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.