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Rough waters: Liability for the ‘captain of the ship’
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With the erosion of the traditional autonomy of clinical practice, especially in large institutions, it is relevant to re-examine legal doctrines, such as “captain of the ship” that can create surgeon liability from the actions of others. These doctrines recognized that surgeons have such authority and control that under certain circumstances, they should be responsible for mistakes made by others in the OR. Yet, in modern times, it is not uncommon for surgeons to be employees of large organizations, and/or function as one member of a team, with shared control and decision making. As an example, in most ORs today, the surgeon must stand by at the beginning of surgery while a hospital employee dutifully chants the time-out procedure and other mandates. Is the surgeon still liable for mistakes made by others during surgery?
The general rule has been that a surgeon is not liable for the negligent actions of hospital staff who are not employed by him or her. Two exceptions exist. The first can occur when a surgeon discovers a non-employee’s negligent conduct during the course of ordinary care, and fails to address or prevent the harm from that conduct. The second exception can be invoked when the non-employee is under the surgeon’s direct supervision and control such that vicarious liability is triggered for the acts of the non-employee.
The goal of this article is to examine the surgeon liability vs. the liability of hospital staff in a number of cases in which a surgical sponge was left behind in the patient. These cases help illustrate the scope and limitation of the captain of the ship doctrine and related legal principles, especially at a time of rapid change in the health care environment that is moving away from a physician-centric model to a team-based approach.
B. Sonny Bal
Fields v. Yusuf
In 2002, Ms. Fields underwent a right lower extremity arteriogram that showed arterial occlusion. The 75-year-old patient had a history of vascular disease and had previously had a contralateral above-knee amputation. Her surgeon, Dr. Yusuf performed an arterial bypass graft to restore blood flow. At the end of surgery, two sponge counts were correct.
Fields returned to the OR the next day for a thrombectomy of the newly implanted graft. The nurse and scrub tech knew Yusuf well and had helped him for many years. One sponge count was done, and it was correct. The patient recovered, but had persistent right leg and calf swelling. She later developed an infection, and Yusuf irrigated and debrided the popliteal fossa, where a retained sponge was found. The infection proved serious, such that despite aggressive surgical management, an above-the-knee amputation was performed, leaving the patient without limbs below the knee. Fields sued the hospital and Yusuf. The hospital settled separately, so the subsequent litigation related to Yusuf alone.
Dueling perspectives
At jury trial, the plaintiff argued that while Yusuf and the nursing staff were both culpable, Yusuf had the final responsibility during surgery for the retained sponge. Plaintiff’s expert thought that the mishap probably occurred after the sponge count was completed. He further opined that two sponge counts were the usual standard, and that Yusuf should have called for a second count. He also testified that the standard called for surgeon diligence to ensure that all sponges had been removed from the wound.
Yusuf’s expert countered that things had been done correctly as the surgeon has to rely on the circulating nurse to keep track of the sponge count. Also, the expert said that hospitals develop policies for doing sponge counts, in accordance with guidelines from the Joint Commission of Accreditation of Hospitals and the California Nursing Association. Thus, if a surgeon sees no foreign bodies in the wound, and the sponge count is reported to be correct, the surgeon has met the standard of care.
Yusuf agreed with his expert that sponge counts and related logistics were controlled by the hospital and its nursing staff, and not by him. The nurses decided how many sponges to open when the case began, and how many to open as the surgery progressed. The number and timing of sponge counts was a nursing and hospital function. Yusuf acknowledged his duty to look at the wound before closing to make sure nothing was left behind and to ask for a sponge count. Those steps had been taken in this case.
At the conclusion of testimony, the patient asked for jury instructions on a number of points. One instruction was res ipsa loquitur, a doctrine that allows jurors to infer negligence from the egregious circumstances, even absent proof. The patient also asked the jury be instructed about the non-delegable duty of the surgeon and the captain of the ship doctrine. These instructions would have made it easier for the patient to win at trial. But, the trial court denied these instructions, and the jury ultimately found that Yusuf was not negligent. The patient appealed the verdict, challenging judicial error related to improper jury instruction.
Lawrence H. Brenner
Appellate decision
The California Court of Appeals examined the case in light of a previous 1936 ruling in a similar case where a retained sponge during gall bladder surgery had led to a peritoneal infection (Ales v. Ryan, 8 Cal.2d 1936). There, the California Supreme Court had said that “…the operation was performed under the immediate supervision and direction of the defendant and he is chargeable with notice of what was taking place about him which includes the important duty of observing whether a record of the number of sponges which are placed in the abdomen is being kept, and the responsibility of seeing that all sponges are removed before the incision is closed is upon him…this duty cannot be delegated...”
The court noted that the captain of the ship doctrine imposes liability on a surgeon for the acts of those under the surgeon’s special supervision and control during the operation. In addressing this doctrine, the court invoked yet another legal case where a sponge was left behind after laparotomy for a C-section (Armstrong v. Wallace, 8 Cal.App.2d 429, 1935). The Armstrong court had said that “The surgeon had the power and, therefore, the duty to direct the nurse to count the sponges as part of his work in the opening and closing of plaintiff’s abdomen and the putting in and taking out of sponges, and it was his responsibility to see that such work was done. He cannot relieve himself of liability by any custom or rule requiring the nurses to count the sponges used and removed.” A year later, in 1936, the captain of the ship doctrine invoked by the Armstrong court had been adopted by the California Supreme Court in Ales, above.
To rebut, Yusuf cited another legal case with a retained sponge, i.e., Truhitte v. French Hospital (128 Cal.App.3d 332, 1982). A sponge left in the abdomen during surgery went undiscovered for 2 years, after which serious complications ensued. The Truhitte court had rejected the captain of the ship doctrine as an old theory, developed to allow patient recovery for injuries at a time when hospitals could always escape liability because of charitable immunity. Times had changed, and the court said: “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. Today’s hospitals hire, fire, train and provide day-to-day supervision of their nurse-employees.”
The court rejected the reasoning ofTruhitte, stating instead that “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.” The one dissenting judge saw no such special relationship, and opined that the captain of the ship doctrine should not apply and that “it was the hospital and not Yusuf who had direct control over hiring, training, paying, and firing of nurses … Yusuf did not have control or supervision over how the nurses performed their sponge count duties, and at most worked side by side in performing the surgery with the nursing staff for the relatively brief period of one and one-half hours.”
Practical impact
If a plaintiff can successfully invoke the captain of the ship doctrine, in a situation where the surgeon simply has the authority to order a nurse to perform a procedure, then the surgeon, rather than the hospital, can be held liable for negligence. Practically, this means hospitals will be less likely to settle cases involving negligence allegations against their hired employees since the responsibility could be shifted to the surgeon.
The Truhitte decision, along with other similar rulings had eroded the captain of the ship doctrine set forth by the Armstrong court in 1935, and adopted by the California Supreme Court a year later in the Ales ruling. The significance of the Fields v. Yusuf decision is that the court reinvigorated the doctrine, basing its logic mainly on the vulnerability of the patient, and the special, traditional relationship between the patient and the surgeon, recognizing the authority and control of the surgeon over OR staff.
As more duties are delegated to the team-approach of modern medicine, and increasingly, as surgeons must standby along with other staff in the OR while certain routines, such as the timeout procedure are called out and agreed upon by all parties (nurse, circulator, anesthetist, surgeon and assistant), the captain of the ship doctrine may be in for some rough sailing in the near future.
For more information:
B. Sonny Bal, MD, JD, MBA; and Lawrence H. Brenner, JD, are partners in the law firm of BalBrenner/Orthopedic Law Center and are the exclusive providers of loss prevention, risk management and quality improvement services for the Orthopedic Physician’s Insurance Company. Brenner can be reached at lbrenner@balbrenner.com.
Disclosures: Bal and Brenner have no relevant financial disclosures.