Lewis v. Physicians Ins.
Co. of Wisconsin,
No. 99-0001 (Wis. June 13, 2001)
Following
an operation to remove a woman's gallbladder, it was discovered that a laparotomy
pad (sponge) was left in her abdomen. Although according to hospital policy
and the Wisconsin Administrative Code § HFS 124.13(7) nurses are responsible
for counting the sponges before and after an operation, the woman filed this
suit against the surgeon alleging that he was vicariously liable for the negligence
of the nurses. The woman conceded that the surgeon himself was not negligent.
The Supreme Court of Wisconsin concluded that the trial court had inappropriately
applied the "captain of the ship" doctrine.
The court stated that the "captain of the ship" doctrine had never been recognized in Wisconsin,
and was "an antiquated doctrine that fails to reflect the emergence of
hospitals as modern health care facilities . . . ." Although the woman's
recovery from the hospital (in a separate suit) was statutorily capped at $50,000
(when she had damages equal to $150,000), the court found that "[the capping]
is the result of a legislative policy decision, which may be supported by broader
considerations."