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Entering the abyss: the resident's standard of care.

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. …