According to an article in Outpatient Surgery, the surgeon was not in the room when the injury occurred and only discovered it when he was about to begin the procedure.
An insufflator valve had been sterilized and was apparently still hot when an unknown hospital staff member put it down on the patient's exposed skin. [An insufflator is a machine that is used to pump CO2 through tubing into the abdomen for laparoscopic surgery.] When the doctor saw the mild second-degree burn, he asked what happened, but "but no one in the OR claimed any knowledge or responsibility."
The hospital had settled the suit on behalf of its staff, but the surgeon, who as a private practitioner had his own malpractice insurance, held out. The original lower court ruling dismissing the suit against him had been based on the plaintiff's lawyer's failure to prove that the surgeon was responsible for the actions of the hospital staff.
In December 2012, I wrote a post stating my opinion that activities such as counting the sponges during an operation were not the responsibility of the surgeon. Many who commented on the post were highly indignant that I could suggest such a thing.
I wrote another post last year on the subject in response to another surgeon's blog entitled "Everything's my fault: How a surgeon says I'm sorry." I felt that many things that happened to patients were beyond the control of the surgeon. Most of the comments agreed with me.
I keep hearing that medical care has become a team sport. If that's true, then the surgeon, like everyone else, is simply a member of the team. People on teams have different roles and must execute properly for the team to succeed.
One of the most interesting things about the case in question was that none of the OR team members had any idea how that hot insufflator valve found its way to the patient's abdomen.
One thing we know for sure, at least in Kentucky, is that a surgeon is not legally responsible for everything that happens to a patient in the operating room, particularly when he is not even present.
Is this decision the first nail in the coffin of the "captain of the ship" doctrine?