Legal Pitfalls: Proctoring, Supervising, and Coaching

Any surgeon who acts as a proctor for another surgeon or supervises residents or mid-level providers should be aware of the potential legal pitfalls.

An informative discussion of proctoring and supervision called “Is There a Proctor in the House?” appeared in 2012 on a website called Law Journal Newsletters.

Proctoring has always been an issue. For many years, surgeons have been assigned to proctor newly appointed staff in order to confirm that they were properly trained. Proctoring has been extended to those learning new techniques in minimally invasive and robotic surgery.

The usual scenario is that a proctor is assigned by a hospital’s department chair or credentials committee with the expectation that the proctor will observe and report on the new individual’s skills.

According to the article, “a surgical proctor who acts only as an observer should not have any medical malpractice liability if a procedure is performed below the standard of care.” This holds true as long as the proctor has no physician-patient relationship and does not participate in any medical decision-making or scrub in on the procedure.

In order to avoid malpractice liability, a proctor should not preoperatively meet or examine the patient, nor should he scrub in or actively participate in the surgery. A proctor should also be appointed and not receive any compensation.

This differs from acting as a preceptor or supervisor, which involves training another surgeon and assuming hands-on responsibility if something goes wrong.

From the article: “one can presume that the existence of the following elements would be more likely to result in a finding that a observing surgeon was more than a proctor and owed a duty to intervene if improper care was occurring: 1) A contractual duty to supervise or respond to a call; 2) A clear agreement by the observing physician to supervise and guide the treatment of another physician; 3) A voluntary substantial interjection in the decision-making surrounding a patient’s care; 4) The signing of medical records; and 5) Involvement in the patient’s post-surgical care.”

Even if they are not physically present, attending surgeons are usually found responsible for the acts of residents they are supervising. One exception that I am aware of [but do not have a reference] may be if a trainee does not give an attending an accurate description of the situation with a patient.

The concept of a surgical “coach” was not addressed. However, as described in his New Yorker piece, Gawande introduced his coach to the patient, which would theoretically expose the coach to liability issues if a problem arose. Note that I had mentioned this in my 2011 critique of the coach concept.

While any rational person would prefer to avoid potential litigation at all costs, I fail to see how a proctor or coach could not intervene if she saw that a surgeon being observed was about to cut a common bile duct or remove the wrong organ.

Not explored in the article about proctoring is what happens if a proctor reports that the surgeon being observed is incompetent. I’d say there would be a 100% chance that the observed surgeon would sue.

I supervised residents and physician assistants for my entire career and survived, but I’m not sure that I would want to be a proctor or a coach, both of which seem to put one in an awkward position.

What do you think?

Skeptical Scalpel is a retired surgeon and was a surgical department chairman and residency program director for many years. He is board-certified in general surgery and critical care and has re-certified in both several times. He blogs at SkepticalScalpel.blogspot.com and tweets as @SkepticScalpel.