Recently, the American Journal of Medicine published a study with the unexpected conclusion that hospitalized patients were more likely to die or stay long in the care of an experienced physician than in the care of a recent graduate from residency: “When doctors weren’t very busy, they kept patients in the hospital for roughly the same average time no matter how many years of experience they had. But when they did have a lot of patients to see in the hospital, those with more than 20 years of experience kept patients there about half a day longer than their peers who’d been practicing for less than five years.”

The authors suggested that the younger doctor’s “familiarity with more current guidelines and practices” explained the difference, and suggested requiring periodic re-certifications. Scepticemia notes some possible confounding variables and sample size issues, but on the whole the study’s conclusions look robust.

We spend a lot of time investigating adverse outcomes at our law firm, including malpractice by hospital residents, so let me offer another possibility.

There is a misunderstanding about malpractice law which goes like this: if a doctor is faced with multiple potential diagnoses and treatments and chooses the wrong one, they will be liable malpractice. That’s not the law. Consider the lengths courts used to go to in explaining to juries how an “error in judgment” was not malpractice:

Physicians who exercise the skill, knowledge and care customarily exercised in their profession are not liable for a mere mistake of judgment. Under the law, physicians are permitted a broad range of judgment in their professional duties, and they are not liable for errors of judgments unless it is proven that an error of judgment was the result of negligence.

As Pringle v. Rapaport reaffirmed, and as is the law everywhere, “the fundamental issue in medical malpractice cases, as in all types of negligence cases, is whether the defendant violated the applicable standard of care and, if so, whether that violation resulted in injury to the plaintiff.” If the error of judgment was within the standard of care, it was not malpractice.

Truth is, few malpractice lawsuits allege that a doctor was presented with multiple legitimate options and chose the wrong one. The majority of medical malpractice lawsuits arise from an allegation that the doctor missed something or performed a technique improperly. “Failure to diagnose” is the most common claim. Don’t take my word for it, peruse case studies at the Risk Management Foundation.

In most cases, the defendant doctors didn’t evaluate several possibilities and pick what we know in hindsight to be the wrong one; the doctor missed the correct “possibility” entirely. They’re not about errors in judgment but about a lack of diligence.

Of course, a new resident doctor who is literally inexperienced — particularly a sleep-deprived one — is more likely to make a mistake. Recent residency graduates, though, are not inexperienced: an attending on their first day typically has a minimum of 10,000 hours actually practicing medicine, the magic number.

So why the difference? Two reasons, in my humble opinion. First, residents retain a “beginner’s mind,” a concept in Zen Buddhism which refers to having an attitude of openness, eagerness, and lack of preconceptions when studying a subject, and so are more diligent about exploring unlikely possibilities.

Second, and perhaps better, a recent residency graduate on their first attending assignment has motivation. They’re anxious about making mistakes and they’re eager to prove themselves as excellent doctors who can handle responsibility, so they put extraordinary effort into their cases. The new attending physicians are more diligent in their practice and so are less likely to make the sort of negligent mistakes that injure patients.

Maxwell S. Kennerly is an attorney who blogs at Litigation & Trial.

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