By Dr. JD, a plaintiff’s attorney, practicing in the Northeast
We continue our series of articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran. The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant. Please give us your feedback – and let us know if you find the series helpful.
One doctrine likely to set surgeons’ teeth on edge as the legal construction that they are the “captain of the ship” in the OR.
Surgeons have been led to believe that their mere presence in the OR makes them liable for all other staff members.
The doctrine actually holds that they are legally responsible for the negligent acts of operating room staff (not their employees) only when they are in the position to discover and prevent such negligence through their own ordinary care.
The “captaincy” aspect goes to their right to actually exercise control over the work being done by the hospital employee in a way that temporarily detaches that employee from the hospital’s control and instead makes them the “borrowed servant” of the surgeon. Not an easy sentence to swallow.
This is actually a fairly high standard to meet. Just giving instructions to a staff member or having the right to supervise them does not create liability for the surgeon.
That’s why the surgeon cannot be held liable for the negligence of the anesthesiologist, who is deemed to be an entirely independent specialist.
In other words, unlike respondeat superior, another type of imputed liability in which an employment relationship alone underpins the liability, under “captain of the ship” there is a genuine hands-on requirement.
Let’s have a look at an old California case, Fields v. Yusuf to see how this plays out.
The surgeon did an arterial bypass graft in the plaintiff’s leg. Two sponge counts done at the end of the procedure were correct. The next day the surgeon did a second procedure. This time only one sponge count was done. The nursing staff confirmed the count was correct. The nursing staff did not do a second count and the surgeon did not instruct them to do so. The problem was that the one count that was done was not accurate and a sponge had been left in. Subsequent complications caused the patient to need an amputation.
The hospital settled and the case proceeded to trial against the doctor.
The jury found for the doctor and the plaintiff appealed.
The appellate court determined that the jury should have heard instructions on and understood the issue of the “captain of the ship doctrine.” The appellate court found that “the surgeon’s duty to remove all sponges and other foreign objects from the patient’s body is nondelegable” because of the “special relationship” that exists between a patient and surgeon during an operation.
What that means: although, as the surgeon correctly pointed out, the nursing staff had protocols for doing sponge counts, the surgeon could not delegate his duty (to the nurses and their protocols ) to adequately verify that there were no sponges still in his patient.
Based on that special relationship between a vulnerable patient and the surgeon operating on that patient, the court held that “the question to be answered by the jury [on retrial] is not whether Dr. Yusuf had control over how the sponge count was conducted, but whether he had the authority to order the sponge count to be made under his supervision during the operation.”
This case has served as a model for how hospitals can evade some responsibility for their employees by dumping liability onto individual doctors. But, in reality, the case actually sustained the captain of the ship doctrine on far narrower grounds.
The foundational cases establishing the captain of the ship doctrine occurred at a time when nurses had to stand up when a doctor entered the room and surgeons were absolute monarchs of the OR who hand-pick their staff. Remember those days. The appellate court in Fields was looking at a world in which in order to carry out their own non-delegable duties to patients surgeons need reliable information and conduct from other members of the OR team and were therefore responsible for doing what they could reasonably do to make sure that such information and conduct was actually reliable.
It is also essential to remember that even if the “captain of the ship” doctrine is invoked it does not exonerate the person who actually committed the negligence.
So, whither the doctrine…will the “captain of the ship” doctrine, well, wither? If it does, will it actually matter to surgeons who are sued over complex OR cases?
The answer to the first question is “Probably yes”.
The doctrine began at a time when many hospitals enjoyed “charitable immunity” from liability. Plaintiffs were basically powerless if a hospital employee harmed them. Bringing in the doctor – who more than likely actually had selected the staff they worked with – to answer for that employee’s negligence- was the natural remedy.
Now, however, a hospital is likely to be the deepest pocket in a lawsuit and a surgeon is unlikely to have any real control of the staff assigned to them.
The doctrine is therefore likely to be increasingly less applied as such as we go forward.
The answer to the second question, however, is “Probably no”.
That is because the imputed liability as to the surgeon for the conduct of others in the OR is one in which the doctor is being held responsible for exerting control on people who are there with them and whom they can observe and interact with. This is just not the case for many Ors in 2013.
Therefore, even if the idea of a “borrowed servant” is shed as a legal fiction and an outdated way to drag the doctor in as a deep-pocketed link to the otherwise untouchable hospital employee, the surgeon’s own responsibility to monitor the staff and to instruct them when they need to be instructed remains.
If we look at the Fields case what we see is that the facts that would have come in under the “captain of the ship” doctrine – that doing a dual sponge count was the standard of care and the surgeon had the option to require it – are actually facts that bear on the reasonability of the surgeon’s conduct under the circumstances, which is very “plain vanilla” medical negligence law.
In other words, even in the absence of the “captain of the ship” doctrine, a jury could still be told that a dual count was the standard and that, had Dr. Yusuf asked for it, it would have been done and would have likely revealed the error and so prevented the serious harm the patient suffered. So, all Dr. Yusuf needed to do to avoid being sunk for captain of the ship liability was to have ordered a second sponge count.
Therefore, in practice, you are not required to be the “Master and Commander” – you are responsible to be the “last clear chance” and this will apply even if you are in a jurisdiction that has rejected “captain of the ship”.
In summary: While the “captain of the ship” doctrine that declared a surgeon to be in control of their hospital-employed OR staff and so imputedly liable for their conduct is probably on the wane, surgeons remain under non-delegable duties to their uniquely vulnerable patients and evidence that the surgeon could have personally intervened to correct conduct by other members of the OR team can be considered by the jury.
Medical Justice’s thoughts: We have seen cases where plaintiff tries to tag the surgeon with “captain of the ship” liability when nurses report correct sponge count – and there’s an unpleasant surprise down the road. In one case, the nurse was let go sometime later for problems related to on the job substance abuse. The surgeon successfully argued that he had no control over the nurse’s hiring or qualifications, and I believe he was able to dodge that bullet. If the protocol is two sponge counts – just make sure two sponge counts are performed.
“If the protocol is two sponge counts – just make sure two sponge counts are performed.”
And there it is. How many different protocols are there for each OR? When I’m done a difficult case, a sponge count, or its equivalent for endovascular surgery, which I do, is not right at the top of my list of things to think about. Checklists address this problem, and at least some, if not most ORs use them. The annoying, but standard “time out” is one such checklist. I don’t have any personal knowledge whether anyone has avoided doing “oops” surgery because of it, but it’s at least a step in the right direction.
Aside: Know where check lists originated? It was in WW II aircraft. Prior to complex aircraft, barnstormer-type flying machines were pretty much dirt simple. In WW II aircraft, though, the number of pre-flight and in-flight duties became huge. Needless to say, there were a fair number of SNAFUs when aircraft became complex and complicated to fly. The Army Air wing decided that no one, no matter how gifted an aviator, could keep all of the steps in mind when getting ready for and being in the midst of a flight. And so were born checklists.
(And as a pilot, I can attest to how effective they are: they’ve kept my bacon out of the fire on more than one occasion.)
Some “lists” might be as simple as even a single item: we used to use a fair amount of nitropaste to prevent arterial spasm back in the day of large, non-physiologic catheters. On a few occasions, we got calls from the floor asking what they could give a patient for their headache. And after we gave them an order for a pain medication, they asked when they might remove the nitropaste. OUCH! I put a large-lettered sign on the inside door of the angio suite with a single word on it. No one ever died from those few oversights (it happened maybe twice before I figured out that it was a problem that wasn’t going to go away just because we were going to be more diligent), but it was not good patient care, and it was frankly embarrassing.
Bottom line: I’m all about being captain of the ship, or in this case, aircraft. With checklists.
JH
The “Sanctity of Check Lists.”
I remember reading a book many years ago about a surgical resident who described how he learned to do an appendectomy. Basically, he put the entire procedure as a checklist, which he memorized from a sheet of paper. Then, as he progressed, he ran through the checklist until he was completely finished.
The complexity of the above article is breathtaking. Basically it says that although the captain of the ship doctrine is waning, it still remains very much in force, depending upon how many opportunities there are to collect from various pockets.
Plaintiff’s attorneys, although they rather go for the deepest pocket first, never underestimate the value of the insured doctors’ pockets. It’s more a matter of them going down the list to try to collect from anyone and everyone. The “captain of the ship” doctrine is basically in force if it allows them to collect for damages.
The entire issue becomes arguments of counsel.
Check-lists retain their ability to allow us to defend ourselves in almost any patient treatment venue, because they give the illusion that standard of care is being followed, without any lapses. If we can prove we followed our check lists, it gives us the opportunity to prove to a jury that we did what was necessary. For that reason, plaintiff’s attorneys fear them and are not happy at all when completed ones are in YOUR charts.
If the above doctor could prove that he had check lists and that the protocol of the hospital sponge count was only one count, he would have had a better chance to protect himself. I think it comes down to actually requesting hospital staff to complete a checklist for each surgeon, if you can get away with demanding it.
In this day of shortages of qualified hospital personnel, that is unlikely. If you try this you will get hundreds of complaints and eventually the hospital CEO will tell you it is impossible. Unless you are a “key provider” in their corporation, you will not be tolerated, meaning that you bring in hundreds of cases each month.
The bottom line is always the same. You CAN and will be sued for anything you do, even if it comes down to arcane arguments of counsel, who play their little games always at YOUR expense.
Michael M. Rosenblatt, DPM
In almost 30 years of practicing in high acuity high volume and high risk ED’s, I have had only one lawsuit, and it was a “Capt. of the Ship” scenario. A psych patient came in with chest pain, had ekg, enzymes etc, and signed herself out before the next set was due. She went home and then called ems about 5 hours later. The nursing staff recognized her and basically put her unmonitored in a hallway and started psych clearance labs. It was a busy night and I was alone. I just happened to notice patient about an hour after she came back gasping for air and turning grey. She was arresting. To make matters worse, had too go through 2 defective curved and straights that had no light, and then 2 defective defibrillator/monitor devices, all too the horror of the husband who watched. Hospital settled as patient suffered hypoxic brain injury and died 6 months later, from what was an acute MI. I was also sued under the Capt of Ship Doctrine, my actions were very defensible as I saw her when she came in originally, but was not made aware of her return and only happened to notice what was happening by walking by an area I usually do not go to. The contract management groups medmal settled against my wishes and my attorneys wishes, I never signed off on it, but have this little item in the Natiional Bank forever. Do you think there is any merit in sueing the National Practioner Bank given the information stated here. I have absolutely no hiring or firing power in an ED hospital setting, its like a box of choclates.