AANS Neurosurgeon : Medicolegal

Volume 24, Number 2, 2015

No Lifeguard on Duty: Resident Supervision Required

Caitlin C. Podbielski, Esq.

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Residency is an important part of the education of U.S. physicians, but because patient care is the vehicle through which residents learn, the limitations of a resident’s experience can pose significant patient safety concerns. Accordingly, the public and private regulators of the medical profession have been tasked with building a careful balance between experiential learning and patient safety in structuring residency programs. This article will explore the unique situation of residents within the law; provide an overview of the current structures intended to create a safe but educational experience for residents; and conclude with a discussion of how the law currently views the responsibility of resident supervision.

Residents Under the Law
Medical residents are uniquely positioned within state licensing laws. First-year residents generally are not eligible to receive a state license to practice medicine independently. In some states, this ineligibility extends through the first two years of residency. A resident ineligible for state licensure is not classified as a physician under the law as he or she cannot practice independently or perform the functions the state considers to be “the practice of medicine.” Some states set forth specific exemptions for residents without the requisite experience to be eligible for licensure to permit them to engage in the practice of medicine within certain limitations. In New York, for example, “any intern who is employed by a hospital and who is a graduate of a medical school in the United States or Canada” is exempt from the licensure requirement, provided the intern’s practice is limited to that hospital and is supervised by a licensed physician. (1) Similarly, California expressly requires one year of post-graduate hospital training in order to be eligible to receive a physician’s and surgeon’s license. (2)

As recognized by the state-licensing framework, residents begin with a knowledge base from their classroom education, but lack the experience to reliably apply what they have learned. Because of the unique work of physicians in dealing with matters of literal “life and death,” the law requires a certain period of time during which residents begin the experience of providing direct clinical care to patients under the supervision, and intervention if necessary, of more experienced individuals. The regulatory framework for hospitals and residency programs are structured with this pivotal concept in mind. The Joint Commission, which accredits hospitals, has promulgated the following standard with respect to adequate supervision by the medical staff of graduate medical students: “In hospitals participating in a professional graduate education program(s), the organized medical staff has a defined process for supervision by a licensed independent practitioner with appropriate clinical privileges of each member in the program in carrying out his or her patient care responsibilities.” (3)

The Joint Commission notes in its Comprehensive Accreditation Manual that graduate medical education programs accredited by the Accreditation Council on Graduate Medical Education (ACGME) are required to comply with the Joint Commission Standard MS.04.01.01, quoted above. Specifically, “the hospital should be able to demonstrate compliance with any postgraduate education review committee citations related to this standard.” (4) The ACGME, however, in its Common Program Requirements more specifically imposes the following two core requirements on accredited residency programs:

  • VI.D.1. In the clinical learning environment, each patient must have an identifiable, appropriately-credentialed and privileged attending physician (or licensed independent practitioner as approved by each Review Committee) who is ultimately responsible for that patient’s care.
  • VI.D.2. The program must demonstrate that the appropriate level of supervision is in place for all residents who care for patients. (5)

Defining Supervision
Supervision, as acknowledged by the ACGME, can take a variety of forms, depending on the resident’s level of skill and experience. It notes three types of supervision: direct (i.e., physically present), indirect (i.e., either on site or via means of remote communication) and oversight (i.e., available to provide post-care feedback). The supervision is intended to facilitate progressive independence, authority and responsibility of residents, while protecting the safety of the patient (and the resident in many respects). Through the residency process, the element of supervision is critical to the development of the resident as a practicing physician, and this mirrors the licensure structure, which contemplates a period of time during which the resident cannot legally practice independently.

The need for appropriate supervision is well established, if not obvious. But what is precisely is considered “appropriate” is less clear, both in application of the standards and the law. Perhaps the most famous case of inadequate supervision is Zion v. New York Hospital, (6) involving Libby Zion who died while in the care of an intern on staff in the emergency room at New York Hospital in 1984. The facts of the case surrounding the level of supervision of the residents were not unique (i.e., an intern on duty, a second-year resident available on-site, and an attending physician available via telephone), but the outcry from Zion’s father following her death eventually led to the reform of the medical education system, culminating in a significant revision of the ACGME program standards as cited in part above. (7)

The ACGME standards contemplate that residency program directors will evaluate each resident individually and that the faculty member-supervisors will delegate to residents, based on patient need and the specific resident’s skill. (8) This essentially sets forth a case-by-case basis standard that is counter to the law’s tendency to devise a standard of care consistent among professional peers against which an individual’s behavior can be evaluated in any given situation for purposes of determining liability. Although state laws vary, residents can generally be held to the same standard of care as their supervisors, particularly residents eligible for and in possession of a state medical license. However, supervising physicians are generally liable for their resident(s)’ provision of care as well as their own. (9) For example, the Supreme Court of Ohio imposed a patient-physician relationship where the on-call physician never saw the patient and was never contacted about her care by the resident on duty, based in part on the fact that he contractually agreed with the hospital to be available to supervise residents through indirect supervision. (10)

Role of the Attending
Recent case law focuses on whether the supervising physician owed a duty of care to the patient before determining whether adequate supervision of the resident was provided in determining malpractice liability. The courts have come out with widely varied interpretations of when a physician-patient relationship is created in the on-call or supervisory capacity; however, specific discussions of what constitutes adequate or inadequate supervision in these cases has been relatively limited. One case suggested it might be the standard of care that the on-call physician must call in at the beginning of her coverage, and periodically throughout where she knows residents are actively treating patients on her service. In Mozingo v. Pitt County Memorial Hospital, (11) the on-call physician responded to the call from the resident during a complicated delivery of a child and appeared at the hospital within two minutes. The plaintiff introduced expert witness testimony that mere availability via telephone was insufficient supervision by the on-call physician. The Court did not rule on the merits of this argument or render the physician’s lack of periodic “check-ins” with residents as negligent on its face, but instead permitted the case to proceed to a jury for consideration of the arguments. Accordingly, it left open the possibility that the standard of care may require more than mere availability.

The lack of clarity surrounding the definition of adequate supervision creates a unique issue for residency program directors and attending physicians. The licensing laws and accreditation standards set forth parameters within which the resident-attending relationship can be structured, but careful consideration is also given to the value of experiential learning and necessary decision-making capabilities that residents must be exposed to and develop in order to be successful independent physicians. The inexperience of a medical provider, whether a first-year intern or a surgical fellow, always carries a risk of less-than-desirable patient outcomes, but the risks should be monitored through periodic individual review and proactive program adjustments to respond to identified deficiencies. Given the state-specific thresholds for liability and the standards of care for supervision, residents, attending physicians and hospitals should consult local counsel for advice regarding specific obligations and risks.

Caitlin C. Podbielski, Esq., is an associate at Vedder Price. She counsels health-care and trade and professional association clients on a variety of issues, including state provider licensing laws, federal and state regulatory compliance, federal income tax exemption matters, and private-party contracting. The author reported no conflicts for disclosure.


1. Section 6526 of the New York Education Law.

2 .California Business and Professions Code, Article 4, Section 2096.

3. The Joint Commission, Comprehensive Accreditation Manual for Hospitals, Standard MS.04.01.01 at MS-18 (Jan. 2015).

4. Id. at MS-20.

5. Accreditation Council on Graduate Medical Education, Common Program Requirements at 5-6 (hereinafter “ACGME Standards”).

6. 183 A.D.2d 386 (1992).

7. Lerner BH. The Case That Shook Medicine, The Washington Post, Nov. 28, 2006.

8. See ACGME Standards at 15-16; see also Accreditation Council on Graduate Medical Education, ACGME Program Requirements for Graduate Medical Education in Neurology at 21-22.

9. Kachalia A, Studdert DM. Professional Liability Issues in Graduate Medical Education, JAMA. 2004; 292(9):1051-1056.

10. Lownsbury v. VanBuren, 94 Ohio St. 3d 231, 2002-Ohio-646; but see, Reynosa v. Huff, 21 S.W.3d 510 (Tex App. 4th Dist. 2000), where the physician successfully defended against a medical negligence claim by disputing the existence of a patient-physician relationship based upon mere presence in the labor and delivery unit in which the resident delivered the plaintiff’s child via emergency caesarian section.

11. 415 S.E.2d 341 (1992).

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