Legal Doctrines: Implication for Practice Patients undergoing surgical intervention are unable to protect themselves; they must

rely totally on others for their well-being. Thus, four legal doctrines come into play. These four doctrines are the (1) captain of the ship, (2) borrowed servant, (3) respondeat superior, (4) res ipsa loquitur doctrines. CAPTAIN OF THE SHIP DOCTRINE This doctrine is based on the assumption that the surgeon directs and supervises the actions of all members of the surgical team. This theory imputes liability to the surgeon for the negligent acts of others. This common law doctrine is often used in operating room situations. In applying the doctrine, it must be determined that the health care provider was a servant of the surgeon in the sense that the provider was subject to the surgeons control. The legal elements which comprise control are: (1) the surgeon directs the manner in which specific task is to be performed, (2) the task is performed in the furtherance of the surgeons business.

BORROWED SERVANT DOCTRINE Another legal theory which imputes the negligence of one health care provider to another. The court has used this doctrine to impute the negligence of the nurse to the surgeon through the fictional creation of an employer-employee relationship. This is based on the reasoning that the employer (surgeon) has used the persons service and has exercised complete control and supervision over the person during the operation. This doctrine has been applied in various situations but is often used in surgical malpractice cases. Sometimes the nurse is found to be the employee of both the hospital and the surgeon, depending on the extent on which the surgeon has exercised over the nurse. Three theories of responsibility under this doctrine. Various courts have come to different conclusions as to which theory be given predominance. The nurse has the professional responsibility to correctly perform a nursing or medical task, without direct supervision by the surgeon, once the nurse has been ordered to carry out such a task by the surgeon. The surgeon is responsible for the actions of the entire surgical team The hospital has the overall responsibility for the actions of its staffs for the regular performance of their duties, particularly when these duties are performed in accordance with the hospitals policies and procedure.

RESPONDEAT SUPERIOR (Latin: "let the master answer") A legal doctrine which states that, in many circumstances, an employer is responsible for the actions of employees performed within the course of their employment. States that the superior, that the employer hospital or the physician, is responsible for the actions of the subordinate employees.

RES IPSA LOQUITUR (The thing speaks for itself) States that the elements of duty of care and breach can be sometimes inferred from the very nature of an accident or other outcome, even without direct evidence of how any defendant behaved. A rebuttable presumption or inference that the defendant was negligent, which arises upon proof that the instrumentality or condition causing the injury was in the defendant's exclusive control and that the accident was one that ordinarily does not occur in the absence of negligence. a plaintiff need not prove specific acts of negligence by the defendant, the burden of proof shifts to the defendant to prove that the standard of care was not breached The elements usually required for application of the doctrine are: (1) the event must be of a kind which ordinarily does not occur in the absence of someones negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; [and] (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff. Examples: Retained foreign body Fall from a stretcher Burns Removal of a wrong limb Negligent use of a tourniquet Nerve injuries from improper positioning