CACI 510 Derivative Liability of Surgeon

New September 2003; Revised April 2007, May 2020

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Give this instruction in a case in which the plaintiff seeks to hold a surgeon vicariously responsible under the “captain-of-the-ship” doctrine for the negligence of nurses or other hospital employees that occurs during the course of an operation. There is some disagreement in the courts regarding whether the captain-of-the-ship doctrine remains a viable rule of law. (Compare Truhitte v. French Hospital (1982) 128 Cal.App.3d 332, 348 [180 Cal.Rptr. 152] (doctrine has been eroded) with Baumgardner v. Yusuf (2006) 144 Cal.App.4th 1381, 1397–1398 [51 Cal.Rptr.3d 277] (doctrine remains viable).)

•The “captain of the ship” doctrine imposes liability on a surgeon under the doctrine of respondeat superior for the acts of those under the surgeon’s special supervision and control during the operation. (Thomas v. Intermedics Orthopedics, Inc. (1996) 47 Cal.App.4th 957, 967 [55 Cal.Rptr.2d 197].)

•“The doctrine has been explained as follows: ‘A physician generally is not liable for the negligence of hospital or other nurses, attendants, or internes, who are not his employees, particularly where he has no knowledge thereof or no connection therewith. On the other hand, a physician is liable for the negligence of hospital or other nurses, attendants, or internes, who are not his employees, where such negligence is discoverable by him in the exercise of ordinary care, he is negligent in permitting them to attend the patient, or the negligent acts were performed under conditions where, in the exercise of ordinary care, he could have or should have been able to prevent their injurious effects and did not. [¶] The mere fact that a physician or surgeon gives instructions to a hospital employee does not render the physician or surgeon liable for negligence of the hospital employee in carrying out the instructions. Similarly, the mere right of a physician to supervise a hospital employee is not sufficient to render the physician liable for the negligence of such employee. On the other hand, if the physician has the right to exercise control over the work to be done by the hospital employee and the manner of its performance, or an employee of a hospital is temporarily detached in whole or in part from the hospital’s general control so as to become the temporary servant of the physician he assists, the physician will be subject to liability for the employee’s negligence. [¶] Thus, where a hospital employee, although not in the regular employ of an operating surgeon, is under his special supervision and control during the operation, the relationship of master and servant exists, and the surgeon is liable, under the doctrine of respondeat superior, for the employee’s negligence.’ ” (Thomas, supra, 47 Cal.App.4th at pp. 966–967, original italics.)

•This doctrine applies only to medical personnel who are actively participating in the surgical procedure. (Thomas, supra, 47 Cal.App.4th at pp. 966–967.)

•While the “captain of the ship” doctrine has never been expressly rejected, it has been eroded by modern courts. “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.” (Truhitte, supra, 128 Cal.App.3d at p. 348, original italics.)

•“[T]he Truhitte court ignores what we have already recognized as the special relationship between a vulnerable hospital patient and the surgeon operating on the patient. 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. Moreover, in light of the Supreme Court’s expressions of approval of the doctrine … , we feel compelled to adhere to the doctrine.” (Baumgardner, supra, 144 Cal.App.4th at pp. 1397–1398, internal citations omitted.)

•Absent evidence of right to control, an operating surgeon is generally not responsible for the conduct of anesthesiologists or others who independently carry out their duties. (Seneris v. Haas (1955) 45 Cal.2d 811, 828 [291 P.2d 915]; Marvulli v. Elshire (1972) 27 Cal.App.3d 180, 187 [103 Cal.Rptr. 461].)