Question: The “Captain of the Ship” doctrine:
A. Is a legal principle used mostly in maritime law.
B. Is applicable only to surgeons in the operating room.
C. Is good law in all jurisdictions.
D. May be used by plaintiffs in emergency department triage litigation.
E. Originated when hospitals lost their charitable immunity.
Answer: D. Historically, the Captain of the Ship doctrine imputes liability to the surgeon who has the authority and right to control the actions of his assistants in the operating room.
Pennsylvania famously saw the use of the phrase in a 1949 case: “In the course of an operation in the operating room of a hospital, and until the surgeon leaves that room at the conclusion of the operation … he is in the same complete charge of those who are present and assisting him as is the captain of a ship over all on board.”1
Public hospitals in the 1940s were immune from liability because they were charitable organizations, so the Captain of the Ship doctrine emerged as a means for injured patients to recover damages against the surgeon instead. Courts have used various legal theories to justify this doctrine, which is basically grounded in vicarious liability, e.g., master-servant relationship (respondeat superior), borrowed servant, a nondelegable duty, or more broadly, principles of agency.
Use of the doctrine to shift liability to the surgeon in the operating room is well exemplified in litigation over retained sponges, left-behind instruments, burns in the operating room, administration of the wrong blood type, and allergic reaction to penicillin. Actual control of the surgeon’s assistants is not essential, but the right to merely supervise is insufficient. What is dispositive is the right and authority to determine an assistant’s actions.
However, what constitutes an “operating room” has been in dispute. It may simply mean a circumscribed and controlled area for medical procedures and/or treatment. Thus, the term has been extended to a room where only local anesthesia was used for esophageal dilation. Reasoning by analogy, the modern-day heart catheterization lab or interventional radiology suite would arguably count as “operating rooms” where the procedurist-doctor, usually a nonsurgeon, may be deemed to function as the captain of the ship.
Another place where a nonsurgeon may be involved is the hospital ED. It has been stated that emergency physicians have been held liable for adverse outcomes resulting from the patients under triage, based on the Captain of the Ship doctrine.2 Once a patient arrives in the ED, a legal duty to provide care arises, even if the physician has yet to see the patient. The federal Emergency Medical Treatment and Labor Act, which regulates much of what happens in the nation’s emergency departments, covers “any individual ... [who] comes to the emergency department and a request is made on the individual’s behalf for examination or treatment for a medical condition.”
Still, the doctrine is less likely to be invoked in a more spread-out area such as a general medical ward, where a physician’s control cannot be reasonably expected.
For example, courts have held that ward nurses giving injections into the buttock causing permanent neuropathy to a patient’s leg were not the agents of the prescribing physician, but just of the hospital employing them. The doctrine also was rejected in Collins v. Hand by the Pennsylvania Supreme Court, which reversed a judgment against a psychiatrist defendant.3 In the Collins case, notwithstanding the fact that the psychiatrist, Dr. Hand, had personally arranged for the patient’s transfer to another hospital and wrote orders for electroconvulsive therapy (which was complicated by fractures), Dr. Hand did not choose the doctor who was to administer the therapy, nor did he hire, compensate, or control any of the team members.
In the 1960s, hospitals began losing their charitable immunity status and assumed direct as well as vicarious liability for injuries to patients from the negligent acts of their employees, such as nurses. The key policy reason for having the Captain of the Ship doctrine then no longer existed. Besides, operating rooms became increasingly complex, and the senior surgeon was thought to be incapable of being in charge of all activities there.
Wisconsin is typical: A retained sponge following a laparoscopic cholecystectomy led to complications, and the patient sued the hospital and surgeon, claiming each was responsible for the nurses’ sponge-count error. The lower court had found that “as a matter of law [the surgeon] is in fact responsible and liable for the actions of the parties that were in the operating room with him and working under his supervision ... [the] doctor is the captain of the ship. That doctor is responsible for everything.”
Upon appeal, the Wisconsin Supreme Court reversed the decision of the lower court by rejecting the doctrine altogether, finding that it failed to reflect the emergence of hospitals as modern health care facilities.5
Still, the doctrine is by no means obsolete. In a Colorado case, the court wrote that, even if the nurse were an employee of the hospital and her negligence caused the death of plaintiff’s husband, the Captain of the Ship doctrine would preclude recovery against the hospital.6 It relied on a precedent-setting case that held that once the operating surgeon assumed control in the operating room, the surgeon is liable for the negligence of all persons working there.
Likewise, California has recently breathed new life into the doctrine.7 A case in 2006 involved a patient who underwent arterial bypass surgery in his right leg. A case in which a nurse’s counting error led to a retained sponge ended up with the patient losing his leg. The surgeon initially escaped liability by virtue of the court’s refusal to include Captain of the Ship instructions to the jury, which found the doctor not negligent. The state court of appeals reversed, however, concluding that it was reasonably probable that the jury might have reached a different result had it been so instructed.