By Dr Henry Lerm
Picture the typical set-up in an operating theatre in the eighteenth century. There, he was, the lone medical man, scalpel in hand, hunched over the patient in a dark, stuffy room with a nurse on his side. In all likelihood, she would have been in his employ and the doctor was responsible for her conduct, thus legally liable. In contrast, today, you will find a fully ventilated operating room, with lights brighter than those at a sports stadium. Gathered around the table you will observe a multidisciplinary team comprising of a head surgeon, the assistant surgeon, anaesthetist, theatre nurse and the scrub nurse. On closer look, you will notice that they are all going about their task independently and with great urgency under the watchful eye of the head surgeon. Like a captain in command of a ship, he gives instructions and all seem to respond to his commands. He directs the course of the procedure, and takes critical decisions, while the operating team looks to him for guidance.
Ironically, in this private hospital set-up, none of the team, save for the assistant surgeon, is employed by the head surgeon. They are all in private practice and the nurses are employed by the hospital where the head surgeon hires the theatre. If then, it can be deduced that the head surgeon is in charge of the operating theatre, does it necessarily follow that the head surgeon as a captain of a ship, is legally responsible for the actions of those under his guidance, especially where something goes wrong and the patient suffers damages?
From the role that the head surgeon plays in theatre, many observers, including lawyers, will assume that the head surgeon legally, takes responsibility for the individual’s, even the team’s mistakes. This article investigates whether the so-called ‘captain of the ship’ doctrine forms part of our law. An answer to that is of paramount importance in medical malpractice litigation. Identifying the correct party(ies) will result in the correct defendant(s) being sued. A misjoinder can be financially very costly to a client and add to the woes of the attorney making that decision.
Background
The idea that a surgeon was responsible for everything that happened in the operation theatre – just as the captain of the ship was responsible for everything that happened on the ship – had its origin in the United States (US). The genesis for recognising the concept, emerged from the surgeon’s education and the leading role he played in making decisions and assuming responsibility in theatre. That, gave rise to the metaphor ‘captain of the ship’. The welfare of the patient was also premium. So, the surgeon became morally and legally responsible for mishaps during surgery and treatment. (Søren Holm ‘Final responsibility for treatment choice: the proper role of medical doctors?’ (2011) 14 Health Expectations 201 (http://onlinelibrary.wiley.com, accessed 4-5-2017)).
The ‘captain of the ship’ idea, was also influenced by the fact that hospitals, traditionally, had immunity from malpractice claims in that they could not be sued by virtue of the fact that they were established through charitable trust funds. That applied to members of the surgical team directly employed by the hospital, as well. (John Grassman ‘The Doctrine of Charitable Immunity and its Impact on Medical Malpractice Litigation in the United States’ (2014) 5 JCCC Honors Journal (http://scholarspace.jccc.edu, accessed 4-5-2017)).
The legal position in the US
The fiction ‘captain of the ship’ was recognised in the state of Pennsylvania for the first time, when their Court of Appeals imputed liability to the physician for the act of an assistant under his control, but not directly employed by him (McConnell v Williams, 361 Pa 355, 65 A.2d 243 (1949)). In this case, an obstetrician in control of the delivery, had selected an intern to assist him. The obstetrician was in private practice, visiting the hospital, whereas, the intern was employed there. After the delivery, the obstetrician assigned the care of the baby over to the intern. The latter applied too much silver nitrate into the infant’s eyes, without sufficient irrigation. That resulted in the child losing sight in his right eye. There was no evidence that the obstetrician was negligent in any way. The only question was whether the surgeon was responsible for the negligence of the intern? The court a quo found that, as the obstetrician did not employ the intern, he could not be held liable for the action of the intern, who was found to be negligent.
The Court of Appeal reversed the decision, finding that the obstetrician could be held liable, though, the damage was not directly caused by him. It was also found that until the surgeon leaves the operating theatre, he, like the captain of a ship, is in complete charge of those present and assisting him. Relying on the principle of agency, the court found there was a temporary relationship between the obstetrician and the intern akin to that of master and servant. Consequently, legal liability could be imputed to him for the harm caused by any negligence on the part of the intern. The visiting surgeon thus became the ‘borrowed servant’ and his liability was analogous to the ‘captain of the ship’ parallel (Sybrand Strauss Doctor, Patient and the Law 2ed (Van Schaik 1984) at 346).
The decision was followed for a number of decades in the US until Franklin v Gupta 81 Md. App 345, 567 A.2d 524 (1990) when the Court of Special Appeals of Maryland, after re-assessing the doctrine of ‘the captain of the ship’, found, inter alia, that there was no sound reason in law, why legal liability should as a general rule, be imputed to a physician or surgeon, just because he has a special skill and finds himself in the same operating theatre, regardless of him not employing the nurses or interns present. The court also found that there was no reason to extend the vicarious liability of a surgeon for the negligence of hospital employees simply to create a fund for victims of malpractice.
The United Kingdom’s (UK’s) position
The UK’s position with regard to the liability of hospitals in early years appeared to be the following: Because hospitals were charitable institutions for the sick and needy, all medical staff employed by the hospital, as well as those medical practitioners who visited and treated patients without payment, were immune to civil liability. The rationale was to protect the funds made available for patients to be treated in hospitals (Feoffees of Heriot’s Hospital v Ross 12 CI 8F 507, 8 Eng Rep 1508 (HL1846)).
But, when hospitals became national institutions, a new approach to the imputation of liability of hospitals emerged. That started with the case of Gold v Essex County Council [1942] 2 KD 293, wherein the court held that a hospital authority was liable to a patient on account of a radiographer who was in full-time employ of the hospital (Strauss (op cit) at 344). In a succeeding English decision of Cassidy v Minister of Health (Fahrni, Third Party) [1951] 1 All ER 574, the court emphasised the fact that any nurse, resident medical officer, intern, part-time anaesthetist or doctor in full-time employ of a hospital, will cause the hospital liability if they were negligent. But, the same could not be said about a visiting or consulting doctor. Here, the court found, there was no master and servant relationship, as can be found in a ship’s master and the crew members’ association.
Although UK courts have occasionally compared the position of a surgeon in relation to the instructions he gives to the other members of his team in theatre, as that akin to ‘a captain who navigates a ship’, the doctrine of ‘the captain of the ship’ has never received fully-fledged recognition by the British courts.
The legal position in South Africa (SA)
South African courts, following the decisions of older UK authorities, at first decided that the hospital authorities could not be held liable for the negligent conduct of, especially the nursing staff (Hartl v Pretoria Hospital Committee 1915 TPD 336; Byrne v East London Hospital Board 1926 EDL 128 at 142 and 158; Lower Umfolozi District War Memorial Hospital v Lowe 1937 NPD 31).
But that position changed in later years when the courts started applying the doctrine of vicarious liability to impute liability to hospital authorities for the unskillful professional acts or omissions of doctors in the service of hospitals (Esterhuizen v Administrator, Transvaal 1957 (3) SA 710 (T); Dube v Administrator, Transvaal 1963 (4) SA 260 (W).
In SA, for a surgeon to incur liability for the conduct of another in theatre, there has to be a relationship of employment, namely, a master-servant relationship, wherein, the surgeon (master) is usually capable of exercising control over say, an assistant surgeon in his employ (servant) (see Van Wyk v Lewis 1924 AD 438 at 458; RG McKerron Law of Delict 7ed (Cape Town: Juta 1971) at 91, repeated in Pieter Carstens and Debbie Pearmain Foundational Principles of South African Medical Law (Durban: LexisNexis 2007) at 548; and Strauss (op cit)). Insofar as the application of the ‘captain of the ship’ doctrine in SA is concerned, the principle was recognised in the Hartl case albeit for only a fleeting moment. The doctrine was, however, rejected in 1924 in the Van Wyk matter. Here, the Appellate Division refused to accept the contention that the visiting surgeon in private practice, was legally liable for the negligent conduct of a nurse who was employed by the hospital where he was operating. The court found, although a nurse is generally under the control of a surgeon when he performs an operation, she remains an independent assistant of the surgeon. Their relationship was not that of a master and servant, for she is from an allied profession and performs her own duties. Unlike a master who is responsible for the acts of his servant, the surgeon is not responsible for her conduct before or after the operation. Nor was any relationship of employment shown (Van Wyk (op cit) at p 458 – 459).
The principle that vicarious liability does not apply to the so-called ‘independent contractor’ who undertakes a specific job and acts with his own judgment in carrying out a procedure, thus seems to be firmly entrenched (Strauss (op cit) at 343 and 346; MA Dada and DJ McQuoid-Mason Introduction to Medico-legal Practice (Durban: LexisNexis 2001) at 24 – 25). In this regard, the case of S v Kramer and Another 1987 (1) SA 887 (W) at 895 is also very instructive.
The principle established by our courts and legal writers amount to this: All those in a multidisciplinary team in theatre, are all independent agents. From the nurse to the anaesthetist to the other specialists present, they are all their own masters and act as independent contractors. They are as a general rule, not liable for the other’s negligence. There is, therefore, generally no duty on one to check that the others had correctly acted. It should, however, be borne in mind, where the nurse is a member of the staff of the hospital ie, occupies a stable and permanent position, the nurse is a servant of the hospital authority. The hospital, by virtue of its relationship with the nurse, will in law, assume delictual liability for the acts of professional negligence committed by that servant, provided, the latter acts within the course and scope of his or her employment. Under those circumstances the hospital can be sued based on the principle of vicarious liability.
Although a physician is generally not liable for the negligent actions of hospital employees and staff who are not employed by the physician, there may be instances where liability may be imputed, for example, the surgeon discovers a non-employee’s negligence during the course of surgery or ordinary care and fails to act to prevent the ill effects. His failure to act, may become the surgeon’s own negligence (The Medical Law Society of the Commonwealth of Nations The Medical Malpractice Compendium (www.medicallawsociety.co.za, accessed 15-5-2017).
Conclusion
Most of the functionaries who make up the team, headed by the head surgeon, are not employed by him or her. Save for the nurses who may be employed by the private hospital where the operation takes place, all the others are independent contractors, who each have their own independent duties. Teamwork, however, remains an integral part of their mission to provide client care. Although the head surgeon like a captain on a ship, may direct the proceedings in the theatre and make critical decisions, there is no master and servant relationship. Save for the exception highlighted in the text, they are generally not liable for the other’s negligence. The ‘captain of the ship’ doctrine, is therefore, not recognised in SA.
Dr Henry Lerm BProc LLB LLM (NMMU) LLD (UP) is an attorney at Legal Aid South Africa in Uitenhage.
This article was first published in De Rebus in 2017 (June) DR 38.
