 2:50 a.m. He ordered a CT scan after conferring with the resident on duty. Th e CT results were returned at 4:45 a.m. and showed an epidural hematoma and a subarachnoid hemorrhage. It was determined that Ms. Plummer needed to be seen by a neurosur-geon, so a call was placed by the hospital operator.

Greg Bailey, MD, was the neurosurgeon on call for Forest Park that night. However, he had determined that he would not be available to take call and arranged for Charles Wetherington, MD, an associate in his group practice, to take call. Th is arrange-ment was not disclosed to Forest Park. Although Dr. Wether-ington had agreed to take call for Dr. Bailey, he did not have privileges at Forest Park. Consequently, when he responded to the page at approximately 5:45 a.m., he directed that Ms. Plummer be transferred to another hospital.

Ms. Plummer was transferred to Saint Louis University Hospital and was admitted there at 9:30 a.m. Unfortunately, the CT scan was not transferred with her. She was admitted to a bed for observation and the physicians began to reverse the eff ects of the Coumadin. A second CT scan was performed at approxi-mately 11:57 a.m. because her neurological condition had con-tinued to deteriorate. An emergency craniotomy was performed at 2 p.m., but Ms. Plummer died approximately two weeks later. Th e cause of death was listed as “pneumonia complicating closed head injury.”

Suit was brought by her estate against, inter alia, Dr. Bailey for wrongful death. Plaintiff s dismissed Dr. Krinochkin and the resident who had been supervising him. Th ey settled with Forest Park. Th e matter went to trial and the jury returned a verdict of $400,800 against Drs. Bailey, Wetherington and Hanson. One half of that amount was assessed against Dr. Bailey. Th is appeal ensued.

Issues

Did Dr. Bailey owe a duty to Ms. Plummer? Did he breach that duty? Did the plaintiff prove causation, i.e., was it shown that Ms. Plummer would not have died but for Dr. Bailey’s negligence?

Analysis

Th e court ruled that a claim of this sort could have been brought under either a general negligence theory or a medical negligence theory. Th e court examined the claim under a general negligence theory, and then determined that it did not need to be examined pursuant to a medical negligence theory. Th e court noted that, in Missouri, there are three elements to a cause of action sounding in negligence: 1) there must have been a duty to be performed by the defendant; 2) there must have been a breach of the duty; and 3) there must have been an injury that resulted from the breach.


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If the claim sounds in medical negligence, it must involve medi-cal science and the duty must arise out of the physician-patient relationship.

Th e court held that the existence of a duty was a matter of law for the court to decide. In a general negligence claim of this sort, there must be a public policy that favors the imposition of a duty. In weighing this, the court must balance the economic burden on the actor and the community, the prevention of future harm, and the foreseeability of harm. Th e court noted that requiring a physician to notify the hospital for which he/she is taking call of his/her unavailability is not an unreasonable burden. By doing so, the physician could certainly prevent future harm. Finally, the harm that befell Ms. Plummer was certainly foreseeable. Accord-ingly, the court found that there had been a duty imposed on Dr. Bailey and that it had been breached.

Dr. Bailey argued that the plaintiff had failed to establish that Ms. Plummer’s death was caused by the breach of his duty. In this case, it was necessary to show that, but for the breach of the duty, Ms. Plummer would not have died. As noted above, the emergency craniotomy was not performed until 2 p.m. on July 7. Plaintiff put on expert testimony that established that Ms. Plum-mer would have survived had the craniotomy been performed by 9:30 a.m. on July 7. Accordingly, the jury was warranted in fi nding that, but for the defendant’s negligence, Ms. Plummer would not have died.

Th is case is remarkably similar to a previous case in Missouri, Millard v. Corrado, 14 S.W. 3d 42 (Ct. App. Mo. 1999), in which the court held the same way. Consequently, this case does not appear to establish new law in Missouri.


Th is case highlights numerous issues with on-call specialists, which are quickly becoming among the thorniest issues with which a hospital, and the organized medical staff , must deal. While there are no quick and easy solutions to the issues presented by this case, there are solutions.

First, there must be a policy on re-arranging the call schedule that is made known to the medical staff . Th e policy must specify who is to be notifi ed if any changes are made to the call sched-ule, as well as how far in advance they must be notifi ed. It must specify that any alternate provider must hold privileges, at the hospital for which call is being taken, to perform services for which he or she is assuming call responsibilities. Any deviation from this policy should be grounds for disciplinary action.

Second, there must be a prescribed response time, specifi ed in minutes, within which the on-call specialist must respond. Th is time must be both reasonable and realistic. Th e Interpretive Guidelines promulgated by the Centers for Medicare & Med-icaid Services (CMS) require that “[t]he expected response time should be stated in minutes in the hospitals [sic] policies. Terms such as ‘reasonable’ or ‘prompt’ are not enforceable by the hos-pital and therefore inappropriate in defi ning physician’s response time.” CMS Interpretive Guidelines, 42 C.F.R. §489.24(j)(1). Many of the problems in this case were associated, to some extent, with the confusion regarding the availability of resources

at Forest Park. Much of the delay could have been avoided had the problem with the call schedule been recognized and rectifi ed immediately.

Th ird, if the on-call specialist is unavailable or does not respond within the specifi ed period of time, the hospital must have a plan for managing patients who require that specialist’s care. Th is can be back-up call or it can be a plan to routinely transfer patients as expeditiously as possible. CMS Interpretive Guidelines, §489.24(j)(2)(i). CMS does not have specifi c requirements, but it does require that hospitals be prepared.

Fourth, individuals must be listed on the call schedule. It was not clear in this case how the hospital even managed to contact Dr. Wetherington, since it was unaware of the change in the schedule. It probably contacted the group. Since Dr. Wethering-ton was a member of Dr. Bailey’s group practice, it appears that Dr. Bailey assumed that it was permissible for him to take call at Forest Park. However, Dr. Bailey, not his group, was on call that night. CMS specifi cally requires that “Physicians [sic] group names are not acceptable for identifying the on call physician. Individual physician names are to be identifi ed on the list.” CMS Interpretive Guidelines, 42 CFR §489.20 (r)(2).

Fifth, although this was not a transfer that was subject to EM-TALA, the results would have been better had the requirement that all available documentation and records be sent along with the patient. Th e report on the CT scan was not sent with the patient and clearly added to the delay in performing the crani-otomy. Staff members need to be aware that all records need to be sent with all transfers. Th is process should be audited on a regular basis to ensure optimal performance.

Th is case presents a laundry list of faulty processes and missed opportunities. Unfortunately, this was also a case in which the margin for error was extremely thin, and the failure had cata-strophic consequences.

Brown v. Bailey, _____ S. W. 3d _____, No. ED86387 (Ct. App. Mo. November 14, 2006)

V ICAR IOUS L IAB I L I TY

Disclaimer of agency may be effective to prevent vicarious liability

Facts

Abby Ellis consulted with her primary care physician, Dr. Gerald Rightmyer, on Oct. 23, 2001 for complaints of weight loss, nausea and vomiting. He admitted her to Community Method-ist Hospital that day. She was seen by Dr. Ricardo Madella, a general surgeon, who diagnosed her condition as hypothyroidism and, apparently, although not specifi cally stated in the court’s decision, cholecystitis. He felt that she was not a candidate for surgery. She was discharged on Nov. 3, 2001.

Ms. Ellis presented to the emergency department at Community Methodist Hospital on Nov. 5, 2001 with continuing complaints of nausea and vomiting. She was again seen by Dr. Madella and


by Dr. Michael Mayron (a neurologist). Despite his earlier fi nding that Ms. Ellis was not a candidate for surgery, Dr. Madella performed a cholecystectomy on her. She suff ered per-manent brain damage following the surgery and continued to be incapacitated at the time of this decision.

At the time of her second admission to the hospital, Ms. Ellis signed a consent form that stated, in pertinent part:

Consent to General Diagnostic, Medical, and Surgical Treat-ment: I understand am [sic] under the care of the attending physicians and the hospital is not liable for following instruc-tions of said physicians… I understand that all physicians at Methodist Hospital including the radiologists, anesthesiolo-gists, CRNA’s, [sic] Emergency Room Physicians and Pa-thologists are independent contractors and are not employees or agents of Methodist Hospital.

Suit was brought by Ms. Ellis’ sister, Phyllis Hodges, acting as her guardian, against Drs. Rightmyer, Madella and Mayron, and against Community Methodist Hospital for medical malpractice. Th e allegations against Community Methodist Hospital were that the hospital was vicariously liable for the actions of the physicians, who were acting as the hospital’s agents. Th e trial court granted summary judgment for the hospital on the grounds that it had not, as a matter of law, deviated from the standard of care and that the physicians were not acting as its agents. Th is appeal ensued.

Issues

Were the physicians acting as the agents of the hospital for the purposes of vicarious liability?

Analysis

Kentucky has long recognized that physicians practicing in the emergency department of a hospital can be considered the agents of the hospital. Th e Supreme Court of Kentucky has stated that the principles of ostensible agency are generally applicable in the context of treatment at a hospital emergency room “absent evidence that the patient knew or should have known that the treating physician was not a hospital employee when the treat-ment was performed (not afterwards).” Paintsville Hospital Co. v. Rose, 683 S.W.2d 255 (Ky. 1985). Th e court of appeals further noted that admission forms can be notices that the physicians are not agents of the hospital. Floyd v. Humana of Virginia, Inc., 787 S.W.2d 267 (Ct. App. Ky. 1989).

Accordingly, the court held that, as a matter of law, the consent form was suffi cient notice that the physicians were not the agents of the hospital. It affi rmed the granting of summary judgment.


Th is case underscores the value of pre-emptive notifi cation of physician status at the outset of the episode of care. It is diffi cult to say, with any level of certainty, if this case might have been decided diff erently had the abovementioned section not been in the consent form. Th e court might have had diffi culty fi nding that Dr. Rightmyer was an agent of the hospital, since he had

been Ms. Ellis’s primary care physician for six years. However, she met Drs. Madella and Mayron through the hospital, so it is possible that the hospital could have been held liable for their actions. Some courts have held hospitals liable for the actions of independent medical staff members under similar circumstances. See, e.g., McCorry v. Evangelical Hospitals Corp., 331 Ill. App. 3d 668, 771 N.E. 2d 1067, 265 Ill. Dec. 108 (Ct. App. Ill. 2002).

Notifi cations of the sort used in this case do not always work. Some courts have held that hospitals have a non-delegable duty to provide appropriate emergency care. See, e.g., Simmons v. Tuomey Regional Medical Center, 533 S.E. 2d 312 (S.C. 2000); Jackson v. Power, 743 P. 2d 1376 (Alaska 1987); Irving v. Doctors Hospital of Lake Worth, 415 So. 2d 55 (Ct. App. Fla. 1982); Martell v. St. Charles Hospital, 523 N.Y.S. 2d 342 (N.Y. Sup. Ct. 1987). However, the added expense of inserting such a phrase into an admission form, or hanging signage on the walls, pales in comparison to the potential liability that it may prevent. Such language should be standard in all hospitals.

Ellis v. Community Methodist Hospital, ____ S.W. 3d ____, No. 2005-CA-001537-MR (Ct. App. Ky. Nov. 22, 2006)

MED ICAL MALPRACT ICE

Surgeon has non-delegable duty to ensure no foreign bodies are left behind

Facts

O’Greata Fields, then 75 years old, suff ered from vascular disease that had led to the amputation of her left leg above the knee. She was admitted to Henry Mayo Newhall Memorial Hospital on Sept. 11, 2002 for pain management after she fell at home. An angiogram showed that the arteries in her right leg were also blocked. She was referred to Frank Yusuf, MD, for treatment.

Dr. Yusuf took Ms. Fields to surgery on Sept. 19, 2002 to perform an arterial bypass graft to install a new blood vessel in Ms. Fields’ right leg. He inserted sponges to absorb and stem the fl ow of blood. Two sponge counts were performed and both were correct. Dr. Yusuf performed a second surgery on Ms. Fields on Sept. 20, 2002, this time to remove a blood clot that had devel-oped in the grafted vessel. He again used sponges to help control the fl ow of blood in the incision. A sponge count was performed and was correct.

On subsequent examination, Dr. Yusuf noted that Ms. Fields’ leg was swollen. He realized that the incision was infected on Sept. 28, 2002 and he opened and cleaned the wound. Th e wound continued to be infected, so Dr. Yusuf opened the wound again on Oct.14, 2002 and discovered a sponge behind Ms. Fields’ right knee. He removed the sponge, determined that she still had a pulse in the artery, and closed the wound. He left two drains in the wound to facilitate healing. Unfortunately, gangrene set in and Ms. Fields’ right leg had to be amputated above the knee.

Ms. Fields brought suit against Dr. Yusuf and the hospital. Th e hospital settled its claim before trial. Th e jury found that Dr. Yusuf had not been negligent. Th is appeal ensued.


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Issues

Should the jury have been instructed on the theory of res ipsa loquitur? Should the jury have been instructed that a surgeon has a non-delegable duty to ensure that no foreign bodies are inadvertently left in a surgical wound? Should the jury have been instructed that a surgeon acts as the “captain of the ship” and is responsible for the actions of his “temporary” employees?

Analysis

Th e trial court did not instruct on the theory of res ipsa loquitur because it felt that not all of the necessary elements had been established. In order to allow the jury to infer negligence though res ipsa loquitur, it is necessary to show: 1) that the event is one that does not normally occur in the absence of negligence; 2) that the instrumentality that caused the harm was under the exclusive control of the defendant; and 3) the plaintiff must not have performed any act or omission that could have contributed to the injury. Th e trial court held that Dr. Yusuf did not have exclusive control over the sponge count because that task was the responsibility of the nurses. Th e court of appeals held, however, that Dr. Yusuf had a non-delegable duty to ensure that no objects were inadvertently left inside the wound, and accordingly held that it was error to fail to instruct the jury on res ipsa loquitur.

Th e trial court also refused to instruct the jury that Dr. Yusuf had a non-delegable duty to ensure that all foreign objects had been cleared from the surgical wound. Dr. Yusuf argued that his only duty, since the hospital had the duty to conduct the sponge counts, was to visually and manually examine the surgical wound for foreign objects, which he did. Th e court of appeals, however, held that a surgeon does have a non-delegable duty to ensure that foreign objects are not left in the wound. In order to show com-pliance with this duty, the surgeon must show that his actions to ensure that no foreign object was left behind were reasonable. Since the jury was not instructed on this issue, it did not weigh the reasonableness of Dr. Yusuf ’s actions, hence it was error to refuse to so instruct them.

Th e trial court additionally instructed the jury on Dr. Yusuf ’s potential liability for the actions of the nurses as the “captain of the ship,” but the plaintiff objected to the specifi c instruction. Th e court of appeals found that the “captain of the ship” doctrine was applicable, which meant that the nurses in the operating room were “special” or “temporary” employees of the surgeon, although they were clearly not employed by him. Th e instruc-tion that the trial court gave was that “a surgeon is responsible for the negligence of assisting nurses ‘if the surgeon has direct control over how they perform their duties.’” Th e court of ap-peals held that the correct instruction should have been that “any negligence on the part of an assisting nurse is the negligence of a surgeon if ‘the nurse is under the direction of a certain surgeon in charge.’”

For all of the above reasons, the court of appeals reversed the judgment of the trial court and remanded the case for further proceedings.


While this case may represent an economic setback for surgeons, it does make a good point. Th at is that patient safety in the OR, and the diligence necessary to prevent leaving foreign bodies behind, is everyone’s responsibility.

Th is writer is aware of anecdotal evidence that indicates that some defense counsel consider that the surgeon should, under normal circumstances, be relieved of responsibility for retained foreign bodies. While this may be counter-intuitive for some readers, there is a reasonable foundation for this belief. Th ese individuals assert that the surgeon should be able to rely upon the counts performed by the surgical staff , and that it is not the surgeon’s responsibility to count objects entering the surgical fi eld.

It must be emphasized that the foregoing attenuation of responsibility should only be applicable when the surgeon is not directly or indirectly responsible for the retention of the foreign body. It should not be applicable if the surgeon intentionally leaves an object in the wound that was not supposed to be left in the wound, if the surgeon refuses to allow the requisite counts to be performed or if the surgeon refuses to order an X-ray to rule out a retained foreign body when the count is incorrect. If the surgeon has obstructed the process in some way, he or she should be fully culpable.

While the surgeon may be relieved of responsibility by a consid-erate co-defendant hospital or ambulatory surgery center, this case shows clearly that the courts are not nearly so charitable.

Fields v. Yusuf, 144 Cal. App. 4th 1381 (Ct. App. Cal. 2006)

V ICAR IOUS L IAB I L I TY

Hospital may be responsible for actions of resident it did not employ

Facts

Gary Vivone underwent the removal of a cyst on his forehead on Sept. 12, 2001 at Broadlawns Medical Center. Th e surgery was performed by Dr. Hiep Phan, who was, at the time, a fi fth-year resident employed by Iowa Methodist Medical Center. He was serving a rotation at Broadlawns as part of his residency. Al-though it does not precisely appear how Mr. Vivone came under the care of Dr. Phan, it appears that Dr. Phan was assigned to provide the care that Mr. Vivone required.

Mr. Vivone noticed that his forehead was swelling after the sur-gery and notifi ed Dr. Phan. Dr. Phan re-stitched the wound and applied a pressure dressing. He advised Mr. Vivone to return in fi ve days. Dr. Phan removed the dressings on Sept. 17, 2001 and applied a new pressure dressing. Mr. Vivone returned on Sept. 24, 2001 to have the new dressings removed, at which time Dr. Phan determined that the tissue around the wound had become necrotic. Mr. Vivone was left with a permanent indentation on his forehead.


Mr. Vivone fi led suit against Dr. Phan, his supervisors in the residency program and Broadlawns for medical malpractice. Dr. Phan was not served properly, so he and his supervisors were dismissed from the case. Th e case proceeded against Broadlawns alone. Plaintiff ’s experts testifi ed that the injury was caused by too much pressure for an excessive period of time. Th e defense centered around Broadlawns’ liability for Dr. Phan’s actions. Th e jury returned a verdict for $160,000 and Broadlawns appealed the trial court’s judgment on the verdict.

Issue

Should Broadlawns be held liable for the actions of Dr. Phan, even though he was not employed by the hospital?

Analysis

Th e court of appeals reviewed the elements of liability under three diff erent theories: respondeat superior (employee/employer relationship), the “borrowed servant” doctrine and agency. Th e court determined that Broadlawns could be held liable for Dr. Phan’s actions under any of these theories.

Under the theory of respondeat superior, the court looked at the following elements to determine whether an employment relationship existed: 1) the right of selection; 2) responsibility for payment of wages; 3) the right to discharge; 4) the right to control the work; and 5) the benefi t of the work. Th e primary element among these is the right to control the actions of the “employee.” Although the court acknowledged that some factors favored a fi nding that Broadlawns was not Dr. Phan’s employer (such as right of selection/discharge and payment of wages), other factors favored an affi rmative fi nding (right to control day-to-day activities). Th e court held that this determination was best left to the discretion of the jury.

Under the “borrowed servant” theory, the court again held that the jury could have found that Dr. Phan was the borrowed servant of Broadlawns. Th is test focuses almost exclusively on the issue of control. If the “borrowing” employer exercises the right to control the borrowed servant’s actions (beyond merely point-ing out the work to be done), the borrowing employer may be liable under the doctrine of respondeat superior for the actions of the borrowed employee. Th e court found that Broadlawns exercised the requisite control over Dr. Phan’s actions to warrant the imposition of liability under this theory.

Under the theory of liability due to agency, Mr. Vivone argued that he looked to Broadlawns for care and that he did not exercise control over the selection of the physicians who treated him. Th e court of appeals held that the jury could fi nd that Dr. Phan appeared to be the agent of the hospital for the purposes of vicarious liability.

Accordingly, the court of appeals affi rmed the judgment of the trial court.


While the agreement between Broadlawns and Iowa Methodist adequately addressed the operational details of the relationship, it appears that it neglected to address the allocation of responsibil-

ity for the medical negligence of the residents who were rotating through Broadlawns. While there is no hard and fast rule regard-ing how this should be addressed, because the parties to diff erent agreements may choose to address it diff erently, it nonetheless should be addressed to avoid surprises later.

If the parties had wished for Iowa Methodist to retain the re-sponsibility, the agreement could have specifi ed that the residents were the employees of Iowa Methodist for all purposes at all times. While this might have worked, it would really only have been eff ective if Iowa Methodist had also retained the right to control the residents’ activities, e.g., by having a faculty attending physician, who was employed by Iowa Methodist, supervise the residents at Broadlawns.

Th e most eff ective way to allocate liability in situations such as this would be to insert an indemnifi cation (“hold harmless”) clause into the agreement. Th is would have placed the responsi-bility where the parties intended, and it could have required Iowa Methodist to assume the defense of Broadlawns. Th is would have held Broadlawns completely harmless in the event of a suit.

In the absence of an allocation of liability, it is up to the court to decide. Th is may be in conformity with the intentions of the par-ties, or it may not be. It does not appear that the court’s decision was in conformity with Broadlawns’ expectations in this case.

Vivone v. Broadlawns Medical Center, _____ N.W. 2d _____ (Ct. App. Iowa December 13, 2006)

INFORMED CONSENT

Physician had duty to warn of procedure not performed

Facts

Latisha Simon consulted with Dr. Johnny R. Biddle, Jr., an obstetrician/gynecologist, for prenatal care and the delivery of her child. She had delivered by cesarean section in the past and wished to do so again on this occasion. She also wished to under-go a tubal ligation at the time of delivery. She signed the consent forms that were provided to her in July 2000. She delivered her baby without incident in August 2000.

However, Dr. Biddle did not perform the tubal ligation because he noted that Ms. Simon had not signed a consent form for that procedure. He noted in his history and physical (dated Aug.1, 2000) that he would not be performing the tubal liga-tion because no consent form had been signed. He noted in his operative report that he did not perform the procedure because there was no consent form on the record for it. Unfortunately, it appears, at least by Ms. Simon’s testimony, that Dr. Biddle never told her either that it would not be done, or that it had not been done. Accordingly, she was surprised to learn, in June 2001, that she was pregnant again.

Ms. Simon brought suit against both Dr. Biddle and Lake Charles Memorial Hospital for failing to perform the tubal liga-tion and for failing to inform her that it had not been performed. Th e matter went before a medical review panel that found that Dr. Biddle had not breached the standard of care. Based on this fi nding, the trial court dismissed the case. Th is appeal ensued.


Issues

Did Dr. Biddle have an obligation to inform Ms. Simon that he had not performed the tubal ligation?

Analysis

Th e court noted that it was clear that Dr. Biddle had an obliga-tion to inform Ms. Simon that he had not performed the tubal ligation. She had expressed a desire to have the procedure per-formed. If he could not perform it due to technical problems, he should have informed her so that she could take steps to prevent the harm that ultimately befell her. If there are issues regarding who actually said what and when, these issues are for a jury to decide.

Th e court held that the fi ndings of the medical review panel were improper. Th e medical review panel appeared to assume that Dr. Biddle must have told Ms. Simon that he did not perform the tubal ligation. Th is was not its function. Whether Dr. Biddle did or did not tell her he had not performed the procedure was for the jury to decide.

Th e court also held that Ms. Simon did not need expert testimo-ny to establish the breach in the standard of care. Th e court held that it was within the abilities of a lay jury to decide whether it constitutes negligence when a physician fails to inform a patient that a surgical procedure was not performed even though it had been requested. Although the court did not specifi cally state this, the court implied that the matter did not need to go before a medical review panel, because it was not really a professional negligence action, hence the fi nding of the medical review panel could be disregarded.

Th e court of appeals reversed the dismissal of the case.


Th is case may be more interesting for the things that the court did not say (or consider) than it is for the things that the court did say (or consider). Th ere are issues that this court did not resolve, possibly because it was not asked to consider them.

One issue is the obligation of the physician to obtain the patient’s informed consent for any procedure that the patient desires to have performed. Th is obligation is an affi rmative obligation that imposes a duty on the physician. Th e physician should not be relieved of the obligation simply because he failed to have the correct form signed. It is the physician’s duty to ensure that all of the proper mechanisms have been deployed to ensure that the consent has been properly obtained. It is not the patient’s obligation to know whether he or she has signed all of the proper forms.

Another issue is whether the physician should go forward with a procedure knowing that all of the forms have not been com-pleted and, consequently, that not all of the components of the procedure will be performed. Dr. Biddle knew, at the time he completed the H&P, that not all of the forms had been complet-ed. Rather than ask the patient to complete the necessary forms, he simply refused to perform the procedure.

It may also be the case that the “time out” was performed improperly. Th e time out should involve the patient and should establish all of the procedures to be performed during the case. Had the time out been done appropriately, the patient might have noted that she was not merely there for a cesarean delivery, but also for a tubal ligation. Whether the staff would have noted the discrepancy is debatable, since this would depend on how the case was scheduled.

Th e court also did not address the issue of damages. Th is is a thorny issue that courts in many states have grappled with and have come to diff erent conclusions. Should a plaintiff be permit-ted to recover the costs associated with raising a normal child? Some states have answered this in the affi rmative. See Custodio v. Bauer, 251 Cal. App. 2d 303, 59 Cal. Rptr. 463 (Cal. Ct. App. 1967); Lovelace Med. Ctr. v. Mendez, 111 N.M. 336, 805 P.2d 603 (N.M. 1991); Zehr v. Haugen, 318 Ore. 647, 871 P.2d 1006 (Or. 1994); Marciniak v. Lundborg, 153 Wis. 2d 59, 450 N.W.2d 243 (Wis. 1990).

Other states, however, have held that there should be an off set for the joy, aff ection and companionship associated with raising a normal child (even an unwanted one). See University of Arizona Health Sciences Ctr. v. Superior Court, 136 Ariz. 579, 667 P.2d 1294 (Ariz. 1983); Ochs v. Borrelli, 187 Conn. 253, 445 A.2d 883 (Conn. 1982); Sherlock v. Stillwater Clinic, 260 SN.W.2d 169 (Minn. 1977). Other states, probably the majority, have held that the costs associated with the sterilization, pregnancy and delivery can be recovered, but not the costs of raising a healthy child. See Wasdin v. Mager, 274 Ga. App. 885, 619 S.E.2d 384 (Ct. App. Ga. 2005); Boone v. Mullendore, 416 So. 2d 718 (Ala. 1982); Terrell v. Garcia, 496 S.W.2d 124 (Tex. Civ. App. 1973); Beardsley v. Wierdsma, 650 P.2d 288 (Wyo. 1982). Louisiana appears to fall into this last category, but the issue was not ad-dressed by the court. See Pitre v. Opelousas General Hospital, 530 So. 2d 1151 (La. 1988).

Why Dr. Biddle approached this case the way he did is unclear. It may have been that he was standing on principle and refus-ing to perform a procedure for which he did not have consent (although he could have gotten consent once he realized that he did not have it up to the point where Ms. Simon received her pre-op medication). It may have been that he is morally opposed to voluntary sterilization procedures (although he could have refused to perform the procedure when asked). Whatever the reasons for his actions, the matter could, and should, have been handled more appropriately.

Simon v. Biddle, _____ So. 2d _____, No. 06-435 (Ct. App. La. December 29, 2006).

ABOUT THE AUTHOR

John C. West, JD, MHA, DFASHRM, is a clinical risk management and patient safety specialist with the Risk Management and Patient Safety Institute, Lansing, MI.

resident physicians held to a general standard of care

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