Entering the abyss: the resident's standard of care.
Subject: Duty of care (Law) (Laws, regulations and rules)
Residents (Medicine) (Laws, regulations and rules)
Author: Cabaj, Chantel
Pub Date: 01/01/2011
Publication: Name: Health Law Journal Publisher: Health Law Institute Audience: Professional Format: Magazine/Journal Subject: Health; Law; Sports and fitness Copyright: COPYRIGHT 2011 Health Law Institute ISSN: 1192-8336
Issue: Date: Annual, 2011 Source Volume: 19
Topic: Event Code: 930 Government regulation; 940 Government regulation (cont); 980 Legal issues & crime Advertising Code: 94 Legal/Government Regulation Computer Subject: Government regulation
Legal: Jurisdiction: Canada
Accession Number: 291893058
Full Text: Introduction

Medical residency is a legally complex and problematic issue. Uncertainty surrounding this topic is attributed to a lack of coherence and understanding in defining the resident. From one perspective, the resident is viewed as a physician. This view is based on the public's perception and the breadth of health care activities a resident is permitted to do. A polar view emerges when the realities of a residency program are considered. Given a resident's inexperience and practice limitations, a resident may also be defined as a medical trainee.

The conceptual battle that exists when defining a resident is evident within medical malpractice jurisprudence. The resident's standard of care is the greatest victim of the battle, and it has become a tattered and tenuous concept.

This paper will explore the confusion that surrounds the resident's standard of care. Guided by provincial legislation and policy, Part I examines and describes the professional evolution a physician experiences in becoming fully licensed. Part I also brings attention to the legislative vagueness that exists in Alberta; one source of the inconsistency surrounding the resident's standard of care. Part II provides overall context for the topic by outlining the legal principles that define the certified physician's standard of care. A three-pronged interpretation of the resident's standard of care is described in Part III. Part IV introduces an alternative approach to the minimum level of care expected of a resident. Lastly, Part V provides a personal opinion on the direction the resident's standard of care should take.

I. The Student, Resident, and Licensed Physician: The Professional Evolution

Becoming a fully licensed physician is a timely, multi-step process. Those who achieve this goal have progressed through three distinct phases: the medical student, the resident, and finally, the independent physician and! or specialist. (1)

The resident's standard of care is best understood when complemented by a discussion that describes the progression of medical responsibility experienced by the physician. Defining each phase of a doctor's professional evolution requires consideration of appropriate legislation and guidelines. This paper will focus on Alberta's provincial legislation and guidelines, and, when necessary, policies from the Faculty of Medicine, University of Alberta.

In Alberta, the field of medicine is a self-regulated industry that is governed by the Health Profession Act. (2) Section 46 of the Act mandates the registration of any individual who is competent in the "practice of the profession" and intends to provide "professional services directly to the public", however specifically excludes students. (3) Regardless, the Act contemplates a medical student's registration with the College of Physicians and Surgeons of Alberta (the College). (4) Section 36(5) of the Act requires a regulated member to display a practice permit "where the regulated member provides professional services". (5) A student "enrolled ... in a program of studies provided for in the regulations" is contemplated as such a regulated member. (6) Further, section 33(1) of the Act requires council to "establish ... a regulated members register for one or more categories of members who provide professional services". (7) Included among the named categories created by council is an "educational register". (8) Given this legislative framework, it is the practice in Alberta for medical students to register with the College from the outset of their medical degree. (9) This registration will be maintained for the entirety of the individual's medical career. Specific requirements and details relating to professional registration are outlined in the Physicians, Surgeons and Osteopaths Profession Regulation (Regulation). (10) Through the Regulation and various professional guidelines a legal understanding of the medical student, the resident, and the certified physician is formed.

A. The Student

Average medical students complete a four year undergraduate program in order to achieve their MD degree. The degree is broken into two components. Years one and two, the "pre-clinical years", are completed in the classroom and are a "series of system-based course blocks". (11) Years three and four, the "clinical years", are completed largely in a hospital setting. (12) Through the clinical years, students gain hands-on experience while working under the supervision of residents and staff physicians. (13) Colloquially, these medical students are referred to as "interns" or "clerks". (14) During this time the student applies for and is matched to a residency program that will follow his or her medical degree.

Regardless of their year of study each medical student is mandated to register with the College. (15) Section 11 of the Regulation speaks specifically to the student registrant, and requires that the student be "currently enrolled in an undergraduate medical program". (16) Although students are registered members of the College, their professional abilities are severely curtailed by the Regulation. (17) To prevent confusion in the health care setting, section 16 prohibits a medical student from representing him or herself as a "Doctor". (18) Section 18 protects the public further by requiring supervision of any medical student performing a "restricted activity". (19) These activities include, but are not limited to, invasive or surgical-type procedures. (20)

The constrictive nature of the Regulation assures that medical "interns" or "clerks" are legally defined as the students they are. (21)

B. The Resident

Medical residency is a two to tire year post-graduate medical program that is completed following a medical degree. This additional training, completed almost exclusively in a hospital setting, is required by the College before professional licensure will be granted. (22) A resident registers with the College as a provisional registrant and through this title is enabled to perform all restricted activities and use the title "Doctor". (23) The resident's scope of rights is limited in two ways. A self-restriction clause, applicable to all physicians, operates to ensure only competent care is provided. (24) Additionally, a provisional register may have limiting conditions placed upon their practice by the Registrar. (25)

The optional practice limitations suggested by the Regulation are strictly enforced in a policy released by the University of Alberta Postgraduate Medical Program, the Policy Concerning Supervision of Postgraduate Medical Trainees on Clinical Rotations (Policy). (26) The Policy mandates that residents recognize their professional limitations when providing care, inform their patients of their "medical trainee" status, and exercise increased caution. (27) Supervising physicians must be selective in the tasks they delegate to residents, considering the resident's "skill and level of training", and must ensure that a "resident's medical trainee status" is communicated. (28) Given the Policy and the Regulation a resident is best defined as a trainee; a status somewhere between student and physician. (29)

C. The Physician

The College fully licenses a physician upon completion of a medical degree, post-graduate medical training, and fulfillment of required registration examinations. (30) Similar to the resident, the physician is able to use the title "Doctor" and may use the title "Specialist" if authorized to do so by the Registrar. (31) The physician is able to perform all activities defined as "restricted" and is supervised only through self-restriction. (32) A physician is responsible for maintaining his or her competency through professional development programs that have been approved by the College. (33)

D. Summary of the Professional Roles

The path from medical student to fully licensed physician is one that is accompanied by a steep learning curve. Skill, knowledge, and experience increase at each progression. For the most part, the governing Regulation accounts for differences in the medical student, the resident, and the certified physician by enforcing varying levels of supervisory limits against each group. (34) The Policy enacted by the University of Alberta also identifies the progressive differences; however it advocates a more conservative delegation of authority to the resident. (35)

Read together, the Regulation and Policy suggest that the phases embedded in the medical profession be interpreted as a hierarchy. (36) However, given vagueness within the Regulation the judiciary has not taken this view. (37) Despite the supervisory realities suggested by the University of Alberta (38), the judicial community has interpreted the potential lack of statutory limits as a certainty. As a result, a resident is more commonly viewed as a fully licensed physician. As will be discussed in further detail below, defining the resident as a physician is highly influential on the resident's standard of care.

E. A Historical Definition: The Medical Intern

The classification system described above accurately represents the current medical training model within Alberta. However, given the extensive time span of jurisprudence that is relevant to the resident's standard of care, previous processes must also be considered. Historically, there was an additional phase required between medical school and residency. This phase was a one year period, referred to as an internship and was a prerequisite for certification as a licensed professional. (39) If a student wanted to specialize beyond this year they would then continue further on with a residency program. Historically, the intern fulfilled the same role as the modern day first-year resident. This differs significantly from the present meaning of intern, which refers to a third of fourth year medical student. Caution and discretion will be provided when the term "intern" is used in this paper to avoid confusion of past and present meanings.

II. Providing Context: The Certified Physician's Standard of Care

It is a long-established concept that a certified physician will be held to the standard of a reasonable doctor. (40) This standard was articulated by the Ontario Court of Appeal in Crits v Sylvester:

The specialist's standard of care was further articulated in Wilson v Swanson: "[i]t is the duty of a specialist such as the appellant, who holds himself out as possessing special skill and knowledge, to have and exercise the degree of skill of an average specialist in his field". (42)

It is evident the application of the more onerous specialist's standard of care is heavily influenced by a doctor's portrayal of their professional abilities. The court is free to apply this standard to a physician's care regardless of their professional accreditation. As a result, a doctor who performs a surgery will be held to the standard of a reasonable surgeon, regardless of a lack of education or training in the surgery specialty. (43)

The comments made in Crits and Wilson provide context for understanding the resident's standard of care. Given the Regulation and the Policy, it is likely a resident will be defined as either a doctor or a trainee. (44) As a result, it is logical to assume that the upper limit to which a resident will be held is that of the average specialist--the highest standard a doctor can be held to. Whether or not the resident's standard of care actually reaches this limit is a topic to be explored, but being aware of this upper limit is useful as it provides a reference point for plotting the resident's standard of care.

III. The Resident's Standard of Care

It is important to note the uncertainty that exists in this area of law. A vague statement made by the Supreme Court of Canada nearly sixty years ago in Vancouver General Hospital v Fraser, (45) regarding the resident's standard of care, has created a fractured interpretation. Attempting to meld the varying statements into one unified vision, the purpose of this paper, is an act of judicial interpretation. While this paper is consistent with Canadian jurisprudence, it is understood that slight variations may exist given subtleties within the case law.

The resident's standard of care is best understood as a spectrum. Nearly sixty years of Canadian jurisprudence has established three general points that guide residents in their legal obligations. These points include:

1) a generally agreed to minimum level of care that incorporates the doctor's standard of care;

2) a middle standard of care that recognizes a resident's expanding skill set, and;

3) a more extreme upper level of care that approaches or reaches the specialist's standard of care.

Despite the establishment of these reference points, three major issues exist and contribute to making this an unpredictable area of law. First, no point along the spectrum is specifically defined. While cases may share similarities, enough difference exists within each grouping to introduce interpretive uncertainty. Second, there is no specific indication as to when a resident will fall into one of the categories. Logical indicators, such as year of residency, provide some guidance but are still vulnerable to varying results. (46) Third, the cases are complex. Residents are commonly joined by staff specialists and the medical institution as named defendants. Medical expert evidence, something very technical in nature, is usually targeted at uncovering the specialist's standard of care. This creates confusion as to whether this same standard is also applicable to the resident.

A. The Starting Point: Vancouver General Hospital v Fraser

The earliest and most formidable comments made on the resident's standard of care were those of the Supreme Court of Canada in Vancouver General Hospital v Fraser. (47) In Fraser, the patient was placed under the care of two emergency department interns after suffering injuries in a motor vehicle accident. (48) The patient, Mr. Fraser, presented with visible lacerations, neck pain, and neck stiffness upon arrival. (49) The interns, although untrained in radiology, read the x-rays and diagnosed and discharged Mr. Fraser without consulting the available and certified radiologist. (50) As Mr. Fraser's pain did not subside, he returned to the hospital and was diagnosed as having a fractured dislocation of his "axis, second cervical or "neck vertebrae". (51) He died shortly after this diagnosis and as a result his wife sued Vancouver General Hospital for the alleged negligence of the interns. (52)

In confirming the interns' negligence, Justice Rand identified two crucial aspects of the resident's standard of care. First, a resident "must use the undertaken degree of skill, and that cannot be less than the ordinary skill of a junior doctor in appreciation of the indications and symptoms of injury before him". (53) Second, a resident must display, "an appreciation of his own limitations and of the necessity for caution in anything he does". (54) Rand J's statement has come to form the lowest standard of care a patient can demand from a medical resident. This standard holds the resident to that of a "junior doctor" and demands the resident be cautious and cognizant of their inexperience. (55)

B. Issues Raised by Vancouver General Hospital v Fraser

At first glance, Rand J's use of the phrase "junior doctor" is misleading. A standard incorporating the word junior is suggestive that the young, inexperienced nature of a resident would be imputed into the resident's standard of care. This is not the case. As stated by Picard and Robertson, "The courts' consideration of [training and experience] may result in the raising of the standard of care, but inadequacies in these factors will not shield house staff from the necessity of meeting the basic standard of the average level of competence". (56)

As is made apparent by Picard and Robertson, the courts have interpreted the phrase "junior doctor" as a passing expression rather than a term of art. (57) This has been done consciously, in an attempt to protect the public interest. There is a general understanding among the legal community that "the paramount social need for compensating accident victims ... clearly outweighs all competing considerations [including the need to encourage beginners]". (58) As a result, Fraser has been interpreted with an emphasis on the word "doctor", and the doctor's standard of care has been incorporated into the standard a resident will be held accountable to.

Unfortunately, an interpretation of Fraser that focuses on the term doctor further confuses the resident's standard of care. Such confusion occurs because a doctor will be held to one of two standards of care: the standard of a reasonable doctor or the standard of a reasonable specialist. These differing standards raise the question, "Which is the more appropriate standard for a resident to be held to?" For a certified physician, the appropriate standard is determined by examining the level of professional competency the physician portrays. (59) However, given the intricacies of a five-year residency program, a resident portrays themselves as both a physician and a specialist, dependent upon the audience.

A resident does not solely practice their specialty once placed in their post-graduate program. Rather, they rotate through different relevant subspecialties. For example, an orthopaedic surgery resident will rotate through the following types of medicine within their first two years: emergency medicine, internal medicine, vascular surgery, general surgery, rheumatology, pediatric general surgery, neurosurgery, intensive care, cardiac care, and orthopaedic surgery. It is not until third year that the resident will work solely within his or her specialty. (60)

A resident is most likely to behave as the Regulation allows, regardless of the rotation they are on. (61) Cautious of their inexperience, is it unlikely the resident will intend to portray themselves as a specialist, especially when on an off-specialty rotation. However, when garbed in a white coat and introducing themselves as "Doctor" on a specialized ward, the resident becomes vulnerable to the portrayal of a specialist. This vulnerability is maximized in the upper years of training, when the resident is solely focused on training within their desired specialty. In these situations Crits would suggest that imputing the additional care required for a specialist may be appropriate. (62) This interpretation raises two issues. First, is it appropriate to hold a resident to the standard of a specialist? Second, is it appropriate to hold residents completing the first years of residency to varying specialist standards of care as they rotate through varying mandatory rotations?

C. The Lower Limit: The Reasonable but Inexperienced Doctor

Canadian jurisprudence has taken three different approaches when interpreting the appropriate standard to hold a resident to. The first approach, as expressed in Wills v Saunders (63), Bearden v Lee (64) and Adair Estate v Hamilton Health Services Corp (65), places the greatest focus on residents recognizing their professional inexperience. Within these cases the courts do not directly identify which of the "doctor" standards is most appropriately applied to the resident. However, given the deference that is granted to cautious residents, it is logical to infer support for the use of the lower "reasonable doctor" standard. Additionally, breach of the standard is usually determined on matters of protocol, an issue that does not require the skill and knowledge of a specialist. As a whole, this lower limit of care is most commonly applied to a resident within their first few years of residency.

1) Wills v Saunders

In Wills, Mrs. Wills, the 57-year old plaintiff, had surgery to correct her gallstones and reflux esophagitis. (66) After surgery she developed serious infections and had to have her central feeding line removed. (67) Ten days after the removal of the line, attempts were made to restart intravenous feeding peripherally, rather than by central line. (68) A day after these attempts failed, Dr. Saunders, a first-year, surgical resident, attempted to once again insert a central feeding line. (69) This action was taken without supervision or written orders to proceed accordingly. (70) Severe complications resulted, which ultimately lead to permanent vision loss for Mrs. Wills in her right eye. (71)

When establishing the appropriate standard of care expected of Dr. Saunders, the Court made reference to the junior doctor standard expressed by Rand J. (72) This standard was interpreted in consideration of Justice Ellen Picard's statement, "[t]here is no authority ... to support a lower standard for the inexperienced". (73) As a result of these statements, Dr. Saunders' standard of care was not lowered, despite his junior resident status and inexperience. (74)

The Court is not explicit in whether Dr. Saunders would be held to the standard of a reasonable doctor or surgeon. (75) Rather, focus was placed on the importance of Dr. Saunders understanding his limitations and thereby acting accordingly. In determining the standard of care, the Court focused on the fact Dr. Saunders undertook the procedure on his own and without supervision. (76)

Despite a lack of direct guidance, it is logical to presume that the reasonable doctor standard is implied in this case. First, placing such an emphasis on caution is not fully consistent with the specialist's standard of care, one that demands action based on special skill and knowledge. Second, the Court identified that Dr. Saunders was "responsible to act as a primary care physician to the patients". (77) Fulfilling a primary care role is more indicative of a doctor's duties rather than a specialist's. Because of this, the Court seems to suggest that the standard of care for a resident, particularly an inexperienced junior resident, is that of a reasonable and prudent doctor who appreciates their limitations and inexperience.

2) Bearden v. Lee

Bearden is also consistent with the resident's standard discussed above. This case involved the misdiagnosis of appendicitis by the defendant intern, Dr. Abramson. (78) As a result of the misdiagnosis, the plaintiff's appendix ruptured. (79) After an emergency appendectomy the patient suffered several hernias that required reparative surgeries over a period of years. (80)

In finding Dr. Abramson negligent, the Court's greatest emphasis was directed at the ignorance Dr. Abramson displayed towards her inexperience. Specific attention was directed at Dr. Abramsons' lack of proper discharge instructions for the patient, the manner in which she minimized the patient's concerns, and her "definite and obviously reluctant [attitude] to admit any uncertainty about anything". (81) The Court instructed that, "[w]hile confidence is a positive attribute of an experienced doctor ... on July 1-2, 1991 [Dr. Abramson] inappropriately allowed herself to go unsupervised and confidently presented herself to Bearden as being more experienced and knowledgeable than she really was". (82)

Although not specifically stated, it is again logical to infer that the Court holds the resident to the standard of a reasonable doctor. In speaking of Dr. Abramson's negligence, Sanderson J states, "I would not have reached a similar conclusion if I had found [Dr. Abramson] was acting on Lee [the staff emergency doctor's] directions". (83) Given that a specialist has, and is intended to use, additional skill and knowledge, it is unlikely a Court would allow a specialist to avoid liability by deferring to another doctor. This case suggests the standard of a resident to be that of a reasonable doctor, emphasizing that professional behaviour must reflect an awareness of professional inexperience.

3) Adair Estate v Hamilton Health Sciences Corp

Adair Estate involved the delayed diagnosis of a bowel obstruction by four doctors, two of whom were residents. (84) Although the patient, Mrs. Adair, eventually had surgery for the bowel obstruction, her delayed diagnosis resulted in malnutrition. (85) Malnutrition was a material contribution to infection that arose post-operatively, an injury that eventually resulted in Mrs. Adair's death. (86)

In analyzing the resident's standard of care, the Court referred to Fraser. The court concluded that, "[a]s licensed doctors, both Drs. Hopkins and McDonagh should be held to the standard of a reasonably prudent medical practitioner ... The contextual factor that should be accounted for is the lack of expertise that these two doctors had. Since they should also recognize this limitation, it may be a factor that aggravates liability rather than mitigating it". (87) This statement emphasizes the importance of residents recognizing their limitations. It also indicates that the reasonable doctor test is appropriate. Using this test over the reasonable specialist test is further supported in the analysis of the factual elements supporting a breach of the standard of care. The Court specifically refers to "pain, distension and vomiting" being something that "students" should know as symptoms of a bowel obstruction. (88) The use of the word "student" indicates a level of knowledge held by doctors generally rather than that held specifically by specialists.

As a result of Adair Estate, Wills, and Bearden, one particular interpretation of Fraser has gained acceptance by the courts. This standard holds the resident to that of a reasonable doctor and demands the resident be cautious and cognizant of their limitations. Although this standard is usually applied to residents as they begin their post-graduate program, there is no steadfast rule guiding its application. (89)

D. The Middle Standard" The Developing Resident

Comments made in Bedard v Martyn (90), Rietze v Bruser (No 2) (91), Allen v University Hospitals Board (92), and Bauer v Seager et al (93) open the possibility of a second interpretation of the resident's standard of care. This second standard recognizes the resident's growing skill set. In these cases, the courts identify a new standard, the reasonable specialized resident (e.g. the reasonable obstetrics resident). This interpretation differs from other cases, which specifically compare the standard of the resident to that of a reasonable doctor or a reasonable specialist. This new standard, being rooted to a particular area of medicine, requires a resident to have more skill than the average doctor, but less than an average specialist in that area.

1) Bedard v Martyn

In Bedard, twin boys were delivered and cared for by two health care professionals, Dr. Amin, the staff neonatologist, and Dr. Mauer, an anaesthesiology resident completing a four-week rotation in neonatology. (94) Approximately 24 hours after the birth of the twins one of the infants, Logan, began to show signs of stress and irritability. Dr. Mauer ordered an ultrasound to investigate a potential haemorrhage, but indicated that the tests be done "today" rather than "urgent[ly]". (95) Four hours after ordering these tests, Dr. Mauer conducted a lumbar puncture on Logan to test for meningitis, a procedure not recommended by neonatologists in the face of increased intracranial pressure. (96) Ultrasound and CT scans were completed approximately six hours after the initial diagnosis, and they confirmed a brain haemorrhage. (97) The haemorrhage caused a large blood clot in Logan's brain, damaging brain cells and the brain stem itself. (98) The issue before the Court was not the cause of the haemorrhage, but rather the doctor's lack of immediate testing upon the discovery of stress indicators.

Dr. Maurer was found negligent for failing to order Logan's ultrasound urgently, a procedural matter that lends itself to the standard of the average physician. (99) It was made clear that Dr. Maurer was not expected to have the full knowledge of a neonatologist as, unlike the staff specialist, she was not faulted for conducting a lumbar puncture. (100) However, in describing the standard of care applicable to Dr. Maurer, the Court referred to her as a "resident of neonatology on October 20, 2001 [the date of injury]". (101) Given that Dr. Maurer was actually an anaesthesiology resident, it is possible that the standard of care expressed demanded some level of knowledge in the field of neonatology. On the facts this theory cannot be proven, as negligence was determined strictly on a general, procedural matter. (102)

2) Rietze v Bruser

In Rietze, Dr. Letts, an orthopaedic surgery resident, assisted staff surgeon Dr. Bruser in the surgery and after-care of Mrs. Rietze. (103) Mrs. Rietze was experiencing "a 'bowing' of her left arm" as a result of Paget's disease. (104) Surgery replacing the diseased bone, the recommended course of action, was completed to cure Mrs. Rietze's disfigurement. (105) Unfortunately, following her surgery Mrs. Rietze developed Volkmann's ischemic contracture, "a condition where tissue and/or muscle dies because the blood supply to that tissue or muscle is cut off". (106) Volkmann's contracture may occur as a result of extrinsic pressure, commonly a cast that is too tight, or intrinsic pressure such as an accumulation of blood or an infection. (107) Mrs. Rietze suffered the consequences of Volkmann's contracture, which included a "claw-like" contracture of her hand and the inability to use her fingers. (108)

While the staff physician Dr. Bruser was found negligent, the resident, Dr. Letts, was found to have sufficiently satisfied the standard of care required of him. (109) The Court identified the appropriate standard to be applied to be that of the reasonable resident in orthopaedics. (110) This is suggestive that additional orthopaedic knowledge or skill was required of Dr. Letts. It is unknown whether additional skill was actually required, as Dr. Letts had a limited role in the care of Mrs. Rietze. Moreover, during the surgery "Dr. Letts did not have a free hand to carry out any major surgical intervention without consultation with Dr. Bruser". (111) Post-operatively, Dr. Letts involvement with Mrs. Rietze's care was limited to "daily examinations, splitting or spreading the cast, noting any unusual or persistent symptoms and prescribing any medication he felt she needed". (112) As Dr. Letts' role did not demand extra orthopaedic skill or knowledge, it is uncertain whether additional care was required of him.

3) Allen v University Hospitals Board

In Allen, an obstetrics and gynaecology resident, Dr. Muir, assisted staff specialists with the birth of Ashleigh Allen. (113) Ashleigh's birth was complicated and as a result she suffered birth asphyxia and development issues. (114) In defining the appropriate standard of care the Court cited what it believed to be an established principle: "the standard of care for residents ... is that of the reasonable resident, in other words not that of a fully trained doctor in that speciality". (115) Although Dr. Muir met the standard of care, the claims made against him are not of particular assistance as they were largely procedural matters. (116) Despite Dr. Muir's procedural role in the delivery, rather than a technical role, the Court's phrasing of the standard of care suggests that Dr. Muir was required to have some knowledge in the field of obstetrics.

4) Bauer v Seager

Bauer similarly involved an obstetrics resident, Dr. Black, who was involved in the complicated birth of a child. (117) In this case, the child, Ellen Bauer, suffered "severe brain damage, allegedly a result of oxygen deprivation suffered shortly before, during and several minutes after her birth". (118) The Court interpreted Fraser in defining the appropriate standard of care:

Although the Court used the phrase "fully trained physician" their intent was likely similar to Allen, where a resident will be held to a standard between that of an average physician and an average specialist. This assumption can be made given that the Court pegs the intern's standard of care, a resident's junior, to an average practitioner, or physician.

The choice of language used by the courts in Bedard, Rietze, Allen, and Bauer opens the possibility to a more demanding standard of care for residents. This standard holds the resident to a level of skill greater than that of a doctor but less than that of a specialist. Given the language used in Bedard, this standard may also require the resident to have skill of the expressed level regardless of their actual focus of specialization.

E. The Upper Standard: The Reasonable Specialist

The three recent decisions of Sharp v Hurlbert (120), Anderson v Greene (121) and Johnston v Hader (122) present a third possible standard for a resident to be held to, that of the reasonable specialist or near specialist.

1) Sharp v Hurlbert

In Sharp, the plaintiff had spinal cord surgery to relieve pain in his neck. (123) As part of this surgery, two of the discs in his spine had to be fused together. This procedure required bone graft to be attached to the plaintiff's vertebrae with a titanium plate. (124) Dr. Bitting, a fifth year resident (125) involved in the surgery, was responsible for threading the graft so it would fit a screw. (126) While Dr. Bitting was completing the threading procedure "the graft dislodged into [Mr. Sharp's] spinal canal". (127) As a result, Mr. Sharp "suffered a spinal cord injury" which impaired his "right arm and shoulder, decreased fine finger movement and [resulted in] mild weakness in motor control of his left hand". (128)

The Court cites the junior doctor standard, expressed in Fraser and interprets it as meaning that "Dr. Bitting should be held to the standard of care of a prudent surgeon". (129) Despite this elevated standard of care, Dr. Bitting was not found to be in breach, as he "neither saw nor felt anything which would indicate to him that the graft would slip". (130)

The defendants argued that the appreciation of limitations test had application and consequently Dr. Bitting should have refused to complete the threading. (131) This was not accepted by the Court. As was argued above, the appreciation of limitations test, in its purest form, is inconsistent with the specialist's standard of care. If a court holds a resident to the standard of a specialist, they are recognizing the experience and skill set of an individual and expecting they will act according to their knowledge. This includes performing complex surgical tasks and having the knowledge to differentiate between appropriate and inappropriate diagnostics and procedures.

However, in Sharp the Court does support some forms of limitation awareness, specifically noting that this was not a situation where "a resident was unsupervised and undertook a task beyond what was expected". (132) This initially appears problematic given the application of the "surgeon" standard of care. This issue is resolved by a close analysis of the words chosen by the Court. Dr. Bitting was held to the standard of a prudent surgeon, not that of a prudent neurosurgeon. This standard can be viewed as one that hovers near but does not actually equate with the reasonable specialist's standard. This standard still deems supervision and delegation of tasks by senior staff as appropriate, but recognizes the near specialist skill set of the resident. As a result the resident does not have to question his or her involvement in more complex procedures, but has to perform said procedures with the skill of an average surgeon. To be successful, this standard would have to rely heavily on appropriate delegation of tasks by senior staff.

2) Anderson v Greene

In Anderson the plaintiff alleged, among other things, that the resident, Dr. Abdulhafid, improperly carried out the plaintiff's laparoscopic procedure, injuring the plaintiff's omentum and transverse colon. (133) In identifying the appropriate standard of care, the Court recognized the "conflicting authorities on what th[e] standard should be for a resident," yet chose to hold Dr. Abdulhafid to the highest standard: that of a reasonable obstetrician and gynaecologist. (134) The Court utilized this standard because, "On March 5, 2003, [Dr.Abdulhafid] was an experienced physician who had performed many laparoscopies". (135) Despite this onerous standard, Dr. Abdulhafid was not found negligent, as the weight of the evidence did not support negligent conduct by the defendant. (136)

3) Johnston v Hader

In Johnston, a third-year neurosurgery resident, Dr. Li, assisted in the plaintiff's selective amygdalohippocampectomy surgery. (137) During the surgery, a Greenberg rectractor, which is used to provide access to the brain, moved causing post-operative right-side paralysis. (138) Although Dr. Li did not actively use the Greenberg retractor, he "had assisted on several occasions with the tightening and loosening of the flexible arm". (139) In interpreting Fraser the Court determined that Dr. Li "should be held to the same standard as that of a prudent neurosurgeon" as he was "an established physician who was learning a medical speciality". (140)

Both Anderson and Johnston rely on a resident's medical experience to justify the use of the specialist's standard of care. The problem with this standard is that it fundamentally clashes with the Fraser principle of limitation awareness. As a result, the resident has the responsibility to function at a specialist's skill level, without the level of independence and deference such a standard usually provides. (141)

F. Summary on the Three Interpretations of the Resident's Standard of Care

Statements made by the Supreme Court of Canada in 1952 set the stage for the resident's standard of care. (142) Over the past sixty years, two main points have been repetitively cited: a resident's inexperience will play no role in lowering the standard of care, and a resident has to be cautious and cognizant of their professional limitations. (143) The use of the phrase "junior doctor" has created confusion as to whether it is appropriate to hold residents to the standard of a reasonable doctor or specialist. This is particularly relevant given that residents may be seen to portray themselves as a doctor and/or a specialist.

Generally, the courts find that the resident will be held to the standard of a reasonable doctor who recognizes their professional inexperience. This requires the resident to be supervised in the actions they take, be open about their uncertainty, and to re/use tasks beyond their competency.

The courts may, however, hold the resident to a standard that exceeds that of a reasonable doctor, especially as the resident gains experience in their program. The first possibility requires the resident to provide additional skill and knowledge to their patients, regardless of the medical rotation they are on. The skill expected would not be that which a specialist would hold, but would exceed that of a reasonable doctor. The second possibility is that a resident will be held to the standard of a specialist or near specialist. In the case of the near specialist, the standard requires much more skill from the resident, but still allows for a contained presence of the awareness of limitations test. If the resident is held to the highest standard, that of the average specialist, they face a precarious situation. The resident must function at the level of a specialist, but is not afforded the usual independence and deference a specialist is afforded. Instead the resident must be cautious of their limitations and take precaution to avoid potential repercussions of such.

IV. Is The Current Lower Limit Appropriate?

Despite the general confusion around the resident's standard of care, the case law is fairly cohesive on one issue: a resident's inexperience will not result in a reduction of the standard of care. Whether this approach is appropriate is brought into question by Aldana v March. (144)

In Aldana three interns were sued for negligence following the death of a patient in their care. (145) The patient suffered post-operative chest pains following bariatric surgery. (146) As the patient was moved from the surgery ward to the cardiac care unit, the interns provided care in the form of diagnosis, testing, and medication. (147) The care was provided in accordance with supervising instruction. Unfortunately, the entire medical care team misdiagnosed the patient's symptoms. (148) The patient had developed peritonitis as a result of his surgery, a condition that ultimately caused his death. (149)

In declining to find any of the three interns negligent, the Court determined the appropriate standard to be that of a "reasonably competent intern". (150) This was distinguished from the standard of a "practicing physician or specialist". (151) A lesser standard was found to be appropriate given the accepted description of the intern's role:

The Court also brought attention to the fact that the interns were not certified to practice medicine independently and were training to become practising physicians. (153)

In analyzing the standard of care issue, it was determined that given the time-sensitive nature of Mr. Aldana-Murray's condition, the interns had taken reasonable steps in diagnosis and had been prudent in their medical care and communication efforts. Taking these steps ensured they, at a minimum, satisfied the intern's standard of care. (154) Additionally, the Court identified that to make the interns second-guess the instruction of the specialists would have placed an "unreasonably high duty upon their shoulders". (155)

Two points of interest are raised by this case. The first is the similarities shared between the modern-day resident and the historic intern. Like the intern, the resident is restricted from practicing medicine independently. (156) A resident is also required to work under the supervision of a staff physician. (157) Given the likeness between the resident and the intern, it seems logical that the "reasonable intern" standard be applicable to residents.

The point above may be moot given the second point of interest, the application of the "reasonable intern" standard. (158) The interns satisfied the standard of care because they acted prudently, made reasonable diagnoses, and followed senior specialists' orders. This behaviour would have equally satisfied a standard requiring the interns to act like a reasonable, cautious doctor. Given that finding an appropriate diagnosis was something expected of a reasonable specialist, it appears that what the Court was actually opposed to was holding the interns to the standard of a reasonable specialist. (159)

V. Conclusion

The resident's standard of care is an unclear area of the law. This is a consequence of vague governing legislation and Supreme Court of Canada guidance. As a result, the resident has been held to the standard of: a reasonable doctor, a reasonable near or actual specialist, a reasonable resident (somewhere between a doctor and a specialist), and a reasonable intern (less than that of a reasonable doctor).

Despite the varying terminology used, the underlying goal of the courts is similar. At a minimum, they wish to hold residents accountable for a certain level of medical knowledge and want to ensure residents are actively aware of their professional inexperience. In addition to this, the courts want the flexibility to increase the care requirement, when it is appropriate. (160)

To help ease the confusion, one succinct statement on the resident's standard of care needs to be adopted. Given the hierarchy of skill suggested by the Regulation and Policy, I believe the appropriate standard would be that of a reasonable resident. (161) This standard would, at a minimum, require the average resident's skill and knowledge, and demand acknowledgement of professional inexperience. Additional care expectations could be imposed on the resident as they progress through their training.

Legally, the concept suggested does not significantly differ from a standard that requires a resident to act as a reasonable and cautious physician. However practically, it has two advantages. First, it would unite an array of judicial interpretations under one common concept. This would not only make it more user-friendly for legal research, but would allow for a stronger and more convincing legal principle. Second, as a single, sensible concept, it is likely to be better understood by the people it affects most, residents.

The concept presented does recognize a resident's limited knowledge and skill, and incorporates it into the minimum standard of care required. However, such a standard does not offend tort law on beginners because it recognizes residents as independent medical practitioners, rather than beginners. To reinforce this standard a regulatory amendment is advisable as a means for distinguishing a resident from a certified physician. This would eliminate one source of vagueness that allows for multiple judicial interpretations to arise.

(1) For those who choose to specialize in an area other than family medicine, a fellowship will also be completed. This occurs after residency, but can be likened to the more senior portion of residency for the purposes of this discussion.

(2) RSA 2000, c H-7 [HPA].

(3) Ibid, ss 46(1), (4).

(4) Ibid, ss 33, 40(1)(b)(2).

(5) Ibid, s 36(5).

(6) Ibid, s 40(1)(b)(2).

(7) Ibid, s 33(1).

(8) College of Physicians and Surgeons of Alberta, "Registration information", online: College of Physicians and Surgeons of Alberta .

(9) A practice permit may only be technically required as of third year, as the first two years of a medical student's degree of strictly in the classroom or in an observatory capacity. Regardless, it is practice in Alberta for students to be registered with the College at the outset of their degree.

(10) Alta Reg 350/2009.

(11) University of Alberta, Faculty of Dentistry and Medicine, "The Undergraduate MD Program at the University of Alberta", online: Faculty of Dentistry and Medicine .

(12) Ibid.

(13) University of Alberta, Faculty of Dentistry and Medicine, "Year 3", online: Faculty of Dentistry and Medicine .

(14) Ibid.

(15) HPA, supra note 2, s 46.

(16) Supra note 10, s 11.

(17) Ibid.

(18) Ibid, s 16.

(19) Ibid, s 18.

(20) Ibid, s 17.

(21) Ibid, ss 16-18.

(22) Ibid, s 3.

(23) Ibid, ss 6, 16-17.

(24) Ibid, s 19.

(25) Ibid, s 7(3).

(26) University of Alberta, Faculty of Medicine and Dentistry, Policy Concerning Supervision of Postgraduate Medical Trainees on Clinical Rotations, online: Faculty of Medicine and Dentistry [Policy].

(27) Ibid at C(1), C(5), C(2).

(28) Ibid at B(2), B(3).

(29) Ibid; and Regulation, supra note 10, s 7(3).

(30) Regulation, ibid, s 3.

(31) Ibid, s 16.

(32) Ibid, ss 17, 19.

(33) College of Physicians & Surgeons of Alberta, "Health Professions Act Standards of Practice: Consolidation" (2010), online: College of Physicians & Surgeons of Alberta , s 1.

(34) Regulation, supra note 10, ss. 7(3), 18-19.

(35) Policy, supra note 26.

(36) Regulation, supra note 10; Policy, ibid.

(37) Regulation, ibid, s 17.

(38) Policy, supra note 26.

(39) Aldana v March, 44 CCLT (2d) 164, 1999 CarswellBC 24 (SC) [Aldana cited to CCLT].

(40) Ellen I Picard & Gerald B Robertson, Legal Liability of Doctors and Hospitals in Canada, 4th ed (Toronto: Thomson Carswell, 2007) at 225.

(41) [1956] OR 132 at para 31, 1956 CarswellOnt 90 (CA) [Crits].

(42) [1956] SCR 804 at 817, 5 DLR (2d) 113 [Wilson].

(43) McKeachie v Alvarez, (1971) 17 DLR (3d) 87, 1970 CarswellBC 257 (BC SC).

(44) Regulation, supra note 10, ss 16-17; and Policy, supra note 26.

(45) [1952] 2 SCR 36, 3 DLR 785 [Fraser cited to SCR].

(46) For example, in Adair Estate v Hamilton Health Services, [2005] OTC 399, 32 CCLT (3d) 283 (ON SC) [Adair Estate cited to OTC], a 3rd year resident (an upper year resident) was held to the lowest standard--that of a reasonable doctor aware of personal limitations.

(47) Fraser, supra note 45.

(48) Although the term "interne" is used in this case, it is likely this describes a phase closer to that of the modern day "resident". This assumption is made because the title "Dr." is granted to both of the interns.

(49) Fraser, supra note 45 at 39-40.

(50) Ibid at 39.

(51) Ibid at 41.

(52) Ibid at 39.

(53) Ibid at 46.

(54) Ibid.

(55) Ibid.

(56) Supra note 40 at 232.

(57) This concept is a trend confirmed in the case law discussed below.

(58) John G Fleming, Fleming on Torts, 9th ed (Sydney: LBC Information Services, i998) at 123.

(59) Crits, supra note 41.

(60) The Royal College of Physicians and Surgeons of Canada, PGY-1 Resident Surgical Foundations Manual: 2010-2011 Program Information, loose-leaf (consulted on 3 April 2011), (Edmonton: University of Alberta, 2010) ch 2 at 25.

(61) Regulation, supra note 10, ss 16-17.

(62) Supra note 41.

(63) (1989), 93 AR 282, 64 Alta LR (2d) 262, (QB) [Wills cited to AR].

(64) [2003] OJ No 1261, 2003 CarswellOnt 1178 (SC) [Bearden cited to CarswellOnt].

(65) Supra note 46.

(66) Supra note 63 at para 3.

(67) Ibid at para 13.

(68) Ibid at para 18.

(69) Ibid at para 19.

(70) Ibid at para 17.

(71) Ibid at para 21.

(72) Ibid at para 81.

(73) Ellen I Picard, Legal Liability of Doctors and Hospitals in Canada, 2d ed (Toronto: Carswell Legal Publications, 1984) at 157.

(74) Wills, supra note 63 at 85.

(75) Ibid at paras 76, 78-80.

(76) Ibid at para 86.

(77) Ibid at para 33.

(78) Supra note 64. Although the defendant is described as an "intern" within the case, the likely context of this term is either a rotating internship or a residency as Ms. Abramson is referred to as "Doctor". If Dr. Abramson was on a residency, it was her first year as the case brings attention to her recent medical school graduation, ibid at para 3.

(79) Ibid at para 138.

(80) Ibid.

(81) Ibid at para 126.

(82) Ibid.

(83) Ibid.

(84) Supra note 46 at paras 6-7, 140, 167.

(85) Ibid at paras 6-7.

(86) Ibid at para 7.

(87) Ibid at para 139.

(88) Ibid at para 29.

(89) In Adair Estate, supra note 46, the residents were in the third year of a five-year residency program.

(90) [2009] 11 WWR 727, 7 Alta LR (5th) 196 (QB) [Bedard cited to Alta LR].

(91) [1979] 1 WWR 31, 1978 CarswellMan 99 (QB) [Rietze cited to WWR].

(92) 2000 ABQB 509, 268 AR 201 aff'd, 2002 ABCA 195, 312 AR 59 (CA) [Allen].

(93) 2000 MBQB 113, 147 Man R (2d) 1 [Bauer].

(94) Supra note 90 at para 8(9).

(95) Ibid at para 8(15).

(96) Ibid at para 65.

(97) Ibid at para 8(20).

(98) Ibid at para 10.

(99) Ibid at para 60.

(100) Ibid at paras 76-77.

(101) Ibid at para 77.

(102) Ibid at para 60.

(103) Supra note 91 at 34.

(104) Ibid at 31.

(105) Ibid

(106) Ibid at 35.

(107) Ibid at 35-36.

(108) Ibid at 31.

(109) Ibid at 35.

(110) Ibid at 45.

(111) Ibid at 35.

(112) Ibid.

(113) Supra note 92 at paras 9-11.

(114) Ibid at paras 132-137.

(115) Ibid at para 42(E).

(116) Ibid at para 46.

(117) Supra note 93 at para 1.

(118) Ibid at para 1.

(119) Ibid at para 43(2).

(120) [2007] 76 Alta LR (4th) 142, 9 WWR 657 (QB) [Sharp cited to Alta LR].

(121) 2010 ABQB 676, [2011] AWLD 949 [Anderson].

(122) 2009 ABQB 424, 478 AR 343 [Johnston].

(123) Supra note 120, at para 1, headnote.

(124) Ibid at para 1.

(125) It is assumed Dr. Bitting was a 5th year resident as he is said to have "five years experience" (ibid at para 138).

(126) Ibid at para 15.

(127) Ibid.

(128) Ibid at para 18.

(129) Ibid at para 125.

(130) Ibid at para 137.

(131) Ibid at para 138.

(132) Ibid.

(133) Anderson, supra note 121 at paras 2, 175.

(134) Ibid at paras 107, 110.

(135) Ibid at para 110.

(136) Ibid at para 218.

(137) Supra note 122 at para 1.

(138) Ibid at para 2.

(139) Ibid at para 17.

(140) Ibid at para 111.

(141) Instead, it is expected that the resident will function under the appropriate level of supervision and delegation. See Anderson, supra note 121 at paras 147-150 and Johnston, supra note 122 at para 17, where the Court's description of Dr. Li implied a level of supervision.

(142) Fraser, supra note 45.

(143) Ibid at 46.

(144) Supra note 39 at para 13.

(145) Ibid at para 2.

(146) Ibid at paras 3-4.

(147) Ibid at paras 4, 6, 9.

(148) Ibid at para 8.

(149) Ibid at para 10.

(150) Ibid at para 13.

(151) Ibid.

(152) Ibid.

(153) Ibid.

(154) Expert evidence given by one witness suggested that one of the intern's efforts had "exceeded that of a competent intern" (ibid at para 20).

(155) Ibid at para 30.

(156) Implied in Regulation, supra note 10, ss 7(2)-7(3).

(157) Policy, supra note 26.

(158) Aldana, supra note 39 at para 13.

(159) This assumption is made because no average doctor was involved in Mr. Aldana-Murray's care. Rather a series of specialists were involved who themselves did not diagnose peritonitis, ibid at para 30.

(160) For example, having an increased care requirement for a 5th year resident as compared to a 1st year resident.

(161) Regulation, supra note 10; and Policy, supra note 26.

Chantel Cabaj *

* Chantel Cabaj is currently a third year student, completing her J.D. at the University of Alberta. In June 2012 Chantel will begin her articles with Field Law in Edmonton, AB. Chantel would like to extend her gratitude to Gerald Robertson for his guidance, and to her family, friends and David Saliken for their assistance and support.
Every medical practitioner must bring to his task a reasonable
   degree of skill and knowledge and must exercise a reasonable degree
   of care. He is bound to exercise that degree of care and skill
   which could reasonably be expected of a normal, prudent practitioner
   of the same experience and standing, and if he holds himself out
   as a specialist, a higher degree of skill is required of him than
   of one who does not profess to be so qualified by special training
   and ability. (41)


Clearly, although required to bring a reasonable degree of care
   and skill to the task, the standard required in the case of the
   resident is not as high as that required by the fully trained
   physician. By analogy, this would apply to interns who are
   required to bring to their task a degree of skill and care
   that would reasonably be expected of a normal prudent practitioner
   of the same level of experience and training. (119)


An intern is a junior doctor doing a year of post-university
   training at an accredited hospital. In British Columbia, and
   in other provinces in Canada, it was mandatory at the time to
   do an internship as a prerequisite to becoming licensed to
   practise medicine independently. An intern works under the
   supervision of an attending staff physician who is usually
   a specialist. The intern is qualified and expected to perform
   histories and physical examinations on patients. Procedures,
   ordering of investigations, and initiating treatment are within
   the duties of the intern as long as it is under the supervision
   of and in consultation with an attending staff person. An intern
   may initiate emergency treatments and is qualified to do so as
   long as the attending physician for the patient is notified
   within a reasonable period of time. (152)
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