Sinking-shipWith all of the recent cruise ship debacles, I was reminded of a doctrine often applied in malpractice cases informally referred to as the “Captain of the Ship” doctrine.  This doctrine suggests that a surgeon has the ultimate responsibility for the care of the patient, and has a non-delegable duty to ensure that proper care is given while in the operating room.  Simply put, the physician is the captain of the ship during the operation being performed by that physician. 

The phrase “Captain of the Ship” was first created by the Pennsylvania Supreme Court in McConnell v. Willimas, 361 Pa. 355, 65 A.2d 243, 246 (1949) where the court stated that “. . . It can readily be understood that 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 …” 

McConnell specifically addressed the question of whether a surgeon could be liable for the negligence of an intern who was employed by the hospital.  On appeal, the Pennsylvania Supreme Court held that when the surgeon requested the assistance of the intern who was employed by the hospital, the surgeon became responsible for the negligent acts of this “borrowed servant.”  The court reasoned that, when the surgeon was in the operating room, he was in charge of those assisting him just as a captain of a ship was in charge of all on board.  The true test of liability was whether the principal had control over the agent when the agent committed the negligent act.  Ultimately, the Pennsylvania Supreme Court articulated the “Captain of the Ship” doctrine, holding surgeons responsible for any negligent conduct in the operating room just as a captain of a ship is responsible for the actions of its crew.

The Nebraska Supreme Court has adopted this “Captain of the Ship” doctrine.  In Darrah v. Bryan Memorial Hospital, 253 Neb. 710, 571 N.W.2d 783 (1998), the Court indicated that during surgery, the head surgeon assumes exclusive control of the patient and is generally responsible for the actions of other members of the surgical team.  The duty imposed upon the surgeon with respect to his or her surgical team means that a physician cannot avoid liability for negligence when the physician “assigns work consequent to a duty.”  Swierczek v. Lynch, 237 Neb. 469, 482, 466 N.W.2d 512, 520 (1991).  

Applying this doctrine, the Nebraska courts have held a neurosurgeon responsible for the negligence of a radiologist because the neurosurgeon had delegated to the radiologist the responsibility of determining whether the neurosurgeon had marked the proper spinal area for operation, a head surgeon liable for his assistant’s packing of bowels during surgery, and a surgeon responsible for the actions of his surgical team with respect to the positioning of the patient on the operating table.

The lesson here is that if you find yourself as the captain of your ship, make sure you don’t get sunk by your surgical crew!