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.