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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.

Obviously, you cannot throw the burden of proof onto the doctor just to make it easier for you. In order for your lawyer to plead res ipsa, you have to satisfy three conditions:

1. What

happened to you must be the sort of thing that does not n

ormally happen in the absence of medical malpractice or dental malpractice.

Like the patient finding his shoulder was damaged after an appendectomy, the injury has to be something that cannot be easily explained as a normal complication, such as having a sore foot for a few weeks after foot surgery, or your 90 year-old grandmother dying of a stroke. It has to be something out of the ordinary, and something the doctors never warned you about, such as finding that your baby is brain damaged after you were led to believe your pregnancy and delivery were normal.

2. Whatever was done was under the physician’s or dentist’s exclusive control.

The best example of this is a surgery in which the doctor has full authority and responsibility for everything that is done. It is known as the Captain of the Ship theory.

3. You were either unconscious at the time of your injury or doing exactly what you were told to do by the physician or dentist.

What happened was not due to any voluntary act on your part, and you were not guilty of contributory negligence.

In a New Jersey case, a doctor treated a woman for a chronic chest complaint without ever taking a chest x-ray. Finally, after six years, another doctor took an x-ray and found she had tuberculosis. When the first doctor was sued, he said it was the patient’s fault. If she did not improve in six years, she should have consulted another doctor. No one forced her to keep going back to him when she was not getting better. The court disagreed, stating that the patient could not be criticized for misplaced confidence in her doctor and following his orders faithfully. He had exclusive control and was the only one to blame.

Multiple Defendants

You were treated by many doctors over a period of time and cannot be sure which one was responsible or whether they all were. This is the most difficult type of malpractice case to win for the following reason


1. Medical malpractice lawsuits against multiple defendants require an enormous amount of paperwork and added expense.

2. Juries might believe that one or two doctors committed malpractice but are reluctant to believe that all the doctors and two or three hospitals were all negligent.

3. Jurors are turned off by what they see as harassment suits against innocent people.

4. The most important reason is that the lawyer for each defendant will make a summation speech to the jury at the end of the case, which means that the jurors will hear multiple arguments against you and only one argument – your lawyer’s – in your favor. That loads the odds heavily against you, and such cases are usually lost.

An airline attendant sued a California dentist for dental malpractice that resulted in her losing most of her teeth. However, in the course of her work, she had been treated by four other dentists in different cities, during and after the poor work done by the California dentist. Her lawyer had an impossible job of trying to sort out who was responsible for what, and he could not drop any of the defendants, because their work was overlapping. She finally dropped her case.

The Rule Is:
As your attorney makes discovery and finds out what really happened and who was responsible, you drop your complaint against everybody who was not responsible and try to end up with not more than 1 or 2 opponents in court.

The Doctor Made a “Slip of the Wrist.”

Be careful of the mishap which can be defended as a “slip of the wrist” or unforeseeable accident. We all make honest mistakes, and medicine and surgery are arts and not exact sciences. If the statistical chances of a bad result from the operation you had are 2%, and your doctor testifies that he has done over 200 and yours is the first one he ever had to go wrong, the jury will probably go along with him. No one is perfect, and doctors are only expected to adhere to good and accepted medical practice.

Unless the doctor has persuaded you to go ahead with surgery or treatment on the basis of a promise of specific, good results, such as in Cosmetic Plastic Surgery, the law says that he only undertakes to treat you and does not guarantee any results. However, if there was a Pattern of Negligent Behavior – he was negligent on more than one occasion while treating you – it blocks the simple mishap defense, and your case is much stronger.

The Local, Small Town Doctor

The physician who looks and acts the part of the sincere, dedicated, well-qualified doctor, and who is well thought of in the community, can be a tough opponent, no matter what he did. The jury is going to believe his version of what happened, because the jurors like and trust him.

In a case in upstate New York, a neurosurgeon had a patient who died. The doctor was in his 80’s – too old to open somebody’s head – and made terrible errors, which caused the patient’s death. No doubt about it. Technically, it was an open-and-shut case. The widow sued and brought in well-qualified professors in Neurological Surgery and Pathology as her medical expert witnesses. The doctor’s medical expert was a pathologist with dubious credentials, who showed microscopic slides that he said were from the patient but were proven to be from another person and exposed as fraudulent. No matter! The doctor was a beloved old, local character who knew practically everybody in town. The jury was not about to find him guilty of malpractice – and it didn’t.

The Rule Is: Eminent doctors and famous hospitals can usually brush off weak or dubious lawsuits. Juries are reluctant to believe that they would do anything wrong. They are tough opponents and you must have a strong case if you hope to win. One way your lawyer can neutralize local popularity or prestige of a formidable opponent is by a legal maneuver called Change of Venue.

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You Received a Terrible Result. It Must be the Doctor’s Fault.

Your husband had by-pass surgery. Afterward, he developed an embolus (air bubble) that lodged in his brain and left him paralyzed and in worse condition than before the surgery. He is certainly entitled to get something for such a terrible result, right? Not nece

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ssarily. Some surgical and medical treatments carry high risks. Complications, including death, can occur without any malpractice. Remember, there has to have been malpractice, and you have to show that it was the probable cause of your injuries.

The Rule Is:
Bad results alone will not win a malpractice lawsuit. In every successful malpractice case, there was some identifiable incident or action that was, more likely than not (a greater than 50% chance), the cause of the injury.

Rudeness and Neglect

No one answered the call button when you were in severe pain, or you found that your mother had been lying on a bedpan all night, or you were kept waiting for three hours in the ER, or they left your father outside the x-ray department all afternoon with no one to attend to him when he was only semiconscious. Outrageous neglect? Yes, but they do not qualify unless they caused some bad result, in addition to the annoyance and aggravation.

A man with a stab wound of the chest was kept waiting in the ER of a Georgia hospital for over two hours and passed out twice before a doctor arrived to take care of him. However, the wound was successfully repaired, and he suffered no bad effects from his ordeal, so his lawsuit was unsuccessful. He should have reported the hospital to the health department or the department of human resources.

The Rule Is:
Neglect, rudeness, and bad manners may be infuriating and justification for strong words, but you must show they actually caused some damages to justify a medical malpractice lawsuit.

You Like the Doctor and Really Do Not Want to Sue Him.

Unless you feel strongly that you have been wronged, and have a healthy dislike for the person who did it, you will not win your case. A malpractice case can take several years. If you are not committed to it in the beginning, you will not have the stamina to see it through to a successful conclusion. You will only spend time and money and receive nothing in return. The insurance company lawyers are hoping to wear you down. One of their ploys is to make you feel sorry for the doctor, or run out of patience, so you will drop your lawsuit or settle for a nominal amount.

The Rule Is:
A malpractice case is always a fight, ostensibly between you and the doctor, but it really is between you and the doctor’s malpractice insurance company to see who gets the money that was set aside for your protection. Unless you are serious enough to fight and see it through to a successful conclusion, you should not start a malpractice case.

You Want to Sue the Doctor but Not the Hospital or Vice Versa.

For some reason, you do not want to sue one of the parties responsible for your injury. Maybe you work for the hospital or the doctor lives just down the block, and you do not want to make enemies. Forget it. The surest way to lose your case is to leave out a party, who should be named as a defendant.

In a Florida case, a woman suffered a serious injury while under general anesthesia. Since she was asleep, she had no way of knowing whether it was caused by the surgeon, the anesthetist, or a hospital employee. She did not want to sue the local hospital for personal reasons and only sued the surgeon. When her expert witness testified at the trial, the defense lawyers asked him if he could say for certain that the doctor, and no one else, had caused the injury. Of course he could not. The injury could have been caused by anybody who handled her while she was unconscious. So, the judge threw her case out of court. If she had sued everyone involved, Jointly and Severally, admitting that she did not know who was responsible, because she had been asleep, and let the jury decide who was responsible, she probably would have won her case and received an award.

There is another risk in leaving out people, who may have caused your injury. Defense lawyers may find a doctor who was involved but was not named as a defendant in the lawsuit and cannot be sued because the statute has run (too much time has elapsed). The defense lawyers blame it all on that doctor. Maybe he even cooperated to help save his colleague and becomes a Voluntary Defendant, which means that he assumes all the blame for what happened to you. That gets everybody else off the hook, and since he can no longer be sued, it leaves you holding the bag.

The Rule Is:
Sue everybody who might have caused your injury. You can always drop your complaint against anyone who turns out not to be at fault. But, you cannot sue anybody after the time limit expires.

Cancer and High-Risk Diseases

Cancer is a dread disease that inspires fear in most people and jurors. The cancer specialist can justify disfiguring surgery or giving the most poisonous drugs or deadly radiation, in order to save his patient from certain death. The same rule applies to heart surgery, in which one patient in ten can die, even with the very best care. In this type of case, the fact that you received a bad result does not mean a thing. You have the difficulty of showing there was no excuse at all for the bad result. The doctor can get eminent professors to testify truthfully that they have had lots of patients die in spite of their best efforts.

The one big exception is failure to diagnose and treat cancer or serious heart disease until it becomes incurable. Today, many cancers are curable if treated early. If you can show that negligent delay in diagnosis and treatment caused a cancer to go from a treatable stage to an incurable one, or that heart surgery was delayed until after the fatal heart attack, you have a solid case.

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