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Liability: Courts judge resident conduct by same standards as those that apply to attending physicians
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It is logical that physician impairment, whether from substance abuse or physical exhaustion from overwork and lack of sleep, can contribute to errors during patient treatment. Since the seminal 1984 Libby Zion case, there has been attention focused on physician working hours with the goal of ensuring patient safety.
In this month’s column, we revisit the Libby Zion case, including the laws and regulations it ushered into the medical field. The information is relevant in examining recent assertions that, despite workplace hour restrictions, today’s physicians in training may still suffer from health impairments that can contribute to increased patient risk and create new sources of liability.
Libby Zion case
In 1984, an 18-year-old patient named Libby Zion went to the emergency room with fever, disorientation and agitation. She was a college student who had a history of depression. From the emergency room, she was admitted by the resident on call, in consultation with the attending physician who was at home. Records show the diagnosis was uncertain and was listed as a “viral illness with hysterical symptoms.” After admission for hydration and observation, around 3 o’clock in the morning, the resident went off on the wards to take care of the 40 other patients under her care. The supervising senior resident went to an adjacent building to catch some sleep.
B. Sonny Bal
Nurses twice contacted the resident to notify her that the patient was agitated. Painkillers and sedatives were prescribed by telephone, including physical restraints to prevent the patient from hurting herself. The patient fell asleep, but by 6:30 am, her vital signs showed a dangerous fever of 107°. Cardiac arrest and death followed soon thereafter. The hospital called the parents, telling them their daughter had died of a mysterious infection and the physicians had done everything possible to help their daughter.
The case would have ended there, but the decedent’s father, Sidney Zion, a lawyer and journalist in New York City, was determined to get some answers. The more he inquired, the more it became apparent to Sidney Zion that his daughter had died because of inadequate staffing at the teaching hospital. He wanted to ensure that other patients should not suffer the same fate and neglect as his daughter. Sidney Zion was a columnist for the New York Daily News and well-known among the journalists and lawyers of New York City. He remarked in an op-ed: “You don’t need kindergarten to know that a resident working a 36-hour shift is in no condition to make any kind of judgment call — forget about life-and-death.”
What followed were a series of inquiries and revelations that played out in the press, as the view of bedraggled, tired and unsupervised intern wreaking damage in a teaching hospital that lacked staffing and overworked their resident physicians. The facts pertaining to the exact cause of Libby Zion’s death were never fully understood, although it was speculated that a drug interaction led to a so-called serotonin syndrome that complicated the patient’s hospital course and led to her untimely demise.
Legal proceedings
In the winter of 1994, Zion v. New York Hospital finally went to trial. Television eagerly covered the much-awaited legal proceedings which were expectedly acrimonious and full of vitriol on both sides of the litigation. The hospital asserted a defense, unsupported by toxicology testing and vigorously disputed by the plaintiffs, that the patient had died because of cocaine ingestion and she neglected to give a history of cocaine use to her physicians. Faced with contradictory evidence, the jury apportioned liability between the physicians and the patient, returning a verdict of $375,000 — an outcome Sidney Zion would call a travesty of justice.
An angry Sidney Zion launched a public crusade on behalf of patients and families who believed they had been injured by the medical profession. His efforts led to a movement in the 1990s that targeted medical errors, and cast the medical profession in a generally unfavorable light. Other aggrieved families joined the fight that would ultimately change the landscape of residency training and bring the subject of medical errors into the public discussion.
Aftermath
The New York State Department of Health Code, Section 405 is called the “Libby Zion Law” and it limits the amount of resident physicians’ work in New York state hospitals to roughly 80 hours per week. In 2003, the Accreditation Council for Graduate Medical Education made reduced work hours mandatory for the accreditation of residency training programs across the United States. It is now commonplace to see residents charting their hours spent at work and physician training programs are scrutinized to ensure compliance with resident work hours regulations.
A 2004 study published in the New England Journal of Medicine found eliminating extended work shifts improved the attention span of resident physicians. A 2006 study published in the Journal of the American Medical Association (JAMA) found about 80% of resident physicians nationwide still sometimes worked beyond the prescribed hours. Some physicians, particularly surgeons, resisted reform efforts, stating one could not become a qualified physician without being in the trenches and experiencing the first unpredictable 36 hours of a patient’s illness or recovery from surgery.
Residency today
Lawrence H. Brenner
Despite residency hour limitations introduced by the Libby Zion litigation, medical training remains stressful, at least according to some recent press reports. Daniel R. George, PhD, MSc, and Michael Green, MD, MS, FACP, teach the “Comics in Medicine” class at Penn State College of Medicine. These authors reported in JAMA that when medical students were encouraged to express their feelings by drawing comics, nearly half of them depicted their supervisors as monsters and workplaces as dank dungeons. The students depicted themselves as sleep-deprived zombies who walk through barren post-apocalyptic landscapes.
This above article studied 66 fourth-year students who took the humanities class taught by the investigators; therefore, such observations may not be generalizable. However, a meta-analysis, also published in JAMA, found that nearly one-third of more than 17,000 medical residents in 31 studies screened positive for depression or depressive symptoms. According to Thomas L. Schwenk, MD, dean of the University of Nevada Medical School, over a lifetime the depression rate for physicians is similar to the general population — about 10% to 13% in male physicians and 20% in females compared with 16% overall. Thus, the number of physicians affected during their residencies is significantly higher than these figures.
Medical training culture
The medical training system raises concerns that depression and mental dysfunction in resident physicians will contribute to poor-quality patient care and increased medical errors. The medical profession recognizes the importance of health and well-being, but the value system and culture in training programs still frowns upon exposing vulnerability. It is almost unacceptable for a resident to ask to stay home when ill, or ask for help in coverage if a parent or child is in need. In particular, the system discourages the expression of vulnerability in the face of overwhelming emotional and physical demands.
Much like the evolving cultures in the military, university fraternities and pilot training, an unwritten code of training in medicine is learning to treat underlings harshly, a behavior that has been considered acceptable. There are undoubtedly many other factors also, such as the length of training, financial pressures, future income uncertainty, demands of technology and generally unfavorable views of medicine and the attendant lack of mentorship from senior, more enlightened physicians.
Even with the caps on working hours, the first years after medical school are hard, marked with long hours, stress, fatigue, and social isolation. The cap on working hours itself is rather high at 80 hours a week. Some scholars have speculated that other than capping resident hours, nothing much has changed, i.e., medical residencies today are not much different from those of an earlier era.
Legal liability
In terms of legal liability for medical malpractice, the law has evolved such that most courts today judge resident conduct by the same standards as those that apply to a generalist attending physician or a specialty-specific attending physician. The law seeks a balance between the reality that residents deliver a considerable amount of care in teaching institutions across the United States, and the societal need for well-trained physicians vs. patient safety and well-being when care is delivered by resident physicians.
Although caps on resident working hours may have addressed, at least in part, the concerns that arose from the Libby Zion litigation, the culture of medical training still needs to address the impact on physician well-being and mental health. As some of the sources mentioned in this column attest, the proportion of physicians in training who suffer from impairment related to depression and related conditions is concerning.
Errors in the medical management of patients lead to legal risk for hospitals and university programs, adding to system costs. Now that several reports have identified physician-related risk factors that could jeopardize clinical care and contribute to errors, the onus is upon training programs to take a proactive, affirmative approach to identify and timely address health concerns among physicians in training.
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- B. Sonny Bal, MD, JD, MBA; and Lawrence H. Brenner, JD, are partners in the law firm of BalBrenner/Orthopedic Law Center and are the exclusive providers of loss prevention, risk management and quality improvement services for the Orthopedic Physician’s Insurance Company. Brenner can be reached at lbrenner@balbrenner.com.
Disclosures: Bal and Brenner report no relevant financial disclosures.