Illinois lawsuit could further restrict resident work hours

Heather Brewster was hit by a first-year internal medical resident who was driving home after 36 hours on call. Brewster, who was 23 at the time, July 14, 1997, sustained a head injury that has left her permanently disabled and has since been deemed incompetent by the courts.

Brewster's family is suing the resident and teaching hospital, Rush University Medical Center in Chicago, on her behalf. The family says Rush should be held liable because it enforced a work schedule that left residents sleep-deprived. They have asked an appeals court to overturn a lower court ruling excluding Rush from the lawsuit on the grounds that it could not be held responsible for an employee's after-work conduct.

At stake, legal experts say, is the broader issue of resident work hours. If Rush is held responsible for the car crash, then teaching hospitals nationwide could be vulnerable to similar suits, even though residents are no longer allowed to work 36-hour stints.

Jonathan Zittrain, a Harvard law professor, explained that once a state court decides that a practice is up for examination, it sets a precedent.

"Forget the plaintiffs even winning," he said. "Even if they're permitted to press their claim, if the threshold decision is made that hospital practices in this area are subject to scrutiny, it would send the signal that you can't just do business as usual, that you can no longer only answer to internal controls in the profession for what you chose to do.

"We already know that when a construction company asks someone to work three shifts in a row, they might be held responsible for an accident. The question is whether there is any special status for hospitals and doctors."

Oral arguments for the case were made March 9 in the 1st District Appellate Court of Cook County, Ill.. Judges are expected to make a opinion on the case in the next few months.

Blaming long hours

Kevin Conway, Brewster's attorney, said it's only appropriate that hospitals be held accountable.

Conway argued that since the hospital was the one to impose the work schedule, it controlled the conduct of its employees.

Mark Levy, executive director of the Committee of Interns and Residents, a union for medical housestaff, said the group filed an amicus brief on behalf of the Brewsters.

"Since it's the hospital that requires the residents to work long hours ... they have some responsibility in this situation," Levy said.

In 2003, the Accreditation Council for Graduate Medical Education set policy limiting residents to an average of 80 hours a week, with continuous in-hospital duty of no more than 24 hours plus another six hours for transferring patients and educational activities.

Levy, however, argues that these hours remain unsafe and that holding hospitals accountable via the courts will spur further change. He cited a recent study by Harvard Work Hours Health and Safety researchers that shows residents who've worked continuously overnight show performance comparable to what would be expected from someone with a blood alcohol level of 0.10%.

David Leach, MD, ACGME executive director, said most resident don't work 80 hours a week or 30 hours on call and that recent sleep data from Harvard helps the ACGME to refine its standards.

Juries setting limits

While the Brewsters and their supporters want hospitals to be held accountable, the medical center's attorney, George Galland, said this case is tantamount to allowing a jury to legislate national policy.

"This is very alarming," Galland said. "The theory of this suit is that every employer, not just hospitals, has a duty to keep its employees from working some nonspecified number of excessive working hours."

A court would determine what's excessive in each case, he said, leaving employers open to lawsuits whenever an employee was involved in causing unintentional injuries. A favorable decision for the plaintiff would even override the new ACGME work-hour limits, he said.

"This lawsuit says, 'We don't care if you are following those standards or are within the law. We think those hours were excessive and therefore we're going to hold you liable.' "

Galland argues that a decision for the Brewsters would cripple teaching hospitals. They would be forced to hire more residents in order to shorten their hours, and their liability insurance premiums, which doubled for Rush in 2002, would balloon beyond their ability to pay.

Making a change

Leaders in the medical community say the profession is already moving toward a safer system and that it needs time, not punitive court verdicts, to get there.

Jeff Gonzalez, MD, who serves as chair of the American Medical Association's Resident and Fellow Section, said the AMA supports limiting residents' hours and is actively involved in educating residents on sleep safety issues.

"My sister is a pediatric resident in Miami," he said. "When she's postcall, my brother-in-law picks her up. She used to nod off at lights and almost got into an accident. If you have support to provide rides, carpooling, that's more effective than any lawsuit."

If Rush is found liable and teaching hospitals further restrict residents' hours, it might end up being a bad thing for patient care, he said, if fewer hours means reducing residents' clinical and didactic education.

Jim Watters, MHA, senior director of graduate medical education at Texas Tech University Health Sciences Center, said he sees doctors at his institution making the effort to embrace the culture change implicit in ACGME hour standards.

"Just last week I talked to a resident who opted to stay in the call room [postcall], because he was very tired," he said. "People are more aware of sleep-related problems and safety issues, and I'd like to think the incidence [of sleep-deprivation errors] is going to decline."