Public Health Law Map - Beta 5 - Medical and Public Health Law Site

patient’s right of privacy should not be violated for the convenience of the teaching
staff.
b) Fraud
Medical students and residents who misrepresent themselves as fully licensed
physicians or as specialists in some area of medicine defraud the patient and
increase the probability of a malpractice lawsuit if the patient is injured by the care.
If the patient understands that the person providing care is in training and if the
trainee is properly supervised by a licensed physician, the patient may consent to
care from a student or resident. The patient may not, however, waive the laws
governing independent medical practice, and the providers may not subvert the
patient’s right to consent.
It is particularly important that consent and billing for surgical procedures be done
appropriately. If a resident is going to be performing a surgical procedure, the
patient must be aware of this and the attending surgeon must be scrubbed into the
surgery and directly supervise the entire procedure. It is not good enough to be
available if needed. In the first case, the attending surgeon is arguably doing the
surgery through the resident. In the second case, he or she is simply trying to collect
a fee for services not rendered. If the patient has signed a consent for the attending
surgeon to do the surgery, the absent surgeon is also perpetrating a fraud. Medical
schools have paid more than $100 million in fines related to improper billing for
medical student and resident care.
2. Medical Students, Residents, and Fellows
Academic medical centers are characterized by the variety of their graduate and
postgraduate students. This can lead to confusion about who may do what to patients
and who may supervise whom. In the extreme case, nonmedical personnel, such as
graduate students in the basic sciences, may be confused with physician fellows and
given clinical responsibilities. More generally, teaching programs are often lax in
their supervision of unlicensed physicians and medical students, giving them
authority beyond their legal scope of practice. [Gleicher N. Expansion of medical
care to the uninsured and underinsured has to be cost-neutral. JAMA.
1991;265:2388–2390.] This creates medical malpractice liability for the attending
physician when a patient is injured through the improper actions of a student or
resident. Treatment by an unauthorized person can support a lawsuit for battery.
Moreover, juries are unsympathetic to physicians who shirk the duty to care for
patients personally.
a) Residents and Fellows
Legally, the most important question about residents and fellows is whether they
are licensed to practice in the state where they are training. A resident who does not
have either a personal license or an institutional license has no legal right to
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