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Surgeon Liability for Negligence of Operating Room Personnel

Surgeon Liability for Negligence of Operating Room Personnel: the Captain of the Ship Doctrine

Historically, hospitals were not sued for medical malpractice as most were immune from lawsuits on account of their status as charitable institutions. Instead, only physicians were sued. In cases where the malpractice took place in the hospital, such as in the operating room, the surgeon was held responsible for any actions that took place in the operating room as the "captain of the ship." Thus, surgeons were responsible for the negligent acts of other operating room personnel under the "captain of the ship" doctrine even where the surgeon was free from negligence. The doctrine is based on the theory that the surgeon is in charge of everything that goes on in the operating room and is, thus, responsible for any mistakes that occur. Under this doctrine, nurses, residents, and other hospital employees working in the operating room were considered "borrowed servants" who were under the direction and control of the surgeon, and not of the employing hospital, at the time of the surgery.

While the captain of the ship doctrine was the standard rule for liability for surgical errors, many jurisdictions are moving away from it, claiming that it is outdated in modern medical practice. Courts rejecting the captain of the ship doctrine have explained that, with modern surgical procedures becoming more advanced, there is often more than one physician in the operating room. Moreover, with highly trained and specialized nurses performing a wide variety of functions, it is untenable to hold one surgeon responsible for the acts of all involved. Other courts have held that the doctrine is invalid because the surgeon is not able to select the hospital personnel working in the operating room and should, therefore, not be required to assume liability for those employees.

Not all courts have rejected the captain of the ship doctrine, however. An Indiana court held a primary physician responsible for the negligent acts of an assisting surgeon. The court ruled that the primary physician was responsible as captain of the ship because he had dominion and control over the assistant. Other courts upholding the captain of the ship doctrine also rely on whether the surgeon had the ability to control the performance of the borrowed servant's duties in determining whether liability should attach. Where there is no ability for the surgeon to control other operating room personnel, however, it seems clear that the surgeon will no longer be liable as the captain of the ship.

Copyright 2010 LexisNexis, a division of Reed Elsevier Inc.