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Appellate Court Reaffirms Rejection of Captain of the Ship Doctrine

By Murvel D. Pretorius, Jr.

In the recent decision of Forsberg v. Edward Hospital and Health Services, the Second District Appellate Court reaffirmed Illinois’ rejection of the Captain of the Ship Doctrine. Under this doctrine, which has been adopted in 20 other states, a surgeon may be held liable for the negligence of an assisting nurse whom he does not employ if the nurse’s negligent acts are done while the nurse is under the surgeon’s direct control or supervision.

In Forsberg, the plaintiff brought a claim against both the hospital and her surgeon after undergoing a lumpectomy in her left breast. The basis of the plaintiff’s claim was that a sponge was left behind. Discovery showed that a nurse employed by the hospital told the surgeon that all of the sponges had been collected prior to the end of the surgery. The surgeon testified that the circulating nurse was responsible for keeping track of the sponges used during a surgery. The circulating nurse did this by keeping count of the sponges that were delivered and those that were received back. The delivery count was then verified by both the scrub nurse and the circulating nurse. On this evidence the trial court granted summary judgment in favor of the surgeon, and the plaintiff appealed.

On appeal, the plaintiff argued that the Captain of the Ship Doctrine prevented summary judgment in favor of the surgeon. But the appellate court disagreed and reaffirmed that Illinois rejects a rule making a surgeon liable for every negligent act of persons under his control. The court noted that if a surgeon retains supervision or control over other persons participating in the surgery, the surgeon should be required to exercise that control with reasonable care. However, a surgeon may not be held liable for the negligence of the nursing staff without proof that the surgeon was independently negligent in relying on the nursing staff. Since the surgeon’s deposition testimony established that no such proof existed, the court found that summary judgment was properly entered in favor of the surgeon.

 

Originally published in the Summer 2009 edition of Quinn Quarterly.