Surgeries involve the presence and assistance of many individuals other than just the surgeon. Not all of the individuals are agents of the surgeon but are employees of the hospital or other entities that send these individuals to help with a surgery as independent contractors or employees of corporations not associated with the surgeon. The surgeon can’t do everything himself but in certain limited situations, he may be labile for the acts of others as the “Captain of the Ship.”
Generally you will find nurses who are employees of the hospital assisting the surgeon with instrument and sponge counts before and after the surgery. You will find an anaesthesiologist or nurse anaesthetists who deal with keeping the patient comfortable during the surgical procedure.
If a cardiac procedure is being performed there will be a pump technician or perfusionist who must ensure that the heart-lung machine is functioning properly and the blood levels in the oxygenator are maintained so that the patient is receiving an adequate supply of blood.
In one Florida case, the patient died as a result of the negligence of the perfusionist who was filing out a laboratory form and failed to monitor the patient and an air embolism developed which ultimately killed the patient.
The wife brought a malpractice and wrongful death action against the cardiac surgeon on the theory that he was responsible for the acts and omissions of the perfusionist. The jury entered a verdict for $600,000 in favor of the wife and found that there was no active negligence of the surgeon but that the perfusionnist was the “agent” of the surgeon and therefore the surgeon was liable. The jury determined there was no active negligence of the surgeon but the jury also found that the perfusionnist was the “agent” of the surgeon.
The lawyers for the wife also alleged that the surgeon was negligent in permitting the surgery to proceed without some support or backup system to ensure that air did not enter the lines. One expert for the wife testified that the death was preventable and that open heart surgery should not be done with a single attendance. This case was a case of first impression in Florida. The issue before the appellate court was whether the cardiac surgeon should be responsible for the actions of a perfusionist.
However, this court has addressed the liability of a surgeon for the acts of hospital support personnel in other contexts. In Buzan v. Mercy Hosp., Inc., 203 So.2d 11 (Fla. 3d DCA 1967) , the court held that, using the agency test of the right to control, the status of a nurse performing a sponge count was for jury determination.
The court also observed that the specific act of negligence had to be evaluated in order to determine whether a hospital employee would be “regarded as controlled solely by the surgeon or doctor.”
The court further delineated a distinction between duties or acts involving professional skill, which would render the actor subject to the surgeon’s control, and ministerial services, such as a sponge count, which would not implicate the borrowed servant doctrine. Id. Cf. Variety Children’s Hosp., Inc. v. Perkins, 382 So.2d 331 (Fla. 3d DCA 1980) (hospital, not surgeon who had performed operation and had left hospital, was liable for negligence of residents who had exclusive responsibility for post-surgical care of patient).
The first issue presents the question of whether a cardiac surgeon may be vicariously liable for the negligence of a perfusionist. The plaintiff’s husband, died of an air embolism sustained during cardiac bypass surgery when air was entered the body of the patient.
In Florida, a surgeon in the operating room may be liable for the acts of assisting personnel as the “captain of the ship,” e.g. Hudmon v. Martin, 315 So.2d 516 (Fla. 1st DCA 1975); however, a surgeon will not be liable for the negligence of a fellow specialist such as an anesthetist or an intern. Dohr v. Smith, 104 So.2d 29 (Fla.1958); Fortson v. McNamara, 508 So.2d 35 (Fla. 2d DCA 1987) ; Parmerter v. Osteopathic Gen. Hosp., 196 So.2d 505 (Fla. 3d DCA 1967).
The rationale behind the rule that a trained professional will not be deemed a borrowed servant for whom a surgeon is vicariously liable was explicated by the Florida supreme court in Dohr:
The surgeon may have been generally in command from the beginning of the operation to the end or, as appellant terms him in the brief, “Captain of the ship,” but it is clear to us that he and the anaesthetists were working in highly expert fields peculiar to each and despite the common goal, … their responsibilities were not inextricably bound together.
The record clearly shows that the errant perfusionist was not certified, unlike the licensed professionals in Dohr and Fortson. Moreover, the perfusionist’s responsibilities were “inextricably bound” to the surgeon since the heart surgery could not be performed without a perfusionist.
The appellate court held that the trial court was correct in permitting the jury to decide whether the perfusionist’s services were or were not ministerial in nature and the corresponding liability of the surgeon.