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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.

Agents

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.

This is a special category you should know about, if you think a hospital employee was responsible for your injuries. Earlier, we said that a hospital may not always be responsible for the actions of it employees. What if a nurse is assisting a doctor at surgery and makes a mistake while she is acting under his orders? What if an x-ray technician is a payroll employee of the hospital but works under the direct orders of the radiologist? This is what is known as a borrowed servant. When a hospital employee is under the direct control of an independent doctor or agency, the person, who is actually controlling the employee’s actions, is responsible for them.

For example, a surgeon cannot tell another doctor, who is a qualified specialist, how to practice his specialty, so he has no responsibility for the actions of a board certified anesthesiologist. However, if the anesthesiologist is a resident (doctor in training), the surgeon is supposed to teach and supervise him, and the resident becomes his borrowed servant during the surgery. But, the surgeon is only responsible for what the Anesthesiology resident does while under his supervision. The hospital, which pays the resident’s salary, is responsible for what he does when the surgeon is not there. A nurse anesthetist is neither a doctor nor a trainee, so the surgeon is supposed to supervise everything the nurse anesthetist does. He or she is the surgeon’s borrowed servant for as long as he or she works on his patient, and the surgeon is responsible for everything a nurse anesthetist does to his patient, whether he is present or not.

This can get complicated. Suppose you have an operation and a sponge is sewed up inside your abdomen. Someone has committed medical malpractice by failing to count the sponges before the surgeon closed your incision and warn him that one was missing. But, who is responsible? The scrub nurse was working under the surgeon’s direct supervision, so he would be liable if it were the scrub nurse’s error. But, in many hospitals, the surgeon is responsible for the sponge count, and that would raise the questions we have just discussed. As a qualified specialist, the surgeon is fully responsible for his own actions. But, if he does most of his work in that hospital, it could be responsible for his mistake. Maybe it was the circulating nurse, who is like a general handyman in the operating room, and works under the orders of the head nurse. The hospital would be responsible for her actions. In some states, you might want to hold her personally responsible.

There is also another form of liability that is recognized in some states. It is called the Captain of the Ship Doctrine. Under the Borrowed Servant Doctrine, a doctor is usually only responsible for what a hospital employee does in his presence.

The Captain of the Ship Doctrine holds the doctor responsible, whether he was present or not, if he had the power to control the actions of the person who committed the malpractice.

Laws governing the theories of Borrowed Servants and Captain of the Ship can be complicated and vary from state to state. Your lawyer will have to make a thorough investigation and decide who was liable.

     
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