Public Health Law Map - Beta 5 - Medical and Public Health Law Site

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.
7. Delegation of Authority
The practice of medicine and nursing is defined and regulated by state law. Most of
the federal regulations on medical practice and payment for medical care defer to the
state’s rules on what is allowable practice. If one state allows nurses to do what
another state restricts to physicians, a very common situation, the federal government
will pay the nurse in the permissive state and not in the restrictive state. Since
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