| Progress Notes | July 2007, Volume 2, Issue 3 |
California Resurrects the Captain-of-the-Ship Doctrine
The case of Fields v. Yusuf, 144 Cal. App. 4th 1381 (2007), arises out of a surgical procedure in which the surgeon relied on a nurse’s report that the single sponge count was correct. Unfortunately, a retained sponge led to vascular compromise and loss of the patient’s remaining leg. The case was tried against the surgeon, and a defense verdict was returned.
The plaintiff appealed, and the Second Appellate District reversed the decision. The court of appeals found prejudicial error in the trial court’s failure to instruct the jury that the surgeon had a nondelegable duty to remove foreign objects used during surgery from the patient’s body. Moreover, the court of appeals also found reversible error in the trial court's failure to instruct the jury on the theory of res ipsa loquitur. (Translated as “the thing speaks for itself,” res ipsa loquitur presumes that the physician was negligent because he had exclusive control of the operating room.)
The court relied on Ales v. Ryan, 8 Cal. 2nd 82 (1936), a 70-year-old decision, in reviving the captain-of-the-ship doctrine. The standard articulated in Fields v. Yusuf effectively creates strict liability for surgeons for the acts of others within the confines of a surgical theater. How expansively that duty will be applied remains to be seen. It is clear that the surgeon will be held responsible for errors by the nursing staff incident to the surgery itself (such as improper sponge and device counts). It is not as clear, however, that the surgeon’s nondelegable duty will reach to others associated with the surgery (such as anesthesiologists).
Animated Technology Prevails in Court
This Virginia case involved treatment by our obstetric group of a 22-year-old patient who received prenatal care and was admitted in active labor at 36 weeks. She had previously delivered an eight-pound, 10-ounce, baby and had a history of gestational diabetes, above-average weight gain, and pregnancy-induced hypertension. During this vaginal delivery, the physician encountered shoulder dystocia and responded with appropriate measures in order to dislodge the anterior shoulder, resulting in the delivery of an eight-pound, four-ounce baby. A fractured right humerus and bilateral brachial plexus injuries were noted at birth.
The plaintiff alleged that the defendants had failed to appreciate the risks for shoulder dystocia and breached the standard of care by not performing a C-section and by applying excessive traction during delivery. The case was defended on the theories that a vaginal delivery was indicated and that the injuries occurred from the maternal forces of labor. As part of our aggressive claims defense, we employed a legal graphics company to create a 3D animation for trial. We used this cutting-edge technology to illustrate how the injuries could have occurred absent negligence. The animation, which depicted the maternal expulsive forces, proved effective in helping the jury to understand a complex procedure. The jury returned a unanimous defense verdict.
MWRO’s Successful Year
Our Midwest Regional Claims Office located in Cleveland, Ohio, is off to a successful start this year. The office has taken 21 cases to verdict and has returned 20 defense verdicts for our members. These cases have been tried in states from Pennsylvania and West Virginia, across the region to Missouri.
Rx for Patient Safety: Treating Culturally Diverse Patients
In our January 2007 issue, we emphasized the importance of effective communication in helping establish an effective physician-patient relationship with your patient population. In this issue, we’ll focus more closely on the special needs of treating culturally diverse patients.
In treating multicultural and minority populations, it is essential that written and verbal communications from you and your office staff are provided to each limited English proficiency (LEP) patient in the patient’s language and at a literacy level the patient understands.
It is your responsibility to have a process in place that includes: (1) an assessment of the language barriers of the patient population you serve; (2) a determination of what services are needed to assure effective communication; and (3) a plan for obtaining interpretive services.
You cannot rely on “untrained” personnel to be competent to provide interpretation services. For example, in California, Chapter 1, Section 77, of the California Physician Liability Handbook explicitly requires “more than self-identification as bilingual” for an individual to be considered competent to provide interpreter services.
Remember, ineffective communication can result in misunderstandings between you and your patient” thus increasing the chance for error and resulting harm to your patient.
Progress Notes is published quarterly by the Claims and Patient Safety Departments of The Doctors Company.
