“Captain of the Ship” Still Floats

With non-physician health care professionals gaining more responsibilities in their own right, the doctrine of “Captain of the Ship” may not always apply to hold surgeons liable for everything. It would be wrong, however, to conclude that a judge or arbitrator will never find a way to give the old Captain his due.

A 69-year-old patient was scheduled for a hysterectomy and a “sling” procedure for an incompetent urethra. The hysterectomy was performed by a gynecologist, who then turned the anesthetized patient over to Dr. US, a urological surgeon, for the pubo-vaginal sling.

As the hysterectomy finished up and Dr. US took over, he asked the circulating nurse for a “1 percent xylocaine with epinephrine mixed with an equal portion of saline solution.” Dr. US expected that he would receive a syringe containing a standard pre-mixed solution of xylocaine and epinephrine, which would then be blended with an equal part of saline. The nurse obtained a bottle of 1% xylocaine, a multi-dose bottle of 1 to 1000 epinephrine, and a bag of normal saline. (The pre-mixed solution contained 1 to 100,00 epinephrine.)

The circulating nurse brought the three solutions and mixed them in the presence of the scrub nurse. The circulating nurse then presented the syringe to Dr. US, who injected the patient in order to reduce bleeding and separate tissue planes. Within 20 minutes, the patient went into cardiac arrest. She was resuscitated, but went into a coma for several hours, and was on a respirator for several days. The sling procedure could not be completed.

In a suit by the patient, the hospital settled out for a substantial amount of the patient’s non-economic damages. The patient nevertheless insisted on taking Dr. US to arbitration.

In an award for the patient against Dr. US, the neutral arbitrator found that there was no question that the potentially fatal dose of epinephrine was the result of the nurse’s misunderstanding of Dr. US’s order. But instead of focusing on whether Dr. US was himself unclear in his order (and thus directly negligent) the arbitrator found that the surgeon was legally liable for the nurse’s own error. The arbitrator made Dr. US the nurse’s “superior” in applying the legal concept of respondeat superior, from which “Captain of the Ship“ derives.

In so doing, the arbitrator quoted jury instruction, (a non-statutory summary of California law), which states:

Regardless of who employs or pays a nurse who takes part in the performance of surgery or services incidental to such surgery, if, while engaged in any such service, the nurse is under the direction or control of a certain surgeon in charge, so as to be the surgeon’s temporary servant or agent, any negligence on the part of any such assisting person is the negligence of such surgeon.

To apply the “Captain of the Ship“ doctrine here, the arbitrator had to show that the circulating nurse’s mixing of the solution was within the direct purview of the surgeon.

The arbitrator noted that one should not expect a surgeon to inspect everything that is placed in front of him or her for use in surgery. “But when it comes to something that the surgeon orders to be done in his presence, he or she in fact can see to it that it is done properly.” The arbitrator then alluded to the testimony of an expert witness, who stated that when he is not familiar with the nurse working the surgery, he will routinely require the nurse to show him the medication in the bottle before it is loaded in the syringe.

Unfortunately, application of operating-room respondeat superior on a case-by-case basis fails to provide surgeons with a bright-line test of when they will be held liable for a nurse’s negligence. Cases such as this, however, show that the storied “Captain of the Ship” still has his sea legs.

Gordon Ownby, CAP-MPT’s general counsel, can be reached at gownby@cap-mpt.com.