Court Upholds Captain-of-the-Ship Doctrine

by Richard Cahill, Associate General Counsel, Legal Unit

For nearly 75 years, California courts have consistently held physicians responsible for the damages allegedly caused by the negligence of nurses in failing to remove sponges or devices at the conclusion of surgical procedures. Various legal theories have been utilized, including respondeat superior (vicarious liability), captain of the ship, and res ipsa loquitur (which presumes that the surgeon was negligent because he had exclusive control of the operating room).

The original justification was that, without holding surgeons financially liable in such circumstances, injured patients had no other redress because hospitals historically enjoyed protection from civil litigation under the now-abandoned doctrine of charitable immunity.

Several jurisdictions across the country have recognized that these legal fictions are no longer necessary as medical centers now bear legal responsibility (and carry adequate liability insurance) for the conduct of their professional employees. These states have, accordingly, rejected the antiquated doctrines, which were undeniably designed to shift financial responsibility and thereby help ensure compensation for injured patients.

Unfortunately, California has not yet joined this evolving trend. The Second Appellate District of the California Court of Appeal recently reaffirmed the liability of surgeons in retained-sponge cases in Fields v. Yusuf. In that case, the patient sustained injuries from a fall in her home, resulting in vascular blockage. Dr. Frank Yusuf subsequently performed arterial bypass graft surgery to install a new blood vessel, inserting sponges intraoperatively to absorb and stem the flow of blood. Two sponge counts were conducted and determined to be correct.

The following day, Ms. Fields required a second procedure to remove a blood clot that had developed in the graft. According to the postoperative notes, only one sponge count was done. Unfortunately, a sponge was left deep in her leg, behind the knee, resulting in an infection. Gangrene developed, and an above-the-knee amputation was performed a month later.

Ms. Fields initiated a suit against Dr. Yusuf and the hospital. The hospital eventually settled, and the matter proceeded to trial against Dr. Yusuf. The defense alleged, among other contentions, that surgeons routinely depend on the nursing staff to keep track of sponges and, appropriately, rely on the counts prior to wound closure. Expert witnesses testified on behalf of both parties. In addition, the plaintiff ’s attorney requested that the trial court instruct the jury regarding res ipsa loquitur, nondelegable duty of a surgeon, and the captain-of-the-ship doctrine. The trial judge refused. The jury found that Dr. Yusuf was not negligent, and the court entered judgment in his favor. A motion for a new trial was denied, and an appeal followed.

Ms. Fields asserted that the trial court erred in refusing to instruct the jury that it could find liability if the patient established a prima facie case of res ipsa, nondelegable duty, or captain of the ship. Relying on Ales v. Ryan, 8 Cal. 2d 82 (1936), the Court of Appeal agreed with Ms. Fields, found the instructional errors to be prejudicial, reversed the judgment in favor of Dr. Yusuf, and remanded the matter for retrial.

In its opinion, the Court of Appeal reviewed the historical rationale for holding a surgeon responsible for the alleged negligence of nurses and ultimately upheld existing law in California, quoting Truhitte v. French Hospital, 128 Cal. App. 3d 332 at 349 (1982), that “the surgeon’s duty to remove all sponges and other foreign objects from the patient’s body is nondelegable” because of the “special relationship” that exists between a patient and surgeon during an operation.

The court also discussed in detail the captain-of-the-ship doctrine as it applies to this set of circumstances and, quoting Ales v. Ryan, supra, noted that “the surgeon in absolute charge of and who is directing the operation, as defendant was doing under the admitted facts of the instant case, is responsible for the negligent act of the assistant in failing to remove a sponge from the abdomen.” Again, based on the special relationship that exists between a vulnerable hospital patient and the surgeon operating on that patient, the court held that there is “sufficient justification for the continued application of captain of the ship doctrine.” The decision concluded that “the question to be answered by the jury [on retrial] is not whether Dr. Yusuf had control over how the sponge count was conducted, but whether he had the authority to order the sponge count to be made under his supervision during the operation.” The petitions to the California Supreme Court to grant review of Fields v. Yusuf and to depublish the intermediate appellate decision were both recently denied.

Unless the California Supreme Court reverses the holding in Ales, supra, and joins the more contemporary trend being followed in certain other jurisdictions, these antiquated theories of recovery will continue to improperly expose surgeons to the risk of having to shoulder at least a portion of the financial responsibility for the conduct of nurses during operative procedures.