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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.

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.

In our previous blog posts, we have been discussing ways in which a doctor patient relationship can be established other than a situation in which a person is treated by a doctor in his office or in the hospital. The following are examples of two other ways this can happen.

Unauthorized Prescriptions

In a Michigan case, a doctor’s wife took some of his prescription forms, forged her husband’s signature, and gave her friends prescriptions for sleeping pills. One lady overdosed and sued the doctor. Was he liable? No, because his wife had ready access to his office, which was in their home, and he had no reason to suspect that she would do such a thing. The doctor’s license to prescribe drugs did not extend to his wife, and she had committed a crime by forging his signature. This woman did not have a case for medical malpractice against the doctor.

Vicarious Liability

Injuries can be caused by nurses, technicians, and other employees of doctors and hospitals. A lab technician may do hundreds of tests a day that are sent in by many doctors. Is the technician liable if he or she makes a mistake and gives a wrong report, which causes a doctor to give the wrong treatment? You know the answer to that one – reliance. How about the owners or operators of the lab, even if they had the best equipment and hired only the most competent people? Absolutely. When a doctor can exercise any control over the actions of another, he has what is known as Vicarious Liability. If people have the authority to act for the doctor, like an x-ray technician taking x-rays while the doctor is not in his office, the doctor is responsible for their actions as the agent, and they may not have any responsibility at all.

Thousands of patients suffer due to medical malpractice and do not get the compensation they deserve. If you are a victim of malpractice, or your client is a victim of malpractice, contact JD.MD, Inc., today at 800-225-5363. We can provide you with an initial case evaluation or an expert’s opinion.

Before you file a medical malpractice or dental malpractice lawsuit, you have to find out whether you have a cause of action. Here is your first check-list:

Did You Have a Doctor Patient Relationship?

You cannot sue a doctor for medical malpractice who has never treated you or seen you as a patient. You must have a doctor patient relationship. If a doctor treats you in his office or the hospital, you are his patient and can hold him responsible for whatever happens. But, there are other ways in which a doctor patient relationship can be formed.

Reliance on a Doctor’s Assurance

Two couples were camping in Minnesota. One of the men was a pediatrician. During the night, the other man became sick, and his wife wanted to take him to the hospital. But, the pediatrician checked him over and said he would be better in the morning. Actually, his friend was suffering from a heart attack and was dead in the morning. The widow sued the pediatrician, claiming that her husband could have survived if he had been taken to a hospital. The pediatrician defended himself by saying: “I didn’t treat him. I’m not a heart specialist and didn’t even have a stethoscope with me. I just gave him the best, friendly advice I could under the circumstances.” Was it malpractice? Yes. By holding himself out as a physician, qualified to diagnose and treat the complaints, he had caused his friends to act, or not to act, in reliance on his assurance there was no danger. The pediatrician exercised a controlling influence on their decision.

Reliance on a Doctor’s Advice

You meet a doctor at a party and say: “Doctor, I have this heart (stomach, rheumatic, etc.) condition.” Maybe you are innocently trying to talk to him or maybe you are trying to get free medical advice. No matter. If the doctor says: “I’m sorry, that’s not my specialty” or “Why don’t you come and see me at my office”, there is no doctor patient relationship or cause of action. But, if he gives you advice concerning your problem, and you act on it, and anything goes wrong, he is liable. This is because he held himself out as a physician and caused you to act in reliance on that representation.

Reliance on an Unknown Doctor’s Opinion

In a New Jersey case, a boy twisted his neck in a football game. He went to the hospital, and they took x-rays. The doctor in the ER told him it was a sprain and sent him home. During the night, the boy became permanently paralyzed from the neck down, because the radiologist, who read the x-rays, missed a fracture of the vertebra, which should have been operated on immediately. The radiologist claimed that his only responsibility was to the hospital and the ER doctor, and he had never seen the boy or given him any advice or treatment. Was there a doctor patient relationship in this case? Yes. The radiologist had caused the treating doctor to act in reliance on the radiologist’s reading of the x-rays, and that was the cause of the paralysis. The jury found that the radiologist was the only one responsible and assessed a large award against him. Even if you never consulted a doctor, or never heard of him, he can be held liable if he causes you harm while acting in his capacity as a physician.

Reliance on a Doctor’s Signature

In a New York case, a doctor would leave signed prescription pads with his nurse. If patients came to his office when he was not there, the nurse would call him, and he would tell her how to fill out the prescription form. A signed prescription pad was stolen by a drug dealer, who filled it out and gave it to a teenager. The teenager had the prescription filled, took the medication, and died of an overdose. Was the doctor or the pharmacist liable for the teenager’s death? The doctor was fully responsible, because the pharmacist had acted in reliance on the doctor’s signature, which he knew to be genuine. The doctor was negligent in leaving signed prescription forms where they could be stolen.

Thousands of patients suffer, due to malpractice, and do not get the compensation they deserve. If you are a victim of malpractice, or your client is a victim of malpractice, contact JD.MD, Inc., today at 800-225-5363. We can provide you with an initial case evaluation or an expert’s opinion.

People used to think that suing a pillar of the community for medical malpractice or dental malpractice was a terrible thing. This point of view was encouraged by the medical and dental professions, whose attitude was, “How can people be so ungrateful when we are dedicated to saving humanity?” And, when the doctor was a family friend and confidant, that was a valid argument.

Many Doctors are Highly-Paid Technicians

But today, that relationship is basically gone. Many doctors are highly-paid technicians, who have spent a lot of time and money being educated, so they can earn a very good living. They are super specialized, which means they are concerned with treating one part of the body or one organ, and most of them have little free time for a patient’s personal problems or anything outside their narrow field of expertise. They see patients as technical problems to be cured and gotten on their way as quickly as possible. Some doctors see as many as a 70 patients a day. How much time do you think such a doctor has to listen to your personal problems?

Even the Most Learned Professors Make Mistakes

In the past, when the doctor was the trusted family advisor, a medical malpractice or dental malpractice lawsuit was considered a breach of trust and friendship and a terrible accusation that the doctor had committed an unprofessional act. A doctor, who was sued, felt his reputation and career were on the line. Those days are gone. Today, the law recognizes that even the most learned professors make mistakes. When people are injured by medical malpractice or dental malpractice, they should be compensated.

Many Doctors are Sued, and It Does Not Hurt Their Prestige or Incomes

Even if your claim is successful, you are not going to bankrupt the doctor, or take away his home, or lifetime earnings. When a doctor is sued for medical malpractice or dental malpractice, his insurance company hires a lawyer, pays the expenses of his defense, and any settlement or judgment against him. If the doctor’s insurance company settles the case out of court, the doctor may not have to spend a single afternoon away from his office, explaining his actions in court. In fact, defense lawyers often ask the judge to issue an order that any settlement paid to a victim remain “sealed and secret”, so it is difficult or impossible to find out whether the doctor was successfully sued for malpractice, and his reputation and income remain intact. Today, many doctors are sued, and it does not hurt their prestige or their incomes.

Thousands of patients suffer, due to malpractice, and do not get the compensation they deserve. If you are a victim of malpractice, or your client is a victim of malpractice, contact JD.MD, Inc., today at 800-225-5363. We can provide you with an initial case evaluation or an expert’s opinion.

Private duty nurses fall into a special category. They are licensed, trained nurses, who work with one client in a hospital, nursing home, or alternative setting. They may be independent contractors, and work through a referral agency, or they m

ay have their own nursing service.

If you were the victim of medical malpractice by a private duty nurse, you may find it difficult to pin down liability or recover your damages. When a private duty nurse works through a referral agency, the agency’s only responsibility may be to verify that the nurse is licensed by the state. Legally, the private duty nurse is your employee. You hire the nurse, and he or she works directly for you.

Since private duty nurses are not employees of the referral agency, your doctor, or the hospital, in most instances, they cannot be held responsible for the nurse’s malpractice. Furthermore, in some states, private duty nurses are not required to carry medical malpractice insurance or assets to satisfy a malpractice award. You might be able to file a claim against the referral agency, if you can show that it failed to screen its nurses properly and sent you someone, who was unqualified or had a bad record. But, as a rule, your recourse may be limited, if you are the victim of medical malpractice by a private duty nurse you have hired.

Every year, thousands of victims of malpractice suffer, by not getting the compensation they deserve. If you have been a victim of malpractice by a private duty nurse, do not hesitate to contact JD.MD, Inc., today.

We can provide you with a Comprehensive Screening Report, an initial evaluation of your case, by a qualified Nursing Reviewer. Contact our office at 1-800-225-5363 and gain some peace of mind.

Let us say that you were badly injured in an automobile accident and taken to a hospital ER, where the doctor said the hospital was not equipped to treat your injury and told you to go to another hospital. The delay caused serious complications. W

as the refusal to treat you malpractice? No. A hospital does not have to accept patients it is not equipped to treat.

A hospital not only does not have to accept a patient that it is not equipped to treat, but it is medical malpractice for it to do so. If you were admitted to a hospital’s ER, and it was later found that you had a bad result, because the hospital did not have the right specialists available, or the necessary equipment to treat your condition, you could sue for medical malpractice.

In a Florida case, a man suffered a ruptured spleen and an eye injury in a fall. He was admitted to a general hospital, where his spleen was removed. Because the general hospital did not have the equipment to treat his eye injury, his doctor ordered him transferred to a specialty hospital that treated only eye cases. When he arrived at that hospital, the ER physician refused to admit him, because the specialty hospital had no facilities to care for the major abdominal surgery he had undergone at the general hospital. The patient was returned to the general hospital, which readmitted him and kept him for another month without any treatment of the eye injury. The patient lost the eye.

When this man filed a lawsuit, the court said the general hospital was not guilty of medical malpractice for transferring him, because the general hospital could not treat his eye injury. And, the specialty eye hospital was correct in refusing to accept him, because it was not equipped to handle a serious abdominal case. However, it found the doctor and the general hospital both guilty

of medical malpractice for allowing him to return there when they were not equipped to treat the eye injury, and there was a nearby university hospital that could have cared for both injuries.

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.

Staff physicians, or attending physicians, are doctors, who maintain their own offices and go to the hospital to treat patients. The doctor goes to the hospital in the morning, visits his patients, may perform surgery, and then leaves. A large hos

pital may have 200 to 300 physicians on its staff. So, it is impossible for buy cheap viagra online the hospital to have someone following each staff physician around to make sure they do not commit medical malpractice.

But, a hospital is not just a building where doctors treat their patients. It cannot ignore evidence that the doctors it allows to use its facilities are unqualified or committing malpractice. The hospital has a responsibility to ensure that a patient does not become the victim of medical malpractice by doctors it allows to work there. The hospital may be liable if it did any of the following:

1. Granted a doctor privileges to do things he was not qualified to do.
2. Failed to monitor his performance from time to time.
3. Failed to take action to protect his patients, if it became aware, or should have become aware, he was practicing dangerous medicine or committing medical malpractice.
4. Failed to set high standards of performance for its medical staff and permitted substandard practice.
5. Did not require the doctor to call in a consultant, if a patient’s medical problems were beyond his training or ability.
6. Did not require the doctor to transfer his patient to another hospital, if it did not have the equipment or specialists to treat the patient’s problem.

Do you see how these add up? The hospital is not responsible for individual acts of independent, staff physicians. It is not responsible for what your doctor did to you, unless it allowed him to do things he was not qualified to do, or failed to take action when it knew that he was practicing dangerous medicine or getting hit with numerous medical malpractice suits. But, as part of the hospital’s general responsibility to protect patients, and provide for their well-being, it has an obligation to see that only qualified and competent physicians are permitted to treat patients and to have adequate equipment with which to treat their patients.

In a California case, a judge awarded a large sum against a hospital, because it had permitted a surgeon to do 36 unnecessary surgeries, falsify medical records, avoid consultations, and obtain consents to surgery by deceit and intimidation over a period of 9 years. During that time, the doctor was also sued for medical malpractice 26 times, but the hospital never investigated him or took any action to protect his patients.

Prior to 1940, public hospitals could not be sued for medical malpractice, because they were charitable institutions, rendering a public service. It was known as the doctrine of Charitable Immunity. Most hospitals were supported by churches, mun

icipalities, or universities, and it did not seem right to sue an organization that existed on charity and whose only purpose was healing the sick. Today, hospitals are big businesses and big money makers, and that doctrine has been discarded in just about every state. Hospitals can be sued like any other healthcare provider.

However, when charitable immunity was done away with, some states passed laws limiting the amount a patient could recover from a hospital. This continued to give the hospitals privileged status and protection, and by setting the limit so low, it was not worthwhile to file a medical malpractice lawsuit against them.

What do you do if your infant is brain damaged in a hospital, in a state where your recovery is limited? You find out the names of the hospital employees, who might have been responsible, and your lawyer files suit against them individually. They are not covered by the laws that protect hospitals, and almost all of them have their own medical malpractice insurance. In fact, most union contracts require hospitals to give their employees this protection. So, if you cannot sue the hospital for some reason, or the laws of your state prevent you from getting full compensation, your lawyer will sue the individual hospital employees involved.

The other situation is when a hospital employee or contractor does something outside the scope of his or her employment, especially if it is an unlawful or criminal act. In Pennsylvania, the family of a mental patient in a state hospital sued the state, because she had been sexually assaulted by an attendant. The court held that the state was not responsible for the attendant’s criminal act, which was outside the scope of his employment and which it could not have prevented.

In a Texas case, a patient went to a small hospital late at night after an automobile accident. The nurse on duty took x-rays, told the patient they were negative, and sent him home. No radiologist read the x-rays. The patient developed leg paralysis viagra canada from an undetected fracture and sued both the hospital and the nurse. The judge said the hospital was not liable, because the nurse was not authorized to take or read x-rays and should have called in a radiologist. He assessed damages against the nurse.

The Rule Is: If there are doubts about your ability to recover full compensation from a hospital, your lawyer will name individual employees who were responsible.

Hospital contractors are anesthesiologists, radiologists, and others, who work in the hospital under contract but bill patients directly for their services. Hospitals used to claim they were not responsible for those providers, since they were no

t payroll employees, and hospitals did not have the right to control their actions. To protect hospitals even more, these doctors would set up professional corporations, which would contract with the hospital to supply services. However, courts in most states ruled that hospitals were liable for the actions of those doctors, because patients are not offered a choice but must accept whatever doctor the hospital selects to do the job. Ask yourself these four questions to help you decide whether the hospital was responsible for the doctor’s medical malpractice:

1. You expected the hospital to provide the service and had no idea who would do it. You did not go to the hospital to consult any particular doctor. You went to the hospital to have a test, an x-ray, or an operation. Basically, you asked the hospital to provide a service and relied on it to provide someone competent.

2. You were not given a choice of doctors. The night before surgery a doctor comes into your room and tells you he is the anesthesiologist and is going to put you to sleep tomorrow. You have never heard of this doctor, and it seems the hospital has authorized him to give you anesthesia. Legally, this is called the Doctrine of Apparent Authority. The patient is given the impression that the doctor is working with authorization of the hospital. It is common practice for people, who have x-rays taken in hospitals, to be billed by the radiologist or his corporation. It is reasonable to suppose that a hospital decides which doctors will work in its x-ray department and retains the power to supervise their actions. That is why the hospital is liable for the actions of its contractors.

3. The doctor does all or most of his work in the hospital. An Indiana hospital claimed it was not responsible for the anesthesia death of a patient, because it had contracts with two different groups of anesthesiologists, who arranged schedules, coverage, and fees amongst themselves. The court held that the hospital was liable, because cialis buy the doctors did not work in any other hospital, and the only purpose of the contracts was to shelter the hospital against lawsuits.

4. The hospital supplies the equipment used by the doctor. In an Alabama case, a patient sued both the radiologist and the hospital for misreading her x-rays. The hospital said it was not responsible for the doctor, because he maintained a fully-equipped Radiology office outside the hospital and worked at two other hospitals. However, the court said the hospital was liable, because it supplied the technicians and equipment used in taking the x-rays and was responsible for the doctor’s actions.

Can you also sue the employee or contractor, as well as the hospital? Yes. Just because the hospital is responsible for the actions of people it engages to render services does not mean that those people can do as they please. You can also hold them personally liable, and sometimes you must sue both to protect your legitimate interests.

     
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