Is There a Proctor in the House?

A “proctor” is often described as a “supervisor” or “monitor” and, specifically, “one appointed to supervise students (as at an examination).” See Merriam-Websters Collegiate Dictionary, Eleventh Edition. Although one can easily understand the role of a proctor in a classroom setting, the role of a proctor in an operating room setting can be more complicated, especially when it comes to the ultimate responsibility for the care of a patient. Proctoring by experienced surgeons is a common and increasingly frequent method to credential surgeons for hospital privileges or those who are new to laproscopic or robotic procedures.

A surgical proctor can generally be described as a surgeon-observer who is responsible for the assessment of the skills and knowledge of the surgeon-learner during the initial phase of the learning curve. See Kevin C. Zorn, 182 J Urol 1126-32 (2009). The proctor reports his or her findings to the applicable governing body in charge of evaluating the subject surgeon, and provides recommendations based on his or her findings. Proctoring can also involve responding to questions about the surgical equipment being used without participating in the medical decision making involved in the procedure. Advanced technology has gone so far, through the use of teleproctoring, as to creating situations where the surgeon is not physically on site with the patient. Accordingly, a proctor is generally not involved in any medical decision-making or in the actual performance of the procedure being observed.

In a review of the limited law on this issue, 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. The reasoning behind the legal system's reluctance to hold proctors liable for the treatment of those they observe is that there is a lack of a physician-patient relationship between the proctor and patient. However, those defending surgical proctors should be aware of the
distinctions that courts have used to find that malpractice liability did not exist so that they can frame their cases to mirror these factual scenarios.

The Proctor vs. the Preceptor: Physician-Patient Relationship

The existence of a physician-patient relationship is a prerequisite to recovery in a medical malpractice case. See Roberts v. Hunter, 426 S.E.2d 797 (SC 1993). “The establishment of a doctor/patient relationship is a prerequisite to a claim of medical malpractice [and] [t]he relation is a consensual one wherein the patient knowingly seeks the assistance of a physician and the physician knowingly accepts him as a patient.” Id. The South Carolina Supreme Court's reasoning in Roberts is mirrored in cases nationwide, which hold that no doctor/patient relationship exists when a doctor neither examined nor participated in the treatment of a patient. See, e.g., Irvin v. Smith, 31 P.3d 934 (Kan. 2001); Doherty v. Hellman, 547 N.E.2d 931 (Mass. 1989); Rand v. Miller, 408 S.E.2d 655 (WVa. 1991). Ordinarily, proctoring duties do not include treating or examining the patient and, most times, the patient never meets the proctor who observed his or her surgery.

However, there can be a fine line between proctoring a procedure and participating in a procedure, possibly unknowingly creating a physician-patient relationship.

A proctor's immunity from suit based on the lack of a physician-patient relationship may be tenuous if the proctor undertakes a voluntary duty to participate in the procedure. Such an act could create a physician-patient relationship and transform a proctor into the role of a “preceptor.” Preceptoring is generally a form of training, whereby an experienced surgeon scrubs in or supervises the procedure with the intention of guiding the surgeon-learner and assisting in the acquisition of the new skills by providing feedback, and aiming to transfer skills in a hands-on approach. See Kevin C. Zorn, 182 J Urol 1126-32 (2009). Unlike a proctor, where the observed surgeon has the responsibly for the care of the patient, a preceptor is the primary person responsible for the well-being of the patient, and can take over the surgical procedure if the situation requires. Id. Therefore, unlike proctors, preceptors have a physician-patient relationship with the patient and can be legally liable for failing to intervene in a patient's care. See, e.g., McCullough v. Hutzel Hospital, 276 N.W.2d 569 (Mich. 1979).

While surgeons are often labeled as “proctors” by the entity requesting that they observe another surgeon for credentialing purposes, they must be careful not to interject themselves into a procedure to a degree that they could be described as “preceptors,” creating liability for themselves in relation to the observed procedure. Only two states have tackled the specific issue of the liability of proctors in the operating room: California and Ohio.

In Clarke v. Hoek, 219 Cal. Rptr. 845 (Cal. Ct. App. 1985), the California Court of Appeals expressly held that a surgeon acting as a medical proctor does not owe a duty of care to a patient because there is no physician/patient relationship between the two. In Clarke, the proctor-surgeon, Dr. Hoek, an orthopedic surgeon, was an active medical staff member at two different hospitals in Mendocino County, CA. Dr. Hoek was asked by both hospitals to observe 10 surgeries performed by a surgeon who was applying for credentials at each respective hospital. Dr. Hoek was then to submit a written report to each hospital's credentials committee.

Prior to each of the two operations, Dr. Hoek reviewed Ms. Clarke's X-rays and discussed the operative plan with the surgeon to be observed. Otherwise, Dr. Hoek did not take any part in the care or treatment of the patient. During the actual operations, Dr. Hoek was not asked to, and did not, participate in the surgeries. He did not scrub in for the surgeries, instead observing them from a position outside the sterile field. Dr. Hoek never met the patient before either surgery and was not paid for his proctoring duties.

In affirming the trial court's dismissal of Dr. Hoek as a matter of law, the Clarke court reasoned that, “absent a special relationship giving rise to a duty to act, a person is under no duty to take affirmative action to assist or protect another, no matter how great the danger in which the other is placed or how easily he could be rescued.” The Clarke court ultimately held that there was no special relationship between Dr. Hoek and Ms. Clarke that would create a duty for the proctor to act. The Clarke court found that Dr. Hoek's only responsibility was to observe the treating surgeon perform surgery, not to supervise. The court even went so far as to say that “[t]he fact that appellant's doctor experts opined that [the medical proctor] had a duty to ensure that the patient receives proper surgical treatment within the standard of care and that failure to intervene falls below the standard of care does not create a triable issue of fact.”

The Lucas County, OH, Court of Common Pleas came to a similar conclusion in its analysis of the medical liability of proctors in Zablocki v. Wilkin, 2003 WL 25580058 (Ohio Com. Pl. 2003). In Zablocki, the plaintiff suffered a fractured right ankle after falling in her home. She was ultimately referred to a podiatrist, Dr. Wilkin, to perform surgery on her injured ankle. Dr. Wilkin had been recently credentialed at a local hospital and was required to have a proctor in attendance for his first five surgeries performed at this hospital. Dr. Walkovich was appointed by the local hospital to serve as Dr. Wilkin's proctor for Zablockis' surgery. Dr. Walkovich was not paid for his proctoring services, did not scrub in and was not present for the entire procedure. Although he admitted to discussing Zablockis' procedure with Dr. Wilkin before the surgery, Dr. Walkovich testified that his “sole function as a proctor was to observe another doctor for purposes of determining if that doctor has demonstrated the skills necessary to justify an extension of privileges.”

Zablocki later filed a medical malpractice action against Drs. Wilkin and Walkovich, among others. She alleged that Dr. Walkovich failed to properly supervise Dr. Wilkin in the surgical procedure. However, the Ohio Court of Common Pleas dismissed her action as a matter of law, finding that a “physician who, on behalf of a hospital and without compensation, acts as a proctor in observing a surgical operation for the sole and express purpose of assessing and reporting on the competence of a candidate for membership of a hospital medical staff” does not owe a duty to a patient to “intervene in that surgery in order to prevent malpractice by the proctored surgeon.”

From these two cases it is apparent that some of the most important factors to eliminate a proctor's liability for the negligence of an observed physician include the proctor's: 1) lack of participation in the surgery; 2) failure to scrub in; 3) position outside of the sterile field; 3) absence for portions of the procedure; 4) failure to meet or examine the patient pre-surgically; 5) appointment by an outside body to serve as proctor; and 6) lack of compensation for observing.

Finding Liability

In contrast are cases where a physician clearly has a duty to supervise and instruct less experienced physicians. Such cases frequently involve on-call or supervising physicians overseeing resident physicians. In these cases, the on-call/supervising physician is often found to owe patients a duty to properly supervise the less experienced practitioners who independently treat these patients. This relationship between supervising physicians and physician residents or midwives often creates liability for the on-call/supervising physician for failing to interject in a patient's treatment. See, e.g., Mozingo by Thomas v. Memorial Hospital, 415 S.E.2d 341 (N.C. 1992); Miller v. Phillips, 949 P.2d 1247 (Ak 1998); Arpin v. U.S., 521 F.3d 769 (7th Cir 2008). A similar duty exists when supervising physicians fail to confirm that a surgical procedure was performed properly by medical residents at a teaching hospital.

In McCullough v. Hutzel Hospital, 276 N.W.2d 569 (Mich. 1979), the Michigan Court of Appeals found that supervising surgeons were liable for the negligent performance of a surgical procedure performed by residents. In that case, the patient underwent a tubal ligation, supposedly rendering her incapable of conception. However, several months later, she became pregnant. Due to the health concerns that necessitated the tubal ligation, she was forced to undergo an abortion. The patient sued for damages. In finding that the supervising surgeon's liability was “not predicated on the negligence of the resident but upon their own negligence in failing to provide adequate supervision,” the court ruled that even though the surgical procedure was actually performed by a resident, the supervising preceptor surgeons were under a duty to assure that the procedure was performed properly. Any failure to make sure the procedure was complete and performed properly could render them liable for the resulting damages.

Although these cases do not directly outline the duties of a preceptor or supervising/on-call physician, 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.

Conclusion

Across the United States, hospitals are using proctors to assist in the credentialing of physicians and surgeons. Similarly, many hospitals are requiring surgeons to be proctored for a number of procedures when they first begin to use new equipment, such as robotic laproscopic devices. The assistance of a knowledgeable proctor in these situations can be very helpful to the hospital in making a determination of whether the observed surgeon is qualified to offer these new services to the general public.

Although the proctor is often the most experienced surgeon involved in a surgical procedure, he or she must be careful not to become involved in a procedure outside of an observational role. A proctor should remain outside the sterile field, not scrub in and not participate in the medical decision-making during the procedure. And while a pre-surgical discussion or review of the patient's chart is generally acceptable behavior for a proctor, a surgical proctor must ensure that the primary role is to act only as an observer.

A proctor who stays within these guidelines should not have any medical malpractice liability should a procedure be performed below the standard of care. However, if a proctor expands this role to the point of assisting or advising in the performance of the procedure, he or she can expect to be brought into medical malpractice cases.

Lee C. Weatherly is an attorney with Carlock, Copeland & Stair, LLP in Charleston, SC, where one of his specialties is medical malpractice litigation. He is licensed to practice in South Carolina and Kentucky.

A “proctor” is often described as a “supervisor” or “monitor” and, specifically, “one appointed to supervise students (as at an examination).” See Merriam-Websters Collegiate Dictionary, Eleventh Edition. Although one can easily understand the role of a proctor in a classroom setting, the role of a proctor in an operating room setting can be more complicated, especially when it comes to the ultimate responsibility for the care of a patient. Proctoring by experienced surgeons is a common and increasingly frequent method to credential surgeons for hospital privileges or those who are new to laproscopic or robotic procedures.

A surgical proctor can generally be described as a surgeon-observer who is responsible for the assessment of the skills and knowledge of the surgeon-learner during the initial phase of the learning curve. See Kevin C. Zorn, 182 J Urol 1126-32 (2009). The proctor reports his or her findings to the applicable governing body in charge of evaluating the subject surgeon, and provides recommendations based on his or her findings. Proctoring can also involve responding to questions about the surgical equipment being used without participating in the medical decision making involved in the procedure. Advanced technology has gone so far, through the use of teleproctoring, as to creating situations where the surgeon is not physically on site with the patient. Accordingly, a proctor is generally not involved in any medical decision-making or in the actual performance of the procedure being observed.

In a review of the limited law on this issue, 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. The reasoning behind the legal system's reluctance to hold proctors liable for the treatment of those they observe is that there is a lack of a physician-patient relationship between the proctor and patient. However, those defending surgical proctors should be aware of the
distinctions that courts have used to find that malpractice liability did not exist so that they can frame their cases to mirror these factual scenarios.

The Proctor vs. the Preceptor: Physician-Patient Relationship

The existence of a physician-patient relationship is a prerequisite to recovery in a medical malpractice case. See Roberts v. Hunter , 426 S.E.2d 797 (SC 1993). “The establishment of a doctor/patient relationship is a prerequisite to a claim of medical malpractice [and] [t]he relation is a consensual one wherein the patient knowingly seeks the assistance of a physician and the physician knowingly accepts him as a patient.” Id . The South Carolina Supreme Court's reasoning in Roberts is mirrored in cases nationwide, which hold that no doctor/patient relationship exists when a doctor neither examined nor participated in the treatment of a patient. See, e.g., Irvin v. Smith , 31 P.3d 934 (Kan. 2001); Doherty v. Hellman , 547 N.E.2d 931 (Mass. 1989); Rand v. Miller , 408 S.E.2d 655 (WVa. 1991). Ordinarily, proctoring duties do not include treating or examining the patient and, most times, the patient never meets the proctor who observed his or her surgery.

However, there can be a fine line between proctoring a procedure and participating in a procedure, possibly unknowingly creating a physician-patient relationship.

A proctor's immunity from suit based on the lack of a physician-patient relationship may be tenuous if the proctor undertakes a voluntary duty to participate in the procedure. Such an act could create a physician-patient relationship and transform a proctor into the role of a “preceptor.” Preceptoring is generally a form of training, whereby an experienced surgeon scrubs in or supervises the procedure with the intention of guiding the surgeon-learner and assisting in the acquisition of the new skills by providing feedback, and aiming to transfer skills in a hands-on approach. See Kevin C. Zorn, 182 J Urol 1126-32 (2009). Unlike a proctor, where the observed surgeon has the responsibly for the care of the patient, a preceptor is the primary person responsible for the well-being of the patient, and can take over the surgical procedure if the situation requires. Id. Therefore, unlike proctors, preceptors have a physician-patient relationship with the patient and can be legally liable for failing to intervene in a patient's care. See, e.g., McCullough v. Hutzel Hospital , 276 N.W.2d 569 (Mich. 1979).

While surgeons are often labeled as “proctors” by the entity requesting that they observe another surgeon for credentialing purposes, they must be careful not to interject themselves into a procedure to a degree that they could be described as “preceptors,” creating liability for themselves in relation to the observed procedure. Only two states have tackled the specific issue of the liability of proctors in the operating room: California and Ohio.

In Clarke v. Hoek , 219 Cal. Rptr. 845 (Cal. Ct. App. 1985), the California Court of Appeals expressly held that a surgeon acting as a medical proctor does not owe a duty of care to a patient because there is no physician/patient relationship between the two. In Clarke, the proctor-surgeon, Dr. Hoek, an orthopedic surgeon, was an active medical staff member at two different hospitals in Mendocino County, CA. Dr. Hoek was asked by both hospitals to observe 10 surgeries performed by a surgeon who was applying for credentials at each respective hospital. Dr. Hoek was then to submit a written report to each hospital's credentials committee.

Prior to each of the two operations, Dr. Hoek reviewed Ms. Clarke's X-rays and discussed the operative plan with the surgeon to be observed. Otherwise, Dr. Hoek did not take any part in the care or treatment of the patient. During the actual operations, Dr. Hoek was not asked to, and did not, participate in the surgeries. He did not scrub in for the surgeries, instead observing them from a position outside the sterile field. Dr. Hoek never met the patient before either surgery and was not paid for his proctoring duties.

In affirming the trial court's dismissal of Dr. Hoek as a matter of law, the Clarke court reasoned that, “absent a special relationship giving rise to a duty to act, a person is under no duty to take affirmative action to assist or protect another, no matter how great the danger in which the other is placed or how easily he could be rescued.” The Clarke court ultimately held that there was no special relationship between Dr. Hoek and Ms. Clarke that would create a duty for the proctor to act. The Clarke court found that Dr. Hoek's only responsibility was to observe the treating surgeon perform surgery, not to supervise. The court even went so far as to say that “[t]he fact that appellant's doctor experts opined that [the medical proctor] had a duty to ensure that the patient receives proper surgical treatment within the standard of care and that failure to intervene falls below the standard of care does not create a triable issue of fact.”

The Lucas County, OH, Court of Common Pleas came to a similar conclusion in its analysis of the medical liability of proctors in Zablocki v. Wilkin, 2003 WL 25580058 (Ohio Com. Pl. 2003). In Zablocki, the plaintiff suffered a fractured right ankle after falling in her home. She was ultimately referred to a podiatrist, Dr. Wilkin, to perform surgery on her injured ankle. Dr. Wilkin had been recently credentialed at a local hospital and was required to have a proctor in attendance for his first five surgeries performed at this hospital. Dr. Walkovich was appointed by the local hospital to serve as Dr. Wilkin's proctor for Zablockis' surgery. Dr. Walkovich was not paid for his proctoring services, did not scrub in and was not present for the entire procedure. Although he admitted to discussing Zablockis' procedure with Dr. Wilkin before the surgery, Dr. Walkovich testified that his “sole function as a proctor was to observe another doctor for purposes of determining if that doctor has demonstrated the skills necessary to justify an extension of privileges.”

Zablocki later filed a medical malpractice action against Drs. Wilkin and Walkovich, among others. She alleged that Dr. Walkovich failed to properly supervise Dr. Wilkin in the surgical procedure. However, the Ohio Court of Common Pleas dismissed her action as a matter of law, finding that a “physician who, on behalf of a hospital and without compensation, acts as a proctor in observing a surgical operation for the sole and express purpose of assessing and reporting on the competence of a candidate for membership of a hospital medical staff” does not owe a duty to a patient to “intervene in that surgery in order to prevent malpractice by the proctored surgeon.”

From these two cases it is apparent that some of the most important factors to eliminate a proctor's liability for the negligence of an observed physician include the proctor's: 1) lack of participation in the surgery; 2) failure to scrub in; 3) position outside of the sterile field; 3) absence for portions of the procedure; 4) failure to meet or examine the patient pre-surgically; 5) appointment by an outside body to serve as proctor; and 6) lack of compensation for observing.

Finding Liability

In contrast are cases where a physician clearly has a duty to supervise and instruct less experienced physicians. Such cases frequently involve on-call or supervising physicians overseeing resident physicians. In these cases, the on-call/supervising physician is often found to owe patients a duty to properly supervise the less experienced practitioners who independently treat these patients. This relationship between supervising physicians and physician residents or midwives often creates liability for the on-call/supervising physician for failing to interject in a patient's treatment. See, e.g., Mozingo by Thomas v. Memorial Hospital , 415 S.E.2d 341 (N.C. 1992); Miller v. Phillips , 949 P.2d 1247 (Ak 1998); Arpin v. U.S. , 521 F.3d 769 (7th Cir 2008). A similar duty exists when supervising physicians fail to confirm that a surgical procedure was performed properly by medical residents at a teaching hospital.

In McCullough v. Hutzel Hospital, 276 N.W.2d 569 (Mich. 1979), the Michigan Court of Appeals found that supervising surgeons were liable for the negligent performance of a surgical procedure performed by residents. In that case, the patient underwent a tubal ligation, supposedly rendering her incapable of conception. However, several months later, she became pregnant. Due to the health concerns that necessitated the tubal ligation, she was forced to undergo an abortion. The patient sued for damages. In finding that the supervising surgeon's liability was “not predicated on the negligence of the resident but upon their own negligence in failing to provide adequate supervision,” the court ruled that even though the surgical procedure was actually performed by a resident, the supervising preceptor surgeons were under a duty to assure that the procedure was performed properly. Any failure to make sure the procedure was complete and performed properly could render them liable for the resulting damages.

Although these cases do not directly outline the duties of a preceptor or supervising/on-call physician, 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.

Conclusion

Across the United States, hospitals are using proctors to assist in the credentialing of physicians and surgeons. Similarly, many hospitals are requiring surgeons to be proctored for a number of procedures when they first begin to use new equipment, such as robotic laproscopic devices. The assistance of a knowledgeable proctor in these situations can be very helpful to the hospital in making a determination of whether the observed surgeon is qualified to offer these new services to the general public.

Although the proctor is often the most experienced surgeon involved in a surgical procedure, he or she must be careful not to become involved in a procedure outside of an observational role. A proctor should remain outside the sterile field, not scrub in and not participate in the medical decision-making during the procedure. And while a pre-surgical discussion or review of the patient's chart is generally acceptable behavior for a proctor, a surgical proctor must ensure that the primary role is to act only as an observer.

A proctor who stays within these guidelines should not have any medical malpractice liability should a procedure be performed below the standard of care. However, if a proctor expands this role to the point of assisting or advising in the performance of the procedure, he or she can expect to be brought into medical malpractice cases.

Lee C. Weatherly is an attorney with Carlock, Copeland & Stair, LLP in Charleston, SC, where one of his specialties is medical malpractice litigation. He is licensed to practice in South Carolina and Kentucky.