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Hospital Employees

Physicians' liability for the actions of hospital employees is problematic because of the persistence of the borrowed-servant and captain-of-the-ship doctrines. These doctrines hold that all the actions of hospital employees are attributable to the patients' attending physicians. Under these doctrines, a physician may be found liable for the actions of a nurse whom the physician cannot hire, fire, or otherwise control. These doctrines evolved because, until recently, most hospitals were nonprofit corporations and were protected by charitable immunity. This immunity was predicated on the assumption that a nonprofit hospital provided a community service that was financed through patient revenues. The courts ruled that it would be against the public interest to allow an injured patient to recover a judgment against a charitable hospital because the judgment would drain off resources that could be used to treat many other patients.

Since the patient could not recover against the hospital, the courts created doctrines that attributed the actions of hospital employees to the attending physicians. As private practitioners independent of the hospital and the charity, these physicians were susceptible to suit. Finding that nurses were always under the control of the patient's attending physician allowed the patient to sue the physician when the hospital employee was at fault. This borrowed-servant doctrine was useful because the courts are reluctant to deny injured persons their day in court. As the courts have dismantled charitable immunity, many states have modified or abolished the borrowed-servant doctrine.

The captain-of-the-ship doctrine is a special case of the borrowed-servant doctrine that applies in operating rooms. In the operating room, the surgeon, as the captain of the ship, picks the crew and gives all the orders. The surgeon is charged with supervising all members of the operating room team. This made some sense in the early days of surgery when the surgeon was usually the only physician in the room, and the entire surgical team was a nurse to assist and a nurse to give anesthesia. In a modern operating room, with a physician giving anesthesia and a team of highly-trained nurses, the idea that the surgeon controls all the activity in the room has become untenable. This has led most courts to abandon the captain-of-the-ship doctrine in favor of determining the liability of each person caring for the patient. While this correctly reflects the shared responsibility in the operating room, it does reduce the incentive of the surgeon to ensure that all members of the team are competent.

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