AORN JOURNAL
OCTOBER 1990, VOL. 52, NO 4
OR Nursing Law Applications of the ‘captain of the ship’ doctrine
U
nder the “captain of the ship” doctrine, the surgeon is likened to the captain of a ship, and it is his or her duty to control everything that is going on in the operating room. Liability is imposed by virtue of the surgeon’s status, and it can be imposed without actually showing that the surgeon is in control (Thomas vs Raleigh General Hospital 358 SE 2d 222 [WVa 19871).
History
T
he phrase captain of the ship was first used by the Pennsylvania Supreme Court in McConnell vs William 65 A 2d 243 (Pa 1949). This court did not recognize a new doctrine, but essentially applied traditional principles of agency law that hold one person liable for the actions of another person who he or she has the right to control. The question in McConnell was whether an operating obstetrician should be liable for the negligence of an intern. After a cesarean delivery, the obstetrician handed the baby to an intern. The intern cut the cord and administered silver nitrate into the baby’s eyes, but failed to subsequently irrigate the eyes. The intern was an employee of the hospital, not of the obstetrician, when the delivery took place. It is well established that employers are liable for the negligence of their employees, in part because employers have the right to control their employees. This case occurred in 1949 and, like most states at that time, Pennsylvania protected nonprofit hospitals from suit under the
charitable immunity doctrine. The parents sued the obstetrician because they could not sue the hospital. The issue of right to control is the crucial one. The Pennsylvania Supreme Court decided that the obstetrician could be held liable for the negligence of the intern because the obstetrician testified that “he had complete control of the operating room and every person within it while the operation was in progress,” (McConnell at 246). In light of this testimony, the Pennsylvania court stated that, it can readily be understood that in the course of an operation . , . the surgeon . . . is in the same complete charge of those 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 anesthetized unconscious patient is entitled (Id at 246). In the actual holding of the case, however, the court said, “If. . . it is true (emphasis added) [that the obstetrician] had . . . the right to give orders to the intern in regard to the very act in the performance of which the latter was negligent,” the jury could find the relationship between the two was one of temporary master and servant. Consequently, the obstetrician was legally liable for the harm caused by any negligence on the part of the intern (Id at 246). Courts also use the “borrowed servant” doctrine to describe the situation in which the employer “lends” the employee to another and accords that third person the right to control the employee. 863
OCTOBER 1990, VOL. 52, NO 4
AORN JOURNAL
Now that patients can sue hospitals, there is less reason to hold surgeons liable for negligence of other OR personnel. Initial Misuse
E
ven though the court’s statement made it clear that it did not intend to create a new doctrine, various courts in other states began to quote the McConnell court’s use of the phrase in other decisions that involved intraoperative injuries. The facile attractiveness of the phrase captain of the ship as a convenient simile or metaphor for the surgeon in the OR resulted in its misuse in legal decisions, and, “unfortunately, that simile came to receive more attention than the holding of the case,” (Franklin vs Gupta 567 A 2d 524, 536 [Md App 19901). In one of the most referenced cases that clarifies and repudiates the use of the phrase to represent a separate legal principle, the Texas Supreme Court noted, “similes sometimes help to explain a factual situation, but in legal writing, phrases have a way of being canonized and of growing until they can stand and walk independently of the usual general rules,” (Sparger vs Worley Hospital 547 SW 2d 582, 584 [Tex App 19771). Th‘IS court went on to quote one of the most famous US Supreme Court justices, Mr Justice Frankfurter, on phrase making in judicial opinions. The phrase . . . is an excellent illustration of the extent to which uncritical use of words bedevils the law. A phrase begins life as a literaly expression; its felicity leads to its lazy repetition; and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictoly ideas (Tiller vs Atlantic Coast Lines 318 U S 54 [1943]). Through indiscriminate use of the phrase, it evolved into a separate legal doctrine, but most states have rejected it for two primary reasons. First, hospitals are no longer immune from suit, and there is no longer a reason to recognize a separate theory to allow patients injured in the operating room an avenue of recovery. Second,
courts are recognizing the complexities and realities of intraoperative care. The Oregon Supreme Court cited both reasons in 1972 when it rejected the captain of the ship doctrine. It is not presently necessary to go to such lengths . . . tofind a defendant who has the ability to satisb a judgment and to spread the loss because charitable immunity for hospitals has been abolished (May vs Brown 492 P 2d 776,781 [Ore 19721). In other words, now that the patient can sue the actual employer of the OR personnel (ie, the hospital), there is less reason to hold surgeons liable for the negligence of other OR personnel. The May court also pointed out that changes are occurring within the operating room. Surgeons are operating in a more specialized environment created by hospitals. Hospitals are furnishing technical equipment, which is now necessary, and hiring and training personnel to operate it. As a result, in most instances, a surgeon cannot actually have direct supervision or control over such equipment and the persons who operate it even when he or she is present, if he or she is going to give the concentration and attention to the surgely that the patient has the right to expect (Id at 78 1).
Current Beliefs
M
aryland most recently addressed and rejected the doctrine. In the Franklin case, the plaintiff was described as an “unfortunate soul with a host of physical and emotional problems . . . including asthma, emphysema, hyperthyroidism, and morbid obesity,” who was scheduled for a carpal tunnel release at 10 AM July 17, 1981 (Franklin at 526). The anesthesiologist visited him on the afternoon of July 16, decided against general anesthesia, and opted for 865
AORN JOURNAL
an axillary or brachial block. He failed to record his evaluation in the patient’s chart or to discuss the case with the nurse anesthetist. The nurse anesthetist examined the patient just before surgery and decided to use a brachial block supplemented with fentanyl (Sublimaze’”). He administered 1 mL of Sublimaze’” and the block while the patient was in the holding room. As the patient was taken to the OR, the nurse anesthetist administered a second mL, and about 10 minutes later, he gave a third. Shortly after administering the third dose of Sublimaze““,the nurse anesthetist assessed the brachial block as “patchy” and wanted to give the patient another block. The surgeon, however, insisted that he put the patient to sleep. Believing general anesthesia to be inappropriate, the nurse anesthetist decided to consult the anesthesiologist. He summoned another nurse anesthetist to monitor the patient while he left to consult with the anesthesiologist, who was administering anesthesia in another room. When the nurse anesthetist returned to the OR, the patient had arrested. The patient was promptly intubated and treated with atropine, and his heartbeat returned to normal without any apparent anoxia. The anesthesiologist appeared and instructed the surgeon to cancel the case. The patient never had the surgery. He sued the surgeon, the anesthesiologist, the nurse anesthetist, and the hospital. Among several other questions before the court was whether the surgeon should be liable, under the captain of the ship doctrine, for the nurse anesthetist’s alleged negligence in overmedicating the patient. The jury found the anesthesiologist, primary nurse anesthetist, and hospital liable to the patient in the amount of $375,000 and found the surgeon not liable. The trial courtjudge ruled that $375,000 was “grossly excessive” and granted the defendants’ request for a new trial unless the plaintiff agreed to accept an award of $50,000. The plaintiff appealed, claiming, among other things, that the trial judge erred in refusing to instruct the jury that the surgeon should be liable for the negligence of the anesthetist. The appellate court upheld the trial judge on this point, stating that, “we reject any ‘captain of the ship’ theory 866
OCTOBER 1990, VOL. 52, NO 4
of liability,” (Id at 530).
Conclusion
S
urgeons have found the phrase captain of the ship felicitous. They behave like judges in their predilection to indiscriminately adopt and misuse the phrase. The fact remains that most states do not recognize it as a legal doctrine. In those that do, it is grossly unfair to surgeons. In today’s complex, fast-paced operating rooms where there is great potential for error, there is no way a surgeon can exercise continuous control of each person’s every action, even if he or she wanted to. To hold the surgeon legally liable for failure to do so simply is not realistic. Perioperative nurses may find the phrases master and servant or borrowed servant no less applicable to professional nursing autonomy than captain of the ship. The former phrases have been used for centuries and refer to the general legal principle, still valid today, that people who have the right to control the actions of others also are legally liable if those actions are performed negligently. For a surgeon to be liable for actions of an OR nurse, there must be evidence presented at trial that the surgeon had the right to control the actions of the nurse. If the surgeon employs the nurse, control is established as a matter of law. If the hospital employs the nurse, the surgeon’s right to control the nurse is not clear and must be decided by the jury. Whether they know it or not, claims that surgeons have the right to control the OR nurse are not in the surgeon’s best legal interest. ELLENK. MURPHY, RN, JD, CNOR, FAAN UNIVERSITY OF WISCONSIN-MILWAUKEE The above information is intended for general information on&. Specific situations should be reviewed by legal counsel. rfyou have quesfions on OR nursing law that you would like answered, please send them to Ellen K. Murphy, JD, c/o AORN Journal, 10170 E Mississ@pi A ve, Denver, CO 80231.
OCTOBER 1990, VOL. 52, NO 4
OR Nursing Law Applications of the ‘captain of the ship’ doctrine
U
nder the “captain of the ship” doctrine, the surgeon is likened to the captain of a ship, and it is his or her duty to control everything that is going on in the operating room. Liability is imposed by virtue of the surgeon’s status, and it can be imposed without actually showing that the surgeon is in control (Thomas vs Raleigh General Hospital 358 SE 2d 222 [WVa 19871).
History
T
he phrase captain of the ship was first used by the Pennsylvania Supreme Court in McConnell vs William 65 A 2d 243 (Pa 1949). This court did not recognize a new doctrine, but essentially applied traditional principles of agency law that hold one person liable for the actions of another person who he or she has the right to control. The question in McConnell was whether an operating obstetrician should be liable for the negligence of an intern. After a cesarean delivery, the obstetrician handed the baby to an intern. The intern cut the cord and administered silver nitrate into the baby’s eyes, but failed to subsequently irrigate the eyes. The intern was an employee of the hospital, not of the obstetrician, when the delivery took place. It is well established that employers are liable for the negligence of their employees, in part because employers have the right to control their employees. This case occurred in 1949 and, like most states at that time, Pennsylvania protected nonprofit hospitals from suit under the
charitable immunity doctrine. The parents sued the obstetrician because they could not sue the hospital. The issue of right to control is the crucial one. The Pennsylvania Supreme Court decided that the obstetrician could be held liable for the negligence of the intern because the obstetrician testified that “he had complete control of the operating room and every person within it while the operation was in progress,” (McConnell at 246). In light of this testimony, the Pennsylvania court stated that, it can readily be understood that in the course of an operation . , . the surgeon . . . is in the same complete charge of those 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 anesthetized unconscious patient is entitled (Id at 246). In the actual holding of the case, however, the court said, “If. . . it is true (emphasis added) [that the obstetrician] had . . . the right to give orders to the intern in regard to the very act in the performance of which the latter was negligent,” the jury could find the relationship between the two was one of temporary master and servant. Consequently, the obstetrician was legally liable for the harm caused by any negligence on the part of the intern (Id at 246). Courts also use the “borrowed servant” doctrine to describe the situation in which the employer “lends” the employee to another and accords that third person the right to control the employee. 863
OCTOBER 1990, VOL. 52, NO 4
AORN JOURNAL
Now that patients can sue hospitals, there is less reason to hold surgeons liable for negligence of other OR personnel. Initial Misuse
E
ven though the court’s statement made it clear that it did not intend to create a new doctrine, various courts in other states began to quote the McConnell court’s use of the phrase in other decisions that involved intraoperative injuries. The facile attractiveness of the phrase captain of the ship as a convenient simile or metaphor for the surgeon in the OR resulted in its misuse in legal decisions, and, “unfortunately, that simile came to receive more attention than the holding of the case,” (Franklin vs Gupta 567 A 2d 524, 536 [Md App 19901). In one of the most referenced cases that clarifies and repudiates the use of the phrase to represent a separate legal principle, the Texas Supreme Court noted, “similes sometimes help to explain a factual situation, but in legal writing, phrases have a way of being canonized and of growing until they can stand and walk independently of the usual general rules,” (Sparger vs Worley Hospital 547 SW 2d 582, 584 [Tex App 19771). Th‘IS court went on to quote one of the most famous US Supreme Court justices, Mr Justice Frankfurter, on phrase making in judicial opinions. The phrase . . . is an excellent illustration of the extent to which uncritical use of words bedevils the law. A phrase begins life as a literaly expression; its felicity leads to its lazy repetition; and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictoly ideas (Tiller vs Atlantic Coast Lines 318 U S 54 [1943]). Through indiscriminate use of the phrase, it evolved into a separate legal doctrine, but most states have rejected it for two primary reasons. First, hospitals are no longer immune from suit, and there is no longer a reason to recognize a separate theory to allow patients injured in the operating room an avenue of recovery. Second,
courts are recognizing the complexities and realities of intraoperative care. The Oregon Supreme Court cited both reasons in 1972 when it rejected the captain of the ship doctrine. It is not presently necessary to go to such lengths . . . tofind a defendant who has the ability to satisb a judgment and to spread the loss because charitable immunity for hospitals has been abolished (May vs Brown 492 P 2d 776,781 [Ore 19721). In other words, now that the patient can sue the actual employer of the OR personnel (ie, the hospital), there is less reason to hold surgeons liable for the negligence of other OR personnel. The May court also pointed out that changes are occurring within the operating room. Surgeons are operating in a more specialized environment created by hospitals. Hospitals are furnishing technical equipment, which is now necessary, and hiring and training personnel to operate it. As a result, in most instances, a surgeon cannot actually have direct supervision or control over such equipment and the persons who operate it even when he or she is present, if he or she is going to give the concentration and attention to the surgely that the patient has the right to expect (Id at 78 1).
Current Beliefs
M
aryland most recently addressed and rejected the doctrine. In the Franklin case, the plaintiff was described as an “unfortunate soul with a host of physical and emotional problems . . . including asthma, emphysema, hyperthyroidism, and morbid obesity,” who was scheduled for a carpal tunnel release at 10 AM July 17, 1981 (Franklin at 526). The anesthesiologist visited him on the afternoon of July 16, decided against general anesthesia, and opted for 865
AORN JOURNAL
an axillary or brachial block. He failed to record his evaluation in the patient’s chart or to discuss the case with the nurse anesthetist. The nurse anesthetist examined the patient just before surgery and decided to use a brachial block supplemented with fentanyl (Sublimaze’”). He administered 1 mL of Sublimaze’” and the block while the patient was in the holding room. As the patient was taken to the OR, the nurse anesthetist administered a second mL, and about 10 minutes later, he gave a third. Shortly after administering the third dose of Sublimaze““,the nurse anesthetist assessed the brachial block as “patchy” and wanted to give the patient another block. The surgeon, however, insisted that he put the patient to sleep. Believing general anesthesia to be inappropriate, the nurse anesthetist decided to consult the anesthesiologist. He summoned another nurse anesthetist to monitor the patient while he left to consult with the anesthesiologist, who was administering anesthesia in another room. When the nurse anesthetist returned to the OR, the patient had arrested. The patient was promptly intubated and treated with atropine, and his heartbeat returned to normal without any apparent anoxia. The anesthesiologist appeared and instructed the surgeon to cancel the case. The patient never had the surgery. He sued the surgeon, the anesthesiologist, the nurse anesthetist, and the hospital. Among several other questions before the court was whether the surgeon should be liable, under the captain of the ship doctrine, for the nurse anesthetist’s alleged negligence in overmedicating the patient. The jury found the anesthesiologist, primary nurse anesthetist, and hospital liable to the patient in the amount of $375,000 and found the surgeon not liable. The trial courtjudge ruled that $375,000 was “grossly excessive” and granted the defendants’ request for a new trial unless the plaintiff agreed to accept an award of $50,000. The plaintiff appealed, claiming, among other things, that the trial judge erred in refusing to instruct the jury that the surgeon should be liable for the negligence of the anesthetist. The appellate court upheld the trial judge on this point, stating that, “we reject any ‘captain of the ship’ theory 866
OCTOBER 1990, VOL. 52, NO 4
of liability,” (Id at 530).
Conclusion
S
urgeons have found the phrase captain of the ship felicitous. They behave like judges in their predilection to indiscriminately adopt and misuse the phrase. The fact remains that most states do not recognize it as a legal doctrine. In those that do, it is grossly unfair to surgeons. In today’s complex, fast-paced operating rooms where there is great potential for error, there is no way a surgeon can exercise continuous control of each person’s every action, even if he or she wanted to. To hold the surgeon legally liable for failure to do so simply is not realistic. Perioperative nurses may find the phrases master and servant or borrowed servant no less applicable to professional nursing autonomy than captain of the ship. The former phrases have been used for centuries and refer to the general legal principle, still valid today, that people who have the right to control the actions of others also are legally liable if those actions are performed negligently. For a surgeon to be liable for actions of an OR nurse, there must be evidence presented at trial that the surgeon had the right to control the actions of the nurse. If the surgeon employs the nurse, control is established as a matter of law. If the hospital employs the nurse, the surgeon’s right to control the nurse is not clear and must be decided by the jury. Whether they know it or not, claims that surgeons have the right to control the OR nurse are not in the surgeon’s best legal interest. ELLENK. MURPHY, RN, JD, CNOR, FAAN UNIVERSITY OF WISCONSIN-MILWAUKEE The above information is intended for general information on&. Specific situations should be reviewed by legal counsel. rfyou have quesfions on OR nursing law that you would like answered, please send them to Ellen K. Murphy, JD, c/o AORN Journal, 10170 E Mississ@pi A ve, Denver, CO 80231.
