[Updated September 2, 2017. The Journal of the American Medical Association – Surgery published an article on this very subject, noting “Cases more often questioned the perioperative medical knowledge, decision making errors, and injuries than intraoperative errors and injuries.” Most of the lawsuits related to lack of direct supervision by attending physicians. About half of the malpractice lawsuits naming a resident resulted in the patient winning a settlement or jury verdict.]

It may sound strange coming from me, but I don’t like suing people, particularly not in personal injury or professional liability actions where the real target of the suit is not even the company that employed the negligent person, but really the employer’s insurance company.

But I often end up suing everyone I can, including employees, for one reason: I don’t have a choice. If, years down the road, some hospital or law firm or bank or construction company wants to claim that the negligent employee was an “independent contractor” or “outside this course and scope of their employment,” or that I sued the wrong company and the negligent employee was actually a “borrowed servant” or serving merely in a “joint venture,” then I have to spend dozens, sometimes hundreds, of hours trying to defeat that argument and, if I lose it, then I have to tell my client to sue me.

Which brings us to Kevin Pho’s argument in favor of granting medical students immunityand Erik Turkewitz’s at New York Personal Injury Law:

This is the issue for the lawyers: Why sue these doctors-to-be or young residents if there is a medical practitioner or hospital that is supervising, who will be liable for their conduct?

Personally, I would prefer not to sue residents, and I certainly wouldn’t want to sue a medical student, but attorneys representing patients are sometimes forced to if they are going to fulfill their obligation of “zealous advocacy” to their clients.

Erik then explains, at length, why he had no choice but to sue a medical resident in one of his cases, in part because the defense lawyer and defendant hospital refused to produce records unless he sued the resident.

But let me address specifically one of Dr. Pho’s arguments:

Injured patients do not benefit from suing medical students.  If negligence occurs, a supervising physician will answer the charges, and participate in the malpractice process.

That would be great if it happened, but it doesn’t. In virtually all cases, the supervising physician will deny any responsibility whatsoever for the patient’s injuries, often because, they claim, they weren’t even at the hospital when the malpractice occurred — a fairly common occurrence in some emergency departments, where the residents do most of the examinations and perform most of the care.

In many cases the hospital will also deny responsibility for the physicians practicing within its walls, will refuse even to identify who was involved in the patient’s care, and will claim, with a straight face, that patients walking into a hospital understand the distinction between the hospital and some physician practice group which happens to staff a particular department within the hospital, and will claim that the hospital is not in any way responsible for the actions of the practice group within the hospital.

Sound ridiculous, evasive, and irresponsible? It is, but it’s also common practice. Indeed, in most medical malpractice cases, the hospital, practice group, and supervising physician will not admit any responsibility for the resident until after the statute of limitations has run, because the insurance company has precluded them from doing so, even if they genuinely believe they are responsible.

So, for now the residents often get sued, although they’re frequently also dropped from the case — even, e.g., surgery cases where the resident themselves did the negligent act, like perforating organs — once the attending physician and hospital enter into appropriate stipulations. More to the point, I have never heard of a single instance in which a medical resident paid a dime to resolve a medical malpractice claim; in virtually every instance, the entire settlement or judgment was covered by insurance, and, for the tiny fraction of cases otherwise, recovery was obtained against the hospital.