The term “captain of the ship” is one of the most misunderstood in medical malpractice law.

Most doctors think it means that merely because of their “rank” as the surgeon or obstetrician that the surgeon or obstetrician is personally liable for everything that goes on during the procedure.

What it actually refers to, though, is a situation in which the operating doctor becomes responsible for the negligent acts of operating room (OR) or delivery room (DR) staff who are not their own employees when they are in the position to discover and prevent such negligence through their own ordinary care.

The prevention aspect is the linchpin.

“Captaincy” rests on the operating doctor’s ability to actually exercise real-life control over the work being done by a hospital employee in a way that is significant enough to temporarily detach that employee from the hospital’s control and instead make them the “borrowed servant” of the doctor. Vicarious liability can then attach to the operating doctor for the hospital employee just as it would if they had brought in their own staff member from their personal office.

The 1949 Pennsylvania case that the term “captain of the ship” actually comes from, McConnell v. Williams, demonstrates that approach.

“Captain of the Ship” Origins
A newborn was damaged by an intern who was basically penniless, and back then, hospitals were shielded by charity laws, so there was no way to reach the facility that employed the intern.  Frankly, there were just no pockets available.

However, the obstetrician testified that he had complete control of the room and everyone in it and that the intern was bound to carry out his orders. The court therefore found that for that period, the obstetrician had become the “master” of the intern and so was vicariously responsible for what that intern did.

The court wrote 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 in 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…”

“Captaincy” is therefore nothing like the common belief that the operating doctor’s mere presence is enough. The actual issue is the capacity to control the events, and that is a fairly high standard to meet.

Just giving instructions to a staff member or having the right to supervise them does not create liability for the operating doctor. Therefore, asking for an instrument from a nurse, telling a tech to start a line, or having an orderly run a biopsy sample to the path lab does not make the operating doctor a “captain” because those tasks are what the hospital already has the employee there to do. They do not require the doctor stepping in such that it makes that staff member more their employee than the hospital’s.

This is a very important distinction from vicarious liability under respondeat superior. Under that doctrine, the employment relationship alone underpins the imputed liability, but under “captain of the ship,” there must be a present hands-on aspect that produces a shift to actual control.

That is why, if this is alleged against you, you will, unlike the obstetrician in McConnell who was strutting to the court about how important he was, try to distinguish your role from this. Whether or not that role will be found will then depend on the facts of the individual case, including hospital policies and by-laws, the terms of your privileges agreement, OR / DR protocols for employees, and what actually was said and done in the room where it happened.

This all having been said, classic “captain of the ship” is largely a zombie doctrine now. The facts for which it was created—hospitals that were immune from suit over what their employees did, operating doctors having absolute control—are long gone. Claiming a “borrowed servant” is rarely going to fit modern facts.

Instead, courts in the many jurisdictions that have either reduced or rejected the doctrine as such are looking to the fact that operating doctors are under non-delegable duties to their uniquely vulnerable patients and so are finding that evidence that they could have personally intervened to correct conduct by members of the OR or DR team can be considered by the jury.

To see how that plays out, let’s look at a 2006 California case, Fields v. Yusuf.

A More Modern Shift From McConnell
A surgeon conducted a lower extremity arterial bypass graft. Two sponge counts were done at the end of the procedure and both were correct. The next day, the surgeon performed a second procedure. This time, only one count was done, and the surgeon was informed that it was correct. The nursing staff did not spontaneously do another count, and the surgeon did not instruct them to do so. However, that one count was actually not correct, and a sponge had been left in. Subsequent complications resulted in the plaintiff requiring an amputation.

The hospital settled, and the case proceeded to trial against the surgeon. The jury found for the surgeon, and the plaintiff appealed. The appellate court relied on expert testimony that the doctor and the OR nurses shared a joint responsibility for ensuring a correct sponge count and determined that the jury should have been charged on the “captain of the ship” doctrine. The appellate court first found that “the surgeon’s duty to remove all sponges and other foreign objects from the patient’s body is nondelegable” because of the “special relationship” that exists between the patient, who is particularly vulnerable because they are unconscious and under the total control of the operating team and the surgeon during an operation. This was still fully consistent with how the court saw the vulnerability of patients in McConnell.

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However, there was a more modern shift from McConnell in the rest of the court’s reasoning.

It held that although the nursing staff had protocols for doing sponge counts, the surgeon could not delegate to the nurses his duty to adequately verify that there were no sponges still in his patient. He was responsible for ensuring that the nurses did the count in a way that was adequate to enable him to discharge his own duty to the patient to remove all sponges before closing.

It was an approach that was still related to the McConnell court seeing the operating doctor as a captain who needed to be fully in charge to protect his ship and passengers, but it no longer had an underpinning of the operating doctor as an overweening presence to whom all must answer but instead as a responsible one who must satisfy his own obligations.

The court held that “the question to be answered by the jury [on retrial] is not whether Dr. Yusuf had control over how the sponge count was conducted, but whether he had the authority to order the sponge count to be made under his supervision during the operation.”

In other words, if the surgeon could be proven to have had the ability, should he have wished to exercise it, to detach the nursing staff from the control of the hospital’s protocols and to instead instruct them to do the counts as he wanted them done, then the jury could find that he had liability when the nurses failed to check the first count by doing a second count and he did not step in to make them do that additional one. The failure to be a “captain” when the doctor needed to be one, and actually could be one, would then be the predicate for his liability.

Rather than imagining that we still live in 1949 and that surgeons are still absolute monarchs of the OR, the court essentially shifted from the hierarchy issue of “captaincy” to its fiduciary aspect. In order to carry out their own non-delegable duties to patients, operating doctors need reliable information and conduct from other members of the team, and so they are therefore responsible for doing what they can do, including telling a hospital employee to do more than a basic hospital requirement, to make sure that such information and conduct is actually reliable.

Of course, the critical point there is that the doctor must have the actual ability to exert that control.

Anesthesiologist/Anesthetist Negligence
This is an important limitation and it is why the operating doctor cannot be held liable for the negligence of the anesthesiologist or anesthetist, who is deemed to be an entirely independent specialist.

Anesthesia mishaps are, however, the most common reason why doctors are confused about “captain of the ship.” Let’s take short detour to look at why this is.

If there is such a mishap, the plaintiff will generally sue all present in the OR or DR because discovery is needed to vet out the more discrete facts but defendants cannot be added later. The operating doctor will then likely attempt to get summary judgment, letting them out of the case because, as a matter of law, a case cannot be maintained against them. However, they will often lose that motion and then attribute that to being blamed under “captain of the ship” for what the anesthesiologist or anesthetist did. However, they are actually being kept in the case because of an allegation that they themselves were also negligent, such as by failing to notice that the patient was not getting enough oxygen, an allegation that still needs to be investigated.

“Captain of the ship” itself will only apply in the anesthesia mishap setting if the operating doctor was giving orders to the anesthesiologist or anesthetist that they had to follow, which is a very unlikely scenario.

The Takeaway
Returning to our general discussion, it should also be clearly understood that a finding that the operating doctor was liable for failing as a “captain” does not exonerate others on the OR or DR team for their own negligence. They remain liable for what they did or failed to do under their own obligations to the patient and cannot claim “The doctor should have told me to do more” as a defense.

So, in an area of law that is evolving, what is the takeaway?

“Captain of the ship” may have been developed as a way to reach a defendant who could compensate a plaintiff and may have been draped in a Horatio Hornblower image, but it was always grounded in the core issue of a doctor being responsible to do what is needed for their patient if they can.

We know this as “being reasonable under the circumstances.”

If an operating doctor has the ability to give orders to influence staff conduct or to get more information from staff, and that conduct or information is needed for safe patient care, then it is reasonable to expect that the doctor will give those orders and fair to hold them liable if they do not do so.

“Captain of the ship” as a named doctrine is only applied to operating doctors, but this general principle applies to all doctors.

Therefore, whether or not you are in a jurisdiction that still applies “captain of the ship” or even if you do not do procedures, you must remember that you will still be expected to be “the last clear chance” to avert an error by the staff if you actually have the power to do so.