- Email: [email protected]
“Captain of the ship” doctrine continues to take on water
OCTOBER 2001, VOL 74, NO 4
OR NURSING LAW
“Captain of the ship“ doctrine continues to take on water isconsin has become the latest of many states to either r e h e to adopt or to repudiite their position on the “captain Jf the ship” doctrine. Essentially, this doctrine holds that the surgeon’s mere presence in the OR makes him or her legally responsible for everything that happens there, regardless of whether he or she has any ability to control the actions of others. The Wisconsin Supreme Court declined to adopt the captain of the ship doctrine in the summer of 2001 in Lewis v Physicians Insurance Compaty et aZ(627 NW2d 484 wis 20011). FACTS OF THE CASE The facts of the case were not in dispute. The patient had undergone a cholecystectomyin November 1993. During the procedure, the surgeon packed the patient’s gallbladder with laparotomy sponges. According to the surgical records, the circulating nurse and scrub person conducted four counts (presumablyone initial and three closing), and they reported that all sponges had been removed and collected at the end of the pmcedure. After discharge, the patient began to experience problems, and, in January 1994,the surgeon operated again. During this procedure, the surgeon discovered and removed a retained lapamtomy sponge. After the sponge was removed, the patient recovered. He later sued the hospital and surgeon, claiming each was responsible for the nurses’ negligence in
inaccuratelyaccounting for the sponges. Before the trial, the hospital agreed it was responsible for the actions of its employee nurses and settled with the plaintiff for $50,0OO--the maximum amount allowed under a Wisconsin statute that limits the liability of a county hospital to $50,000. Although the case report says nothing about why the plaintiff chose to proceed against the surgeon, it can be inferred that the surgeon’s insurance provided a chance for a larger damage settlement. The case report also says nothing about whether the nurses had their own insurance. Whether the surgeon should be held vicariously liable for the negligence of the nurses in accounting for the sponges was the only question before the court. The circuit court judge found that as a matter of lm, [the surgeon] is infact responsible
and liablefor the actions of the parties that were in the operating mom with him and working under his supervision . . . [the] doctor is the captain of the ship. That doctor is mponsible for everything.‘ Although this may be a widely held view of many laypersons, it is not an accurate statement of Wisconsin law. Wisconsin never adopted the captain of the ship doctrine, and when the physician appealed the circuit court’s decision, the appellate court reversed 525 AORN JOURNAL
the decision, noting that even among states that had adopted the doctrine, it “has generally lapsed into disuse . . . with the passage of time.’n The plaintiff then appealed to the Wisconsin Supreme Court. In its decision to decline to adopt the captain of the ship doctrine, the Supreme Court carefilly reviewed the law of vicarious liability in Wisconsin and in cases in other states that had adopted the doctrine. It concluded that the doctrine is antiquated and fails to reflect the emergence of hospitals as modem health care facilities. For purposes of this discussion, it is important to note that the plaintiff did not claim that the nurses were “borrowed servants” of the surgeon, nor did he claim that the surgeon had any personal responsibility for counting the sponges. If he had claimed that the nurses were the surgeon’s borrowed servants (ie, under the supervision and control of the surgeon as if they were his employees), the judge or jury would have been required to determine that fact based on all of the evidence. If it was found that the nurses were under the surgeon’s supervision and control, the surgeon could be vicariously liable. Likewise, if the surgeon had a role in counting sponges, he or she would be responsible for his or her own negligence in doing so. These issues were not raised by the plaintiff; therefore, the only way the plaintiff could prevail against the surgeon was to convince the court to adopt the
OCTOBER 2001,VOL 74, NO 4
captain of the ship doctrine. DECISION It is a basic principle of law that one typically is liable only for his or her own actions and not the actions of others. In certain circumstances, however, the law does impose vicarious liability on a non-negligent party. This is liability that a supervisory party (eg, an employer)bears for the actions of a subordinate (eg, an employee) because of the relationship between the parties. This relationship exists regardless of whether the supervisor has control over the actions of the subordinate. “Respondeat superior” is the most common example of vicarious liability. This doctrine allows a non-negligent employer to be liable for an employee’s actions. In this case, the hospital admitted it could be held vicariously liable for the negligence of its employee nurses. The surgeon, however, was not the nurses’ employer; thus, respondeat superior did not apply. This would have been different, however, had the surgeon privately employed the nurses. The court examined the origin of the captain of the ship doctrine in other states. It found that the doctrine is an outgrowth of another largely defunct doctrine, that of “charitable immunity” for hospitals. Charitable immunity was put in place during the 1940s because most hospitals at that time were charitable institutions dependent on donor largesse and unlikely to financially survive a negligence action. Charitable immunity protected hospitals from lawsuits until the late 1950s. The captain of the ship doctrine, which first emerged in 1949 and gained acceptance during the 1950s, provided patients a viable avenue for recovery h m injuries. The Wisconsin Supreme Court observed that hospitals today have become big businesses, competing
with each other for health care dollars. As the image of the modem hospital has evolved (much of it self-induced), so too has the law with respect to the hospital’s responsibility and liability. Today, hospitals are better situated to
The captain of the ship doctrine emerged as a patient3 avenue for recovery from
insure against liability. The Court also noted that the captain of the ship doctrine is at odds with the individual surgeon’s diminished control of the modern OR that is caused by the increasing complexity of technology, increasing specialization, and the division of responsibility.’ The Court also noted the actions taken by other states with regard to this “anachronistic” doctrine. Examples include Pennsylvania, which first raised the captain of the ship doctrine in McConnelI v Williams (65 A2d 243 [Penn 19491) and has since rejected it in Thomas v Hutchinson (275 A2d 23,27-28 [Penn 19711) and Tonsic v Wagner (329 A2d 497,499-501 [Penn 19741) because of the demise of charitable immunity. Others declining to adopt the doctrine or abrogating it include the following states. Iowa in Tappe v Iowa Methodist Medical Center (477 NW2d 396,402403 [Iowa 19911) noted that the captain of the ship doctrine is not in accord with modem practice 526 AORN JOURNAL
and refused to adopt it. New Jersey in Sesselman v Muhlenberg Hospital (306 A2d 474,476 WJ Super Ct App Div 19731) rejected the captain of the ship doctrine. North Dakota in Nelson v Trinity Medical Center (4 19 NW2d 886,892 19881) limited the captain of the ship doctrine to cases where the physician has “direct control” over nurses’ actions. Ohio in Baird v Sickler (433 NE2d 593,595 [Ohio 19821) refused to “breathe new life into that now prostrate doctrine.” rn Oregon in M q v Broun (492 P2d 776,780-81 [Ore 19721) acknowledged that changes in the OR have made it impossible for the surgeon to directly supervise all personnel and concluded that the captain of the ship doctrine is no longer viable with the demise of charitable immunity. Tennessee in Parker v Vanderbilt University (767 SW2d 412,415 [Tern Ct App 19881) asserted that the term captain of the ship is confusing and unnecessary. Texas in Spaqer v Worley Hospital (547 SW2d 582,585 [Tex 19771) disapproved of the captain of the ship doctrine as a “false special rule of agency.” West Viginia in Thomas v Raleigh General Hospital (358 SE2d 222,224-25 v a 19871) observed that the “majority of states which are now considering the captain of the ship doctrine are rejecting it” and rejected the doctrine. Some states still adhere to the doctrine, and some have not had occasion to overrule it; however, this doctrine clearly never had a strong legal basis and now is in decline. As the Texas Supreme Court stated in 1977, quoting Justice Felix FlankfiuZer and applying his reasoning to the
OCTOBER 2001, VOL 74, NO 4
captain of the ship doctrine in another inaccurate sponge count case,
A phrase begins life as a lite r a y expression; itsfelicity leads to its lazy repetition; and repetition soon establishes it as a legal formula, indiscriminatelyused to express different and sometimes contradictory ideas.‘ WHAT THE DECISION
DOES NOT SAY The rejection of the captain of the ship doctrine is both good and bad for perioperative nurses. It is legal recognition that surgeons do not control everything in the OR, and it recognizes that nurses do hnction autonomously. As noted in the concurring opinion, however, it also is important not to read the court’s decision too broadly. Every case must be examined within the confines of the facts of the particular incident that presented it. It would be a mistake to conclude that a surgeon can never be held liable for the negligence of perioperative nurses. A surgeon could be held vicariously liable if nurses are under his or her control and supervision. Whether nurses are under a surgeon’s control will depend on the evidence presented in each case. In the Lewis case, neither party claimed the surgeon controlled the nurses. In another case, a judge or jury could conclude that a surgeon did or should have exercised control
and supervision, and, if so, he or she could be held vicariously liable for the nurses’ negligence. All the Lewis case says is that the negligence of nurses who follow hospital policy but count sponges inaccurately can be imputed to their employer but not to the surgeon. Neither does this case support the conclusion that a surgeon cannot be held liable for a retained sponge if nurses inaccurately report a correct count. The Sparger case seemed to suggest this. Other states have found that a surgeon has a nondelegable duty to remove all sponges that were placed before closing. This means that a surgeon has an independent duty, separate from that of nurses, to examine the wound or otherwise ensure that no sponges are retained. Even if a state does not recognize a nondelegable duty, a surgeon who does not comply with hospital policy or procedure in the counting of sponges could find himself or herself liable if that noncompliance confused the count or precluded nurses from maintaining an accurate count. SUMMARY The captain of the ship doctrine, which has been interpreted to mean that the surgeon’s mere presence in the OR subjects him or her to legal liability for everyone’s negligence in that room (akin to the responsibility of the captain of a ship who is held responsible for everything that
NOTES 1. Lewis v Physicians Insurance Company et al, 621 NW2nd 487 (Wis 2001). 2. Ibid. 3. S H Price, “The sinking of the captain of the ship:
happens on that ship), emerged in 1949 and grew in popularity through the 1950s. The major reason for this doctrine’s popularity was that injured patients were precluded from suing hospitals under the then applicable charitable immunity doctrine. Charitable immunity declined in the 1960s, and by the 1970s, so too was the captain of the ship doctrine in decline. Pennsylvania, which first used the picturesque phrase in 1949, rejected the doctrine in 1974. In the meantime, it has come under much criticism, even among states that adopted it. Despite this decline and despite court language that sometimes borders on ridicule (eg, anachronistic, prostrate doctrine, indiscriminate repetition), the felicity of the phrase has kept it alive in some states and in many ORs, even in states that have expressly rejected the doctrine. Even more than 20 years after its first rejection, however, courts still are being asked to adopt the doctrine. In 2001, the Wisconsin Supreme Court declined to adopt the doctrine, adding to the litany of states that have taken an express position against it. ELLEN K. MURPHY RN, JD, FAAN PROFESSOR UNIVERSITY OF WISCONSIN, MILWAUKEE OF NURSING SCHOOL The above information is intended for general infomation only. Specific situdons should be reviewed by legal counsel.
Reexamining the vicarious liability of the operating surgeon of the negligence of assisting hospitalpersor&el,” Journal ofLega1 Medicine 10 (June 1989) 323,340-341. 4. Sparger v Worlq Hospital, 541 SW2d 582,585 (Tex 1977).
528 AORN JOURNAL
OR NURSING LAW
“Captain of the ship“ doctrine continues to take on water isconsin has become the latest of many states to either r e h e to adopt or to repudiite their position on the “captain Jf the ship” doctrine. Essentially, this doctrine holds that the surgeon’s mere presence in the OR makes him or her legally responsible for everything that happens there, regardless of whether he or she has any ability to control the actions of others. The Wisconsin Supreme Court declined to adopt the captain of the ship doctrine in the summer of 2001 in Lewis v Physicians Insurance Compaty et aZ(627 NW2d 484 wis 20011). FACTS OF THE CASE The facts of the case were not in dispute. The patient had undergone a cholecystectomyin November 1993. During the procedure, the surgeon packed the patient’s gallbladder with laparotomy sponges. According to the surgical records, the circulating nurse and scrub person conducted four counts (presumablyone initial and three closing), and they reported that all sponges had been removed and collected at the end of the pmcedure. After discharge, the patient began to experience problems, and, in January 1994,the surgeon operated again. During this procedure, the surgeon discovered and removed a retained lapamtomy sponge. After the sponge was removed, the patient recovered. He later sued the hospital and surgeon, claiming each was responsible for the nurses’ negligence in
inaccuratelyaccounting for the sponges. Before the trial, the hospital agreed it was responsible for the actions of its employee nurses and settled with the plaintiff for $50,0OO--the maximum amount allowed under a Wisconsin statute that limits the liability of a county hospital to $50,000. Although the case report says nothing about why the plaintiff chose to proceed against the surgeon, it can be inferred that the surgeon’s insurance provided a chance for a larger damage settlement. The case report also says nothing about whether the nurses had their own insurance. Whether the surgeon should be held vicariously liable for the negligence of the nurses in accounting for the sponges was the only question before the court. The circuit court judge found that as a matter of lm, [the surgeon] is infact responsible
and liablefor the actions of the parties that were in the operating mom with him and working under his supervision . . . [the] doctor is the captain of the ship. That doctor is mponsible for everything.‘ Although this may be a widely held view of many laypersons, it is not an accurate statement of Wisconsin law. Wisconsin never adopted the captain of the ship doctrine, and when the physician appealed the circuit court’s decision, the appellate court reversed 525 AORN JOURNAL
the decision, noting that even among states that had adopted the doctrine, it “has generally lapsed into disuse . . . with the passage of time.’n The plaintiff then appealed to the Wisconsin Supreme Court. In its decision to decline to adopt the captain of the ship doctrine, the Supreme Court carefilly reviewed the law of vicarious liability in Wisconsin and in cases in other states that had adopted the doctrine. It concluded that the doctrine is antiquated and fails to reflect the emergence of hospitals as modem health care facilities. For purposes of this discussion, it is important to note that the plaintiff did not claim that the nurses were “borrowed servants” of the surgeon, nor did he claim that the surgeon had any personal responsibility for counting the sponges. If he had claimed that the nurses were the surgeon’s borrowed servants (ie, under the supervision and control of the surgeon as if they were his employees), the judge or jury would have been required to determine that fact based on all of the evidence. If it was found that the nurses were under the surgeon’s supervision and control, the surgeon could be vicariously liable. Likewise, if the surgeon had a role in counting sponges, he or she would be responsible for his or her own negligence in doing so. These issues were not raised by the plaintiff; therefore, the only way the plaintiff could prevail against the surgeon was to convince the court to adopt the
OCTOBER 2001,VOL 74, NO 4
captain of the ship doctrine. DECISION It is a basic principle of law that one typically is liable only for his or her own actions and not the actions of others. In certain circumstances, however, the law does impose vicarious liability on a non-negligent party. This is liability that a supervisory party (eg, an employer)bears for the actions of a subordinate (eg, an employee) because of the relationship between the parties. This relationship exists regardless of whether the supervisor has control over the actions of the subordinate. “Respondeat superior” is the most common example of vicarious liability. This doctrine allows a non-negligent employer to be liable for an employee’s actions. In this case, the hospital admitted it could be held vicariously liable for the negligence of its employee nurses. The surgeon, however, was not the nurses’ employer; thus, respondeat superior did not apply. This would have been different, however, had the surgeon privately employed the nurses. The court examined the origin of the captain of the ship doctrine in other states. It found that the doctrine is an outgrowth of another largely defunct doctrine, that of “charitable immunity” for hospitals. Charitable immunity was put in place during the 1940s because most hospitals at that time were charitable institutions dependent on donor largesse and unlikely to financially survive a negligence action. Charitable immunity protected hospitals from lawsuits until the late 1950s. The captain of the ship doctrine, which first emerged in 1949 and gained acceptance during the 1950s, provided patients a viable avenue for recovery h m injuries. The Wisconsin Supreme Court observed that hospitals today have become big businesses, competing
with each other for health care dollars. As the image of the modem hospital has evolved (much of it self-induced), so too has the law with respect to the hospital’s responsibility and liability. Today, hospitals are better situated to
The captain of the ship doctrine emerged as a patient3 avenue for recovery from
insure against liability. The Court also noted that the captain of the ship doctrine is at odds with the individual surgeon’s diminished control of the modern OR that is caused by the increasing complexity of technology, increasing specialization, and the division of responsibility.’ The Court also noted the actions taken by other states with regard to this “anachronistic” doctrine. Examples include Pennsylvania, which first raised the captain of the ship doctrine in McConnelI v Williams (65 A2d 243 [Penn 19491) and has since rejected it in Thomas v Hutchinson (275 A2d 23,27-28 [Penn 19711) and Tonsic v Wagner (329 A2d 497,499-501 [Penn 19741) because of the demise of charitable immunity. Others declining to adopt the doctrine or abrogating it include the following states. Iowa in Tappe v Iowa Methodist Medical Center (477 NW2d 396,402403 [Iowa 19911) noted that the captain of the ship doctrine is not in accord with modem practice 526 AORN JOURNAL
and refused to adopt it. New Jersey in Sesselman v Muhlenberg Hospital (306 A2d 474,476 WJ Super Ct App Div 19731) rejected the captain of the ship doctrine. North Dakota in Nelson v Trinity Medical Center (4 19 NW2d 886,892 19881) limited the captain of the ship doctrine to cases where the physician has “direct control” over nurses’ actions. Ohio in Baird v Sickler (433 NE2d 593,595 [Ohio 19821) refused to “breathe new life into that now prostrate doctrine.” rn Oregon in M q v Broun (492 P2d 776,780-81 [Ore 19721) acknowledged that changes in the OR have made it impossible for the surgeon to directly supervise all personnel and concluded that the captain of the ship doctrine is no longer viable with the demise of charitable immunity. Tennessee in Parker v Vanderbilt University (767 SW2d 412,415 [Tern Ct App 19881) asserted that the term captain of the ship is confusing and unnecessary. Texas in Spaqer v Worley Hospital (547 SW2d 582,585 [Tex 19771) disapproved of the captain of the ship doctrine as a “false special rule of agency.” West Viginia in Thomas v Raleigh General Hospital (358 SE2d 222,224-25 v a 19871) observed that the “majority of states which are now considering the captain of the ship doctrine are rejecting it” and rejected the doctrine. Some states still adhere to the doctrine, and some have not had occasion to overrule it; however, this doctrine clearly never had a strong legal basis and now is in decline. As the Texas Supreme Court stated in 1977, quoting Justice Felix FlankfiuZer and applying his reasoning to the
OCTOBER 2001, VOL 74, NO 4
captain of the ship doctrine in another inaccurate sponge count case,
A phrase begins life as a lite r a y expression; itsfelicity leads to its lazy repetition; and repetition soon establishes it as a legal formula, indiscriminatelyused to express different and sometimes contradictory ideas.‘ WHAT THE DECISION
DOES NOT SAY The rejection of the captain of the ship doctrine is both good and bad for perioperative nurses. It is legal recognition that surgeons do not control everything in the OR, and it recognizes that nurses do hnction autonomously. As noted in the concurring opinion, however, it also is important not to read the court’s decision too broadly. Every case must be examined within the confines of the facts of the particular incident that presented it. It would be a mistake to conclude that a surgeon can never be held liable for the negligence of perioperative nurses. A surgeon could be held vicariously liable if nurses are under his or her control and supervision. Whether nurses are under a surgeon’s control will depend on the evidence presented in each case. In the Lewis case, neither party claimed the surgeon controlled the nurses. In another case, a judge or jury could conclude that a surgeon did or should have exercised control
and supervision, and, if so, he or she could be held vicariously liable for the nurses’ negligence. All the Lewis case says is that the negligence of nurses who follow hospital policy but count sponges inaccurately can be imputed to their employer but not to the surgeon. Neither does this case support the conclusion that a surgeon cannot be held liable for a retained sponge if nurses inaccurately report a correct count. The Sparger case seemed to suggest this. Other states have found that a surgeon has a nondelegable duty to remove all sponges that were placed before closing. This means that a surgeon has an independent duty, separate from that of nurses, to examine the wound or otherwise ensure that no sponges are retained. Even if a state does not recognize a nondelegable duty, a surgeon who does not comply with hospital policy or procedure in the counting of sponges could find himself or herself liable if that noncompliance confused the count or precluded nurses from maintaining an accurate count. SUMMARY The captain of the ship doctrine, which has been interpreted to mean that the surgeon’s mere presence in the OR subjects him or her to legal liability for everyone’s negligence in that room (akin to the responsibility of the captain of a ship who is held responsible for everything that
NOTES 1. Lewis v Physicians Insurance Company et al, 621 NW2nd 487 (Wis 2001). 2. Ibid. 3. S H Price, “The sinking of the captain of the ship:
happens on that ship), emerged in 1949 and grew in popularity through the 1950s. The major reason for this doctrine’s popularity was that injured patients were precluded from suing hospitals under the then applicable charitable immunity doctrine. Charitable immunity declined in the 1960s, and by the 1970s, so too was the captain of the ship doctrine in decline. Pennsylvania, which first used the picturesque phrase in 1949, rejected the doctrine in 1974. In the meantime, it has come under much criticism, even among states that adopted it. Despite this decline and despite court language that sometimes borders on ridicule (eg, anachronistic, prostrate doctrine, indiscriminate repetition), the felicity of the phrase has kept it alive in some states and in many ORs, even in states that have expressly rejected the doctrine. Even more than 20 years after its first rejection, however, courts still are being asked to adopt the doctrine. In 2001, the Wisconsin Supreme Court declined to adopt the doctrine, adding to the litany of states that have taken an express position against it. ELLEN K. MURPHY RN, JD, FAAN PROFESSOR UNIVERSITY OF WISCONSIN, MILWAUKEE OF NURSING SCHOOL The above information is intended for general infomation only. Specific situdons should be reviewed by legal counsel.
Reexamining the vicarious liability of the operating surgeon of the negligence of assisting hospitalpersor&el,” Journal ofLega1 Medicine 10 (June 1989) 323,340-341. 4. Sparger v Worlq Hospital, 541 SW2d 582,585 (Tex 1977).
528 AORN JOURNAL