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Captain-of-the-Ship Doctrine is a principle of medical-malpractice law, holding a

surgeon liable for the actions of assistants who are under the surgeon's control
but who are employees of the hospital, not the surgeon. The surgeon as "the
captain of the ship," is directly responsible for an alleged error or act of alleged
negligence because he or she controls and directs the actions of those in
assistance. This common law doctrine is often used in operating room situations.

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.”


 Historically, the Captain of the Ship doctrine imputes liability to the surgeon who
has the authority and right to control the actions of his assistants in the operating
room.
 Pennsylvania famously saw the use of the phrase in a 1949 case: “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.”1

 Wavebreakmedia Ltd/Thinkstock

 The case dealt with an assistant intern’s negligent application of silver nitrate into
the eyes of a newborn, causing blindness. The court held that the intern’s actions,
if subjected to the control of the obstetrician, would be construed as a borrowed
employee, making the master, i.e., the obstetrician, vicariously liable.
 Public hospitals in the 1940s were immune from liability because they were
charitable organizations, so the Captain of the Ship doctrine emerged as a means
for injured patients to recover damages against the surgeon instead. Courts have
used various legal theories to justify this doctrine, which is basically grounded in
vicarious liability, e.g., master-servant relationship (respondeat superior),
borrowed servant, a nondelegable duty, or more broadly, principles of agency.
 Use of the doctrine to shift liability to the surgeon in the operating room is well
exemplified in litigation over retained sponges, left-behind instruments, burns in
the operating room, administration of the wrong blood type, and allergic reaction
to penicillin. Actual control of the surgeon’s assistants is not essential, but the
right to merely supervise is insufficient. What is dispositive is the right and
authority to determine an assistant’s actions.
 However, what constitutes an “operating room” has been in dispute. It may
simply mean a circumscribed and controlled area for medical procedures and/or
treatment. Thus, the term has been extended to a room where only local
anesthesia was used for esophageal dilation. Reasoning by analogy, the modern-
day heart catheterization lab or interventional radiology suite would arguably
count as “operating rooms” where the procedurist-doctor, usually a nonsurgeon,
may be deemed to function as the captain of the ship.
 Another place where a nonsurgeon may be involved is the hospital ED. It has
been stated that emergency physicians have been held liable for adverse
outcomes resulting from the patients under triage, based on the Captain of the
Ship doctrine.2 Once a patient arrives in the ED, a legal duty to provide care
arises, even if the physician has yet to see the patient. The federal Emergency
Medical Treatment and Labor Act, which regulates much of what happens in the
nation’s emergency departments, covers “any individual ... [who] comes to the
emergency department and a request is made on the individual’s behalf for
examination or treatment for a medical condition.”
 Still, the doctrine is less likely to be invoked in a more spread-out area such as a
general medical ward, where a physician’s control cannot be reasonably expected.
 For example, courts have held that ward nurses giving injections into the buttock
causing permanent neuropathy to a patient’s leg were not the agents of the
prescribing physician, but just of the hospital employing them. The doctrine also
was rejected in Collins v. Hand by the Pennsylvania Supreme Court, which
reversed a judgment against a psychiatrist defendant.3 In the Collins case,
notwithstanding the fact that the psychiatrist, Dr. Hand, had personally arranged
for the patient’s transfer to another hospital and wrote orders for
electroconvulsive therapy (which was complicated by fractures), Dr. Hand did not
choose the doctor who was to administer the therapy, nor did he hire,
compensate, or control any of the team members.
 In the 1960s, hospitals began losing their charitable immunity status and
assumed direct as well as vicarious liability for injuries to patients from the
negligent acts of their employees, such as nurses. The key policy reason for
having the Captain of the Ship doctrine then no longer existed. Besides, operating
rooms became increasingly complex, and the senior surgeon was thought to be
incapable of being in charge of all activities there.


 Dr. S.Y. Tan
 Accordingly, many courts in jurisdictions such as Oregon, Texas, and Wisconsin
began to abandon the use of the doctrine. Terms such as anachronistic, prostrate,
and “false special rule of agency” were used to describe their disfavor.4
 Wisconsin is typical: A retained sponge following a laparoscopic cholecystectomy
led to complications, and the patient sued the hospital and surgeon, claiming
each was responsible for the nurses’ sponge-count error. The lower court had
found that “as a matter of law [the surgeon] is in fact responsible and liable for
the actions of the parties that were in the operating room with him and working
under his supervision ... [the] doctor is the captain of the ship. That doctor is
responsible for everything.”
 Upon appeal, the Wisconsin Supreme Court reversed the decision of the lower
court by rejecting the doctrine altogether, finding that it failed to reflect the
emergence of hospitals as modern health care facilities.5
 Still, the doctrine is by no means obsolete. In a Colorado case, the court wrote
that, even if the nurse were an employee of the hospital and her negligence
caused the death of plaintiff’s husband, the Captain of the Ship doctrine would
preclude recovery against the hospital.6 It relied on a precedent-setting case that
held that once the operating surgeon assumed control in the operating room, the
surgeon is liable for the negligence of all persons working there.
 Likewise, California has recently breathed new life into the doctrine. 7 A case in
2006 involved a patient who underwent arterial bypass surgery in his right leg. A
case in which a nurse’s counting error led to a retained sponge ended up with the
patient losing his leg. The surgeon initially escaped liability by virtue of the
court’s refusal to include Captain of the Ship instructions to the jury, which found
the doctor not negligent. The state court of appeals reversed, however,
concluding that it was reasonably probable that the jury might have reached a
different result had it been so instructed.