Posts Tagged ‘Borrowed Servant Doctrine’
You may be asking: “What is the difference between the Captain of the Ship Doctrine and the Borrowed Servant Doctrine?” when it comes to determining who is responsible in a medical malpractice or dental malpractice case.
Captain of the Ship Doctrine
Under the Captain of the Ship Doctrine, the doctor is responsible for everything that happens while he is in charge, whether it was done by people under his control or not. If another surgeon comes in to help him and makes a mistake, he can still be held responsible, even though the other doctor is a fully-qualified specialist. This doctrine imposes more responsibility on the doctor than the Borrowed Servant Doctrine; however, a lot of states do not recognize it.
Borrowed Servant Doctrine
Under the Borrowed Servant Doctrine, a doctor is only responsible for the people under his supervision and control. Under this doctrine, he cannot be held responsible for the actions of another specialist.
If a doctor or hospital has the authority to control someone else, that person may be his agent or the hospital’s agent, and the doctor or hospital can be held liable for the agent’s actions. They may be in different locations and have never met. What matters is the Authority to Control, not actual control.
In a Colorado malpractice case, a ski instructor suffered a broken knee on the slopes. The municipality where he was injured had an arrangement with a Denver hospital that all accident cases would be taken to the office of a local pediatrician, who would give emergency treatment, and send the patient on to the Denver hospital. Even though the man asked to be taken to a nearby orthopaedic surgeon, the rescue squad took him to the pediatrician, who manipulated the knee, tearing the ligaments, and causing permanent damage. When the man sued, the Denver hospital claimed that its contract was with the town, and the hospital had no control over the pediatrician. But, the court held that the pediatrician was acting as the hospital’s agent, because the hospital had the authority to tell the pediatrician to send it all injured people brought in by the rescue squad. The jury awarded the plaintiff damages against all three: the pediatrician, the hospital, and the municipality.
In a New York case, a heart specialist engaged a retired doctor to make follow-up visits to his patients in the hospital and at home, as they were convalescing. The arrangement was that the retired doctor would charge the patients directly for his services and could be completely independent. The retired doctor missed signs of a recurring heart attack in an elderly lady and she died. The heart specialist claimed that he was not responsible for the doctor, who was an independent physician. But, the court held that the retired doctor was acting as the heart specialist’s agent, because the specialist had the authority to tell him how to treat his patients.
It can be difficult to determine who exactly was at fault in your client’s medical malpractice case. JD.MD can help you. Contact us today at 800-225-5363 for an initial case evaluation or a medical expert’s opinion.
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