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Are you liable for all bad outcomes during a shift?
Chance of legal doctrine holding up is "slim to none"
Imagine being held legally responsible for everything that goes wrong during your shift—whether you were involved or not. Under the "captain of the ship" legal doctrine, could this be a legal reality? Not likely, according to experts in emergency medicine litigation.
The "captain of the ship" doctrine dates back to medical malpractice cases from the 1930s, many involving a sponge left inside a patient during a surgical procedure. The doctrine shifts liability to the surgeon, under the rationale that the surgeon had the authority and responsibility to determine when to exit a particular body cavity, when to close an incision, and when to call for a sponge count.
However, in most jurisdictions, U.S. courts have determined that the "captain of the ship" doctrine is antiquated, says Jorge A. Martinez, MD, JD, program director for the combined internal medicine/emergency medicine residency program at Louisiana State University in New Orleans. While hospitals are responsible for the actions or omissions of nurses and paramedics under the theory of respondeat superior, ED physicians are not held legally responsible for the actions of others during their shift, he says.
There have been some recent cases where the "captain of the ship" doctrine was successfully used in malpractice suits, but these all involved surgeons in the operating room, not the ED. For example, in a 1987 medical malpractice case, a Colorado court of appeals applied the doctrine against a surgeon sued for wrongful death during an elective surgery.1
Though the doctrine is mainly obsolete, this decision shows it is not completely dead, says Martinez. "Apparently, courts may still utilize the doctrine if they conclude that the facts of a situation support a finding that a surgeon 'controlled' a nurse's actions," he says. "It is not impossible that a court could find that in a certain situation, a nurse or paramedic was under the 'control' of an ED physician."
Therefore, a court could conceivably apply the doctrine to a medical malpractice claim where a nurse was negligent in performing acts that were supervised by the ED physician, explains Martinez.
In one recent case, a man was seen by a nurse practitioner in an ED. The nurse practitioner performed a neurological assessment, reviewed X-rays, and determined that the man required analgesics to treat his acute lower back pain.2 The man was discharged with instructions to follow up with the previously scheduled magnetic resonance imaging (MRI), and an ED physician signed off on the patient's chart.
After the subsequent MRI revealed a spinal cord compression, for which the man required surgery, the man sued the ED physician under the "captain of the ship" doctrine, alleging that the doctor was responsible for the nurse practitioner's negligence in failing to discover the spinal cord compression earlier.2
"However, the court held that the doctrine did not apply outside of the surgical arena," says Blake Delaney, a health care attorney in the Tampa, FL, office of Buchanan Ingersoll & Rooney.
"Thus, the chance of an emergency department physician who is not a surgeon being held liable as a captain of the ship is slim to none, in my experience."
No patient-physician relationship
If there has been no contact between the ED physician and the patient, there is no patient-physician relationship. Therefore, the patient would have no right of action against the physician, says Martinez.
"Unfortunately, when plaintiff attorneys sue, they usually look at whose name is on the admitting section of the chart and name that physician, whether he or she saw the patient or not," says Martinez. "The physician can get out of it by proving that he or she had no interactions with the patient. Thus, no patient-physician relationship exists."
An exception would be if the physician told the patient to present to the ED so that the physician could evaluate the patient, says Martinez. In that case, a patient-physician relationship would have been instituted by the physician instructing the patient to present to the ED.
A patient-physician relationship would also exist if the ED physician saw the patient and sent the patient back to the waiting room, or if the ED physician was told about the patient's unstable status, refused to respond to the situation, and failed to check the patient or review the nurses' notes, says Martinez.
Delaney says he is unaware of any situation in which an ED physician would ultimately be held liable for an injury to a patient with whom the ED physician had no involvement, merely because he or she was the "person in charge at the ED."
"That being said, it would not at all be unusual for a patient-plaintiff to sue the ED physician under such a theory, alleging that the ED physician was in charge and that a physician-patient [relationship] was established merely by the patient registering at the ED," says Delaney.
If that happened, the physician would no doubt be subject to deposition and other discovery as a prerequisite to being dismissed from the case, says Delaney. "So even though the ED physician probably would not ultimately be held liable, he or she would be forced to incur attorneys' fees to get out of the suit," says Delaney. "There are several procedures through which such a defendant could then recover his or her attorneys' fees, but those methodologies vary from state to state."
1. Krane v. St. Anthony Hospital Systems, 738 P.2d 75 (Colo Ct. App. 1987.)
2. Dennis J. Powell v. William Wilson, M.D. et al. (California Fifth District Court of Appeal, Case No. F049097 (May 23, 2007).
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