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 the states gave them 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. The borrowed- servant doctrine was useful because the courts are reluctant to deny injured persons their day in court. Because most states have abolished charitable immunity, the courts have modified the borrowed- servant doctrine to recognize that nurses have independent authority for many nursing tasks. The treating physician will not be liable for these independent actions. The borrowed-servant doctrine is still used when the physician is directing the actions of the nurse in an activity that the nurse cannot do independently, such as assist in an operation. Even in the operating room, however, there are still tasks such as the sponge count that are hospital rather than physician controlled.

The captain-of-the-ship doctrine is a special case of the borrowed- servant doctrine that applies in operating rooms. The theory was that the surgeon, as the captain of the ship, picked the crew and gave all the orders. As the captain of the ship, the surgeon was liable for the actions of 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 consisted of 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 with independent responsibilities to the hospital, 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 independently determining the liability of each person caring for the patient. Although 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.