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,” the surgeon or obstetrician is personally liable for everything that occurs during a procedure. It actually refers to 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.
“Captaincy” rests on the operating doctor’s ability to 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 case from which the term originates, McConnell v. Williams, demonstrates that approach. A newborn was damaged by an intern, and back then, hospitals were shielded by charity laws, so there was no way to reach the facility that employed the intern. No pockets were 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 found that for that period, the obstetrician had become the “master” of the intern and so was vicariously responsible for what that intern did.
“Captaincy” is not like the common belief that the operating doctor’s mere presence is enough. The issue is the capacity to control the events. Just giving instructions to a staff member or having the right to supervise them does not create liability for the operating doctor. This is an 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.
This all having been said, classic “captain of the ship” is largely a zombie doctrine now. 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 team can be considered by the jury
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