CAN A SURGEON BE LIABLE FOR ERRORS MADE BY OTHER MEMBERS OF THE SURGICAL TEAM UNDER HIS OR HER SUPERVISION?
Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.
Voss v. Bridwell, 188 Kan. 643, 364 P.2d 955 (1961).
This case addresses the following issue:
Can a surgeon be liable for errors made by other members of the surgical team under his or her supervision?
Modern surgeries are complex and difficult events, generally involving (at least) one surgeon leading a team of nurses, assistants, and others. Id. at 655. In this case, the court was asked whether the lead surgeon is responsible for acts of negligence committed by others on the surgical team. Id. at 656. After weighing the options, the court determined that a surgeon in charge of an entire surgical team is liable for negligence committed by other members of the team under the lead surgeon’s control. Id. at 664.
Plaintiff was undergoing surgery, to be performed by a surgical team consisting of the three Defendants—the surgeon, an anesthetist, and a resident physician. Id. at 644. Plaintiff was placed under anesthesia and a breathing tube was inserted. Id. at 646. However, the tube did not go into Plaintiff’s lungs, so Plaintiff was not receiving oxygen. Id. Defendants did not notice until Plaintiff had been deprived of oxygen for some period of time, and this deprivation caused such severe brain damage that Plaintiff was unable to care for himself following the incident. Id. at 647. Plaintiff filed suit against the three Defendants, alleging that the anesthetist failed to properly insert the breathing tube and that the resident physician failed to catch the error while monitoring Plaintiff’s status. Id. The only theory of liability pertaining to the surgeon was attributed to him by virtue of being in charge of the surgical team. Id.
Under Kansas law, respondeat superior makes a principal responsible for the acts of his agents. Id. at 656. So long as the agent is acting under the direction of the principal, there is no asking responsibility just because a task was delegated. Id. The idea behind this is that a boss must exercise due care in selecting employees or assistants, and certainly must exercise care in supervising those that are working under his direction. Id.
In this case, the court found that the surgeon was the leader of the team, and had selected each member personally. Id. The surgeon was directing the other Defendants, and the rest of the team, at the time of the negligent act. Id. These facts were sufficient to find that the surgeon exhibited enough control over the team to be liable for any members’ carelessness. Id. at 657.
The surgeon had made one final argument concerning his liability: the other Defendants were certainly employees of the hospital, so how could they be the responsibility of the surgeon? Id. at 657. This argument, however, did not fare well with the court. Id. The court noted that respondeat superior has long been interpreted to allow an agent to sever two principals at once. Id. This fact alone does not mean that someone does not have the necessary control to create liability. Id. at 657-58.