Captain of the Ship in Medical Malpractice

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Contents

Introduction

Fifty years ago, the supreme court of Pennsylvania established a judicial precedent regarding physician liability in medical malpractice cases that was subsequently followed by most courts throughout the country. The ‘captain of the ship’ doctrine, as it became known, established that a surgeon was responsible for any negligent conduct in the operating room just as the captain of a ship is responsible for the actions of its crew. This doctrine has been modified since that time but remains an important benchmark for plaintiff and defense attorneys involved in medical malpractice. Legal precedents in medical malpractice law outline the responsibilities that neurosurgeons have for other physicians, nurses, residents and support staff both inside and outside of the operating room. Knowledge of these precedents will help the neurosurgeon to anticipate situations where malpractice liability may arise and guide practice behavior to limit exposure to liability.

This article describes the legal precedents that have developed and modified the ‘captain of the ship’ doctrine in Pennsylvania. Although each of the 50 states may have variations in its laws with regard to this doctrine, many have followed the lead of Pennsylvania on this issue making this state a good model for understanding the legal responsibilities and medical malpractice issues related to the ‘captain of the ship’.

Discussion

In most states when a patient brings a negligence claim against a physician, the patient must establish the standard elements of a so-called ‘tort’ case. A tort is a violation of a duty imposed by the law on an individual. In medical malpractice, the elements of that tort include: the existence of a duty owed to the patient, a breach of that duty, and a causal link between the breach of duty and damages sustained by the patient. Thus the patient in a medical malpractice case must prove either that (1) the physician did not possess and employ the required skill and knowledge or (2) that he did not exercise the care and judgment of a reasonable man in like cases. In addition, the patient must prove that the injury claimed either (1) resulted from the failure on the part of the physician to possess and employ the required skill and knowledge or (2) resulted from his failure to exercise the care and judgment of a reasonable man in like circumstances. [1] When the breach of duty pertains directly to acts of the physician it becomes a question for the jury to decide if the behavior of the physician was, in fact, negligent. A more complicated legal situation arises when the breach of duty is instead related to a third party (e.g. another physician, resident, nurse, physician’s assistant, or technician) but imputed to the physician because of the physician’s relationship to that third party as an employer or agent.

In 1949, Pennsylvania became the first state to address this issue when the Pennsylvania Supreme Court decided the case of McConnell v. Williams. In this case the court determined that Dr. Williams could be held liable for damages sustained by an infant he had just delivered even though the damage was not directly caused by him but rather by an intern assisting him (the intern applied silver nitrate to the infant’s eyes while Dr. Williams attended to the hemorrhaging of the infant’s mother). The court reasoned that “…in the course of an operation…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, and that such supreme control is indeed essential in view of the high degree of protection to which an anaesthetized and unconscious patient is entitled…”[2] With this decision, physicians who had the right or responsibility to control the actions of the ‘agents’ or ‘employees’ assisting them became subject to liability for negligent acts committed by those individuals.

At the time this legal decision was handed down, hospitals, that employ many of the individuals such as nurses, interns, residents, and laboratory staff that assist physicians, were immune from sharing liability with physicians in cases where its employee committed a negligent act. Hospitals were exempted from liability for negligent acts committed by its employees under a doctrine of ‘charitable immunity’. Because hospitals were considered charitable organizations with the goal of serving the community, imposing liability on them was thought to undermine that charitable purpose. However, in 1965 the Pennsylvania Supreme Court abrogated the charitable immunity status of hospitals [3] with most states subsequently following suit. Thus after 1965, hospitals and physicians became subject to the same liability risks for negligent acts committed by employees of the hospital. Subsequent cases held that a hospital employee could act as an agent to both a hospital and a physician. [4,5]

Elements of a third party medical malpractice claim

An attorney reviewing a medical negligence case where the negligent act was a direct result of someone other than the physician (i.e. where an issue of whether the third party was an agent of the physician) must answer three questions: 1) was that person an agent of the physician? 2) was the physician in control of that agent at the time the alleged negligent act was committed?; and 3) was that person also an agent of another entity (e.g. a hospital)? Answering these questions will help determine which parties should be held accountable and as a result, named in the medical malpractice claim.

The first and second questions are interrelated. Whether an individual is an agent of another is entirely dependent on whether the first individual (agent) is under control of the second (employer). The legal test for determining this relationship is whether the employer has the right to control the agent with regard to the work to be done and the manner of performing it [6]. In addition, the work must be performed in the business of the employer or for his benefit. [7] Actual control is not essential. It is the right to control that is determinative. The right to merely supervise, even as to the work and the manner of performance, is not sufficient. [8] Those employers that have sufficient control over their agents are liable for negligent acts made by that agent during the course of that agent’s employment.

Physician control over nurses

There is a general rule that hospital employees administering treatment in the regular course of hospital services are not held to be agents of a physician. [2] There are two exceptions to this rule. One is when the physician is acting in the special relationship to hospital employees as surgeon in the operating room. The definition of ‘operating room’ is somewhat loose. It has been extended to a room where only local anesthesia was used during the treatment of esophageal dilation. [14] The second exception is less commonly cited but would include situations where there is evidence of the physician’s control or right to control by virtue of his physical presence in the room while treatment is being administered such as in a treatment room on a hospital ward. ‘Captain of the ship’ control of nurses by physicians in the operating room is well established. In Myers v. Thomas Jefferson University Hospital [9], the operating room nurses (employees of the hospital) present when the surgeon asked those in the room to help correctly identify which side to operate on, were determined to be solely agents of the surgeon at the time negligence occurred. A similar situation of the surgeon held to be in control of nurses in the operating room occurred in Benedict v. Bondi [15] where a student nurse applying hot water bottles during surgery to the feet of a child was found to be the agent of the surgeon.

Outside the operating room physicians have less control of nurses and are not held to the employer/agent standard. For example, in Muller v. Likoff [10] and Honeywell v. Rogers [11] courts held that ward nurses giving injections into the buttock causing permanent neuropathy to a patient’s leg were not the agent of the prescribing physician but just of the hospital employing them. Likewise in Tiburzio v. Montgomery [22], nurses asked to emergently summon an anesthesiologist for the defendant obstetrician were held to be agents acting on behalf of the hospital and not the obstetrician.

Physician control over interns and residents

The employer/agent relationship between attending surgeon and surgical resident is more complicated. While the employer/agent relationship between attending surgeon and resident when both parties are in the operating room is obvious to any surgeon or surgical resident, that relationship does not exculpate the resident from liability. Most state laws do not preclude an intern or resident from practicing medicine without the immediate, physical direction of an attending physician. [21] Thus because the law does not recognize the intern or resident as anything less than a independent, practicing physician, a resident may be held independently liable in a medical malpractice case. For example, in Easter v. Hancock [17], two residents assisting Dr. Hancock, the attending surgeon, were held liable for two hemostats that were inadvertently left in Mr. Easter. Despite being agents of Dr. Hancock, the court reasoned that the residents were also taking instruments in and out of the abdomen and thus were in a position to see that all hemostats were removed. (See also Tonsic v. Wagner [18] where an intern was held jointly liable for leaving a Kelly clamp in Mrs. Tonsic).

When the attending surgeon exits the operating room leaving the residents to continue or complete the surgery and negligence subsequently occurs, there is no presumption of negligence on the part of the attending surgeon. In Thomas v. Hutchinson [20] the court did not hold Dr. Hutchinson negligent when three residents left sponges in the patient after he had left the room and asked them to close the wound.

Outside the operating room, attending physicians have also been found to be the ‘employer’ of their resident ‘agents’. In Schuler v. Berger [12] the court held Dr. Berger to have control over a resident and intern when a post-partum patient developed progressive abdominal pain and cramping due to an undiagnosed acute rupture of sigmoid colon diverticulitis. Despite being uninformed by the resident and intern of the patient’s acute demise in the early hours of the morning, the court reasoned Dr. Berger had enough knowledge of the patient’s condition prior to that time to uphold the jury’s verdict finding him solely negligent. Similarly, in Yorston v. Pannell an attending surgeon with knowledge that a resident prescribed penicillin for a patient (but without knowledge that the patient was allergic to penicillin) was found to be solely liable for the acts of that resident when the penicillin caused a cerebrovascular accident due to an allergic reaction. [13] In Gillis v. Metropolitan Hospital and Cooper, D.O., [16] the court determined that an intern caring for a patient could be the agent of both the hospital and the attending physician after the patient injured herself by escaping from bed restraints ordered by the intern and checked by the attending physician. In contrast, courts have put limits on the control an attending physician may have over an intern or resident. For example in Scacchi v. Montgomery [19] an intern who cared for a patient post-operatively was independently liable for damages the patient suffered while the attending surgeon was engaged in another operation and was not made aware of the patient’s condition by the intern.

Thus attending physicians have broad employer/agent relationships with interns and residents that may be limited by the physician’s knowledge of the clinical situation and the ability to be physically present at the time negligence occurs. This relationship does not exculpate the resident from liability however. The resident may share liability with the attending physician if his negligence is found by the court to be contributory to the patient’s injury.

Surgeon control over other operating room physicians

Even more complicated in the employer/agent analysis is the relationship between surgeons and other operating room physicians and anesthesiology professionals. A succession of cases in the last 30 years has established the attending surgeon ‘employer’ to the anesthesiologist ‘agent’. In Rockwell v. Kaplan [23] and Rockwell v. Stone [24], a U.S. Federal Court found the attending surgeon liable for the negligent actions of the chief of the anesthesiology department and anesthesia assistants despite not having any knowledge about complications that occurred during the administration of sodium pentothal into the patient’s arm. Similarly, in Mazer v. Lipschutz [25] the court held an attending surgeon liable for negligent acts of the chief of the anesthesiology department, another anesthesiologist in the department, and the head technician from the hospital’s blood bank when a patient received a mislabeled blood transfusion in the operating room that led to renal failure and subsequent death. Employer/agent relationships were also found between surgeon, chief anesthesiologist, and another attending anesthesiologist in Schneider v. Albert Einstein Medical Center, Northern Division [26] when the anesthesiologists had significant difficulties with the patient’s intubation. Interestingly however, courts have not found the attending surgeon to be the ‘employer’ to a nurse anesthetist due to a lack of requisite control. (See e.g. Dion v. Graduate Hospital of the University of Pennsylvania [27].)

What this series of cases highlights is that while the attending surgeon has requisite control over anesthesiology physicians, the control over the agents of those anesthesiology physicians (i.e. nurse anesthetists) is apparently insufficient to create an employer/agent relationship with the surgeon. On the other hand, control over other ancillary services (such as the blood bank’s chief technician in Mazer [25]) does seem to be sufficient. Perhaps this points to a willingness to recognize first-degree agents of the attending surgeon (e.g. anesthesiologist physicians, radiology physicians, surgical interns and residents, scrub nurses, circulating nurses, blood bank or perfusionist technicians, and neurophysiology monitoring staff) but not second-degree agents (e.g. nurse anesthetists, radiology technicians, surgical equipment washers, housekeeping personnel) to be under sufficient control to create an employer/agent relationship.

Shared liability of physician groups and hospitals

After the loss of charitable immunity in 1965, Pennsylvania courts have extended the employer/agent relationship to hospitals and physician groups. Despite failing to directly provide patient care, courts have held that the policy of a physician group or hospital may impute liability to that organization. For example, in Tiburzio v. Montgomery [22] the court held that the anesthesiology group that was to administer care but was not immediately available at the time the patient’s injury occurred, could be held liable for an improper protocol for summoning anesthesiologists to the hospital. The inability of the nurse in the delivery room to contact a second call anesthesiologist in a timely manner was enough to impute negligence to the entire anesthesiology group.

Thus even if no employee of the group is so negligent as make the group liable (note that negligence on behalf of one partner of the group is imputable to other partners of that same group in joint and several liability when the negligence is committed within the scope of the partnerships business; see e.g. Baxter v. Wunder [28]), it must be determined whether the group was negligent in devising rules and regulations which govern the standards of its practice.

This same standard is applied to hospital policy. Under most state law, hospitals owe a non-delegable duty to patients and can be found liable for the breach of those duties independent of the negligence of its employees or agents. Hospitals have: (1) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; (2) a duty to select and retain only competent physicians; (3) a duty to oversee all persons who practice medicine within its walls as to patient care; and (4) a duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for its patients. [29] Thus a hospital is required to establish and enforce policies that meet the duties incumbent upon it. For example, in Bilonoha v. Zubritzky [30] and Tonsic [19], the courts held that a hospital without a policy for counting instruments at the end of a case could be negligent as an institution along with the surgeon when instruments were left in a patient’s wound.

The cumulative duties of the hospital as well as those imposed on physicians and hospital personnel, allows plaintiffs to name physicians, individual hospital personnel, physician groups and hospitals in the same medical malpractice claim. It is important to note that this does not prevent any one of the defendants from making a cross-claim against one of the other defendants. Thus in a medical malpractice claim brought by a patient against a defendant surgeon, anesthesiologist and nurse could have a concurrent claim of the surgeon against the anesthesiologist or the surgeon against the nurse or vice versa.

Conclusion

The ‘captain of the ship’ doctrine plays an important role in determining liability of physicians, especially surgeons, in medical malpractice cases. Surgeons have broad legal duties to control ‘agents’ such as anesthesiologists, surgical residents, nurses, and technicians both in and out of the operating room. The responsibility to control these agents in effect makes them the ‘captain of the ship’. While liability for patient injuries may be shared by other personnel, practice groups, and hospitals, a physician should be aware of this responsibility to monitor and control the clinical situations and personnel that the are reasonably expected.

References

1. Richmond v. A.F. of L. Medical Service Plan of Philadelphia, 421 Pa. 269, 218 A. 2d 303 (1966).

2. McConnell v. Williams 361 Pa. 355; 65 A.2d 243.

3. Flagiello v. Pennsylvania Hospital 417 Pa. 486; 208 A.2d 193.

4. Yorston v. Pennell 397 Pa. 28, 153 A.2d. 255 (1959)

5. Rockwell v. Kaplan 404 Pa. 574, 173 A.2d 54 (1961)

6. Collins v. Hand, 431 Pa. 378, 246 A.2d 398 (1968)

7. McGrath v. Edward G. Budd Manufacturing Co., 348 Pa. 619, 36 A.2d 303

8. Orris v. Roberts, 392 Pa. 572, 141 A.2d 393

9. Myers v. Thomas Jefferson University Hospital, 1985 U.S. Dist. Lexis 16200

10. Muller v. Likoff, 225 Pa. Super. 111, 310 A.2d 303 (1973)

11. Honeywell v. Rogers, 251 F. Supp. 841 (1966)

12. Schuler v. Berger, 275 F.Supp 120 (1967)

13. Yorston v. Pennell, 397 Pa. 28; 153 A.2d 255 (1959)

14. Isard v. Atkins, 5 Phila. 521 (1981)

15. Benedict v. Bondi, 384 Pa. 574, 122 A.2d 209 (1956)

16. Gillis v. Metropolitan Hospital and Howard B. Cooper, D.O., 4 Phila. 396 (1980)

17. Easter v. Hancock, 237 Pa. Super. 31, 346 A.2d 323 (1975)

18. Tonsic v. Wagner, 220 Pa. Super. 468, 289 A.2d 138 (1972)

19. Scacchi v. Montgomery, 365 Pa. 377, 75 A,2d 535 (1950)

20. Thomas v. Hutchinson, 442 Pa. 118, 275 A.2d 23 (1971)

21. 63 P.S.§ 422.2 (1999)

22. Tiburzio v. Montgomery, 452 Pa. Super. 158, 681 A.2d 757 (1996)

23. Rockwell v. Kaplan, 404 Pa. 574, 173 A.2d 54 (1961)

24. Rockwell v. Stone, 404 Pa. 561, 173 A.2d 48 (1961)

25. Mazer v. Lipschutz, 327 F.2d 42 (1963)

26. Schneider v. Albert Einstein Medical Center, Northern Division, 257 Pa. Super. 348, 390 A.2d 1971 (1978)

27. Dion v. The Graduate Hospital of the University of Pennsylvania, 14 Phila. 201 (1986)

28. Baxter v. Wunder, 89 Pa. Super. 585 (1926)

29. Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991)

30. Bilonoha v. Zubritzky, 233 Pa. Super. 136, 336 A.2d 351 (1975)

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