During a surgery, there will be multiple people in the room.

Several types of nurses and surgical

assistants will be helping the primary surgeon, secondary surgeon, and anesthesiologist make
sure that everything in your surgery goes smoothly.

Despite the many people in the room, the lead surgeon has a particular responsibility to ensure
that everyone working on your operation performs as required. Sometimes, this duty means that
a surgeon can be found legally responsible for the mistakes that a nurse or other assistant makes
during the procedure.

For example, if a nurse who is in charge of counting sponges loses track, and a sponge is left
inside a patient, the surgeon may be responsible for the nurse’s negligence if the surgeon could
have or should have prevented the mistake.

Normally, a surgeon is not responsible for the negligence of someone else during an operation,
especially when the operating staff is not employed by the surgeon. However, the captain of the
ship doctrine allows injured patients to have another source of recovery for the compensation
they need after a botched surgery. Even if the person who made a mistake is not part of the
operating surgeon’s normal staff, the surgeon could still be liable for that person’s negligence if
the surgeon had the right to control his or her work.

Patients cannot be expected to understand and decide which people are qualified to assist their
surgeon during an operation. Accordingly, the captain of the ship doctrine puts that responsibility
onto the surgeon, who is more qualified to ensure that a surgery is mistake free. When mistakes
happen, the surgeon has the liability because the surgeon was supposed to supervise and control
the procedure

Captain of the Ship Rule

Dr. Ampil was the lead surgeon during the operation of Natividad. He requested the assistance of
Dr. Fuentes only to perform hysterectomy when he found that the malignancy in her sigmoid
area had spread to her left ovary. Dr. Fuentes performed the surgery and thereafter reported and
showed his work to Dr. Ampil. The latter examined it and finding everything to be in order,
allowed Dr. Fuentes to leave the operating room. Dr. Ampil then resumed operating on
Natividad. He was about to finish the procedure when the attending nurses informed him that
two pieces of gauze were missing. A “diligent search” was conducted, but the misplaced gauzes
were not found. Dr. Ampil then directed that the incision be closed. During this entire period, Dr.
Fuentes was no longer in the operating room and had, in fact, left the hospital.

Under the “Captain of the Ship” rule, the operating surgeon is the person in complete charge of
the surgery room and all personnel connected with the operation. Their duty is to obey his orders.
(Rural Educational Assn. v. Bush, 42 Tenn. App. 34, 298 S.W. 2d 761 (1956)). As stated before,
Dr. Ampil was the lead surgeon. In other words, he was the “Captain of the Ship”. That he
discharged such role is evidenced from his following conduct: (1) calling Dr. Fuentes to perform
a hysterectomy; (2) examining the work of Dr. Fuentes and finding it in order; (3) granting Dr.
Fuentes’ permission to leave; and (4) ordering the closure of the incision. It was this act of
ordering the closure of the incision notwithstanding that two pieces of gauze remained
unaccounted for, that caused injury to Natividad’s body. Clearly, the control and management of
the thing which caused the injury was in the hands of Dr. Ampil, not Dr. Fuentes.

In this jurisdiction, res ipsa loquitur is not a rule of substantive law, hence, does not per se create
or constitute an independent or separate ground of liability, being a mere evidentiary rule. In
other words, mere invocation and application of the doctrine does not dispense with the
requirement of proof of negligence. Here, the negligence was proven to have been committed by
Dr. Ampil and not by Dr. Fuentes.

(3) Whether PSI is liable for the negligence of Dr. Ampil.

The third issue necessitates a glimpse at the historical development of hospitals and the resulting
theories concerning their liability for the negligence of physicians.

Until the mid-nineteenth century, hospitals were generally charitable institutions, providing
medical services to the lowest classes of society, without regard for a patient’s ability to pay.
Those who could afford medical treatment were usually treated at home by their doctors.
However, the days of house calls and philanthropic health care are over. The modern health care
industry continues to distance itself from its charitable past and has experienced a significant
conversion from a not-for-profit health care to for-profit hospital business. Consequently,
significant changes in health law have accompanied the business-related changes in the hospital
industry. One important legal change is an increase in hospital liability for medical malpractice.
Many courts now allow claims for hospital vicarious liability under the theories of respondeat
superior, apparent authority, ostensible authority, or agency by estoppel.

The statute governing liability for negligent acts is Article 2176 of the Civil Code, which reads:

Article 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter.
A derivated of this provision is Article 2180, the rule governing vicarious liability under the
doctrine of respondeat superior, thus:

Article 2180. The obligation imposed by Article 2176 is demandable not only for one’s own acts
or omissions, but also for those of persons for whom one is responsible.

xxx xxx

The owners and managers of an establishment or enterprise are likewise responsible for damages
caused by their employees in the service of the branches in which the latter are employed or on
the occasion of their functions.

Employers shall be liable for the damages caused by their employees and household helpers
acting within the scope of their assigned tasks even though the former are not engaged in any
business or industry.

xxx xxx

The responsibility treated of in this article shall cease when the persons herein mentioned prove
that they observed all the diligence of a good father of a family to prevent damage.

Professionals engaged by an employer, such as physicians, dentists, and pharmacists, are not
“employees” under this article because the manner in which they perform their work is not
within the control of the latter (employer). In other words, professionals are considered
personally liable for the fault or negligence they commit in the discharge of their duties, and their
employer cannot be held liable for such fault or negligence. In the context of the present case, “a
hospital cannot be held liable for the fault or negligence of a physician or surgeon in the
treatment or operation of patients.

Such view is grounded on the traditional notion that the professional status and the very nature of
the physician’s calling preclude him from being classed as an agent or employee of a hospital,
whenever he acts in a professional capacity. It has been said that medical practice strictly
involves highly developed and specialized knowledge, such that physicians are generally free to
exercise their own skill and judgment in rendering medical services sans interference. Hence,
when a doctor practices medicine in a hospital setting, the hospital and its employees are deemed
to subserve him in his ministrations to the patient and his actions are of his own responsibility.

The case of Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92, 52
L.R.A., N.S. 505 (1914), was then considered an authority for this view. The “Schloendorff
doctrine” regards a physician, even if employed by a hospital, as an independent contractor
because of the skill he exercises and the lack of control exerted over his work. Under this
doctrine, hospitals are exempt from the application of the respondeat superior principle for fault
or negligence committed by physicians in the discharge of their profession.

However, the efficacy of such doctrine has weakened with the significant developments in
medical care. Courts came to realize that modern hospitals are increasingly taking active role in
supplying and regulating medical care to patients. No longer were a hospital’s functions limited
to furnishing room, food, facilities for treatment and operation, and attendants for its patients.
Thus, in Bing v. Thunig, 2 N.Y. 2d 656, 163 NYS 2d 3, 143 (1957), the New York Court of
Appeals deviated from the Schloendorff doctrine, noting that modern hospitals actually do far
more than provide facilities for treatment. Rather, they regularly employ, on a salaried basis, a
large staff of physicians, interns, nurses, administrative and manual workers. They charge
patients for medical care and treatment, even collecting for such services through legal action, if
necessary. The court then concluded that there is no reason to exempt hospitals from the
universal rule of respondeat superior.

In our shores, the nature of the relationship between the hospital and the physicians is rendered
inconsequential in view of our categorical pronouncement in Ramos v. Court of Appeals, that for
purposes of apportioning responsibility in medical negligence cases, an employer-employee
relationship in effect exists between hospitals and their attending and visiting physicians. Thus, it
was held:

“We now discuss the responsibility of the hospital in this particular incident. The unique practice
(among private hospitals) of filling up specialist staff with attending and visiting “consultants”,
who are allegedly not hospital employees, presents problems in apportioning responsibility for
negligence in medical malpractice cases. However, the difficulty is more apparent than real.

In the first place, hospitals exercise significant control in the hiring and firing of consultants and
in the conduct of their work within the hospital premises. Doctors who apply for ‘consultant’
slots, visiting or attending, are required to submit proof of completion of residency, their
educational qualifications, generally, evidence of accreditation by the appropriate board
(diplomate), evidence of fellowship in most cases, and references. These requirements are
carefully scrutinized by members of the hospital administration or by a review committee set up
by the hospital who either accept or reject the application.

After a physician is accepted, either as a visiting or attending consultant, he is normally required

to attend clinico-pathological conferences, conduct bedside rounds for clerks, interns and
residents, moderate grand rounds and patient audits and perform other tasks and responsibilities,
for the privilege of being able to maintain a clinic in the hospital, and/or for the privilege of
admitting patients into the hospital. In addition to these, the physician’s performance as a
specialist is generally evaluated by a peer review committee on the basis of mortality and
morbidity statistics, and feedback from patients, nurses, interns and residents. A consultant
remiss in his duties, or a consultant who regularly falls short of the minimum standards
acceptable to the hospital or its peer review committee, is normally politely terminated.

In other words, private hospitals, hire, fire and exercise real control over their attending and
visiting ‘consultant’ staff. While ‘consultants’ are not, technically employees, x x x , the control
exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of
an employer-employee relationship, with the exception of the payment of wages. In assessing
whether such a relationship in fact exists, the control test is determining. Accordingly, on the
basis of the foregoing, we rule that for the purpose of allocating responsibility in medical
negligence cases, an employer-employee relationship in effect exists between hospitals and their
attending and visiting physicians.”

A surgeon is responsible for the negligence of other medical practitioners or nurses who are under his
or her supervision and control and actively participating during an operation.

• The “captain of the ship” doctrine imposes liability on a surgeon under the doctrine of respondeat
superior for the acts of those under the surgeon’s special supervision and control during the
operation. (Thomas v. Intermedics Orthopedics, Inc. (1996) 47 Cal.App.4th 957, 967 [55 Cal.Rptr.2d
197].)
• “The doctrine has been explained as follows: ‘A physician generally is not liable for the negligence
of hospital or other nurses, attendants, or internes, who are not his employees, particularly where he
has no knowledge thereof or no connection therewith. On the other hand, a physician is liable for the
negligence of hospital or other nurses, attendants, or internes, who are not his employees, where such
negligence is discoverable by him in the exercise of ordinary care, he is negligent in permitting them
to attend the patient, or the negligent acts were performed under conditions where, in the exercise of
ordinary care, he could have or should have been able to prevent their injurious effects and did not.
The mere fact that a physician or surgeon gives instructions to a hospital employee does not render
the physician or surgeon liable for negligence of the hospital employee in carrying out the
instructions. Similarly, the mere right of a physician to supervise a hospital employee is not
sufficient to render the physician liable for the negligence of such employee. On the other
hand, if the physician has the right to exercise control over the work to be done by the hospital
employee and the manner of its performance, or an employee of a hospital is temporarily detached in
whole or in part from the hospital’s general control so as to become the temporary servant of the
physician he assists, the physician will be subject to liability for the employee’s negligence.
[¶] Thus, where a hospital employee, although not in the regular employ of an operating surgeon, is
under his special supervision and control during the operation, the relationship of master and servant
exists, and the surgeon is liable, under the doctrine of respondeat superior, for the employee’s
negligence.’ ” (Thomas, supra, 47 Cal.App.4th at pp. 966–967, original italics.)
• This doctrine applies only to medical personnel who are actively participating in the surgical
procedure. (Thomas, supra, 47 Cal.App.4th at pp. 966–967.)
• While the “captain of the ship” doctrine has never been expressly rejected, it has been eroded by
modern courts. “A theory that the surgeon directly controls all activities of whatever nature in the
operating room certainly is not realistic in present day medical care.” (Truhitte, supra, 128
Cal.App.3d at p. 348,
original italics.)
• “[T]he Truhitte court ignores what we have already recognized as the special
relationship between a vulnerable hospital patient and the surgeon operating on
the patient. A helpless patient on the operating table who cannot understand or
control what is happening reasonably expects a surgeon to oversee her care and
to look out for her interests. We find this special relationship sufficient
justification for the continued application of captain of the ship doctrine.
Moreover, in light of the Supreme Court’s expressions of approval of the
doctrine . . . , we feel compelled to adhere to the doctrine.” (Baumgardner,
supra, 144 Cal.App.4th at pp. 1397–1398, internal citations omitted.)
• Absent evidence of right to control, an operating surgeon is generally not
responsible for the conduct of anesthesiologists or others who independently
carry out their duties. (Seneris v. Haas (1955) 45 Cal.2d 811, 828 [291 P.2d
915]; Marvulli v. Elshire (1972) 27 Cal.App.3d 180, 187 [103 Cal.Rptr. 461].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 976
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.4
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.45 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.11 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons, § 175.25
(Matthew Bender)
MEDICAL NEGLIGENCE CACI No. 510
415
0025