Many times when a client suffers from a medical mistake, or a family member of a person who has died as a result of a surgical mistake contacts our firm, they want to know if the primary doctor or surgeon is responsible for the surgery, even if they didn’t make the actual mistake during the surgery? This point is a bone of contention between injury lawyers representing medical malpractice victims and the lawyers who represent doctors and hospitals.
- Case results from our team of Va Beach injury attorneys involving medical malpractice
- What Qualifies as Malpractice in Virginia?
- Article on Medical Errors and the Evidentiary Burden That Must Be Met by Plaintiffs
In one case published opinion, a CRNA was working on anesthesiology administration with a doctor who was the surgeon for the operation. Everyone agreed that the CRNA made the key medical mistake, so the issue was whether the surgeon over the operation was responsible for the mistake after he was sued—under the so-called captain of the ship doctrine. The federal judge in Blevins v. Sheshadri, Case No. 2:02CV00043, (W.D. VA 2004) reviewed the law pertaining to the so-called captain of the ship doctrine as follows:
The more serious question is whether Dr. Sheshadri can be held vicariously liable under these facts for any negligence of the CRNA assisting in the operation. The imputed liability of a surgeon for the negligence of medical professionals assisting in the surgery has been approached differently by different courts. At one extreme, surgeons have been found strictly liable under the “captain of the ship” doctrine, by which the surgeon is deemed liable as a matter of law for all acts of negligence occurring in the operating room on the ground “that it is his duty to control everything going on in the operating room.” Thomas v. Raleigh Gen. Hosp., 358 S.E.2d 222, 224-25 (W. Va. 1987) (rejecting “captain of the ship” doctrine where surgeon was sued based on negligence of anesthesiologist and nurse anesthetist in inserting and removing tracheal tube).
To be fair, many of the opinions applying the “captain of the ship” doctrine involved res ipsa loquitur situations, such as leaving a sponge in the patient. For example, in Easterling v. Walton, 156 S.E.2d 787, 791 (Va. 1967), the surgeon is described in the opinion as the “captain of the ship” but the issue was simply the direct liability of the surgeon based on the application of the doctrine of res ipsa loquitur where a surgical pad was discovered in the patient’s body after an appendectomy. Easterling did not involve vicarious liability and I agree with another judge of this court that the decision does not mean that Virginia has adopted the “captain of the ship” doctrine. See Peck v. Tegtmeyer, 834 F. Supp. at 906 (Kiser, J.).
The Virginia rule governing this situation is found in Whitfield v. Whittaker Memorial Hospital, 169 S.E.2d 563 (Va. 1969). In Whitfield, a patient undergoing a tonsillectomy died from shock after an anesthetic gas administered by a nurse anesthetist was negligently allowed to enter the patient’s stomach, causing it to rupture. See 169 S.E.2d at 566. As in this case, the patient’s administrator sued the hospital, the surgeon, and the nurse anesthetist for wrongful death. Id. at 564. After the evidence was presented at trial, the trial judge struck the evidence as to the surgeon and entered judgment for him. Id.
The Virginia Supreme Court held that to determine whether the nurse anesthetist was the temporary agent of the surgeon during the operation, and thus impute her negligence to him under the doctrine of respondeat superior, “it is necessary that [the agent] not only be subject to the [principal’s] control, or right of control, with regard to the work to be done and the manner of performing it, but the work has to be done on the business of the principal or for his benefit.” Id. at 567. The court noted that “[a]ctual control, however, is not the test; it is the right to control which is determinative.” Id. Citing facts showing the surgeon’s “supervisory control” over the nurse anesthetist, the court held that the vicarious liability of the surgeon was a jury issue, and remanded the case for trial. Id. at 568.
In accord with the Whitfield decision, and considering the evidence and its reasonable inferences in a light most favorable to the plaintiff, I find that there is a genuine issue of material fact as to whether CRNA Levya was the temporary agent of Dr. Sheshadri with regard to this surgery. It is true that Dr. Sheshadri disclaims that he had any right of control of the method of administration of anesthesia by Levya, but the hospital’s written policy implies that he did. Perhaps “supervision” as described in the hospital’s policy means something different than right of control, but I cannot make that decision on this record. Based on the evidence and proper instructions, whether Levya was the temporary agent of Dr. Sheshadri will be a question for the jury.
The main part of the analysis by this federal judge was whether the doctor was the supervisor over the conduct of the operation itself, including those portions of the operation done by the CRNA, the anesthetist. The judge ruled that this key fact would be up to the jury to decide, that is if the lead surgeon was theoretically the supervisor over all those in the operative setting even though he completely denied having any right of control over the CRNA.
Indeed, Virginia has a standard model jury instruction which doesn't use the words "captain of the ship" but in essence applies the same concept, this jury instruction reads as follows:
Instruction No. 35.100 - Surgeon's Responsibility in Operating Room
A surgeon performing an operation is responsible for any acts of negligence by anyone in the operating room who is subject to his control, regardless of who employs or pays that person.
So here's what happens in medical malpractice in reality. When we represent someone who was harmed as a result of an obvious surgical error, it's not possible for us to call up a doctor who is the supervisor over the operation and ask that doctor: ‘hey, which of the assisting surgeons or paraprofessionals are the ones that actually made the mistake?’ As you can presume, they're not going to give that information out in advance of a lawsuit, and maybe not even in the course of a lawsuit.
Holding the doctor in charge of the surgery responsible for those under his wing is no different than how a cruise ship captain is responsible, it's no different than any other job or place of business where the CEO is responsible and the buck stops there. If we don't have a system of accountability, we would have a system of anarchy and we would not have rules of law. The buck has to stop somewhere and that's why the doctor in charge of the surgery is the one everyone is answerable to in the first place.
If you have any questions about a potential medical malpractice case involving a surgery gone wrong, or a situation involving what you believe was a medical mistake arising from surgery, please contact one of our Virginia medical malpractice attorneys for a free confidential consultation.