99-0001 Lewis v. Physicians Insurance Co. of Wisconsin

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“Similar to respondeat superior, ‘captain of the ship’ is another theory that allows a party to invoke vicarious liability, but it has never been recognized in Wisconsin and, as the court of appeals acknowledged, has fallen into disfavor in other jurisdictions. Lewis, 2000 WI App 95. Because ‘captain of the ship,’ which enabled plaintiffs to recover in the face of a hospital’s ‘charitable immunity,’ is an antiquated doctrine that fails to reflect the emergence of hospitals as modern health care facilities, we decline to adopt it now.”

The decision of the court of appeals is affirmed.

CONCURRING OPINION: Abrahamson, Ch. J., with whom Bradley, J., joins “I agree with the mandate because this case has come to us on summary judgment based on stipulated facts. I write separately because I am concerned that rules of law might be mistakenly drawn from the broad language in the majority opinion.” For example, it is a mistake to conclude from the decision that a surgeon can never be held liable for the negligence of a hospital nurse.

“A surgeon can be vicariously liable for the negligence of hospital nurses if the nurses are under the surgeon’s control and supervision. Whether hospital nurses are under the surgeon’s control and supervision would ordinarily be a question of fact for the fact-finder. The stipulation is silent about the surgeon’s supervision and control of the hospital nurses in the present case. The facts of each case would determine whether the surgeon has exercised supervision or control over the hospital nurses.”

Attorneys:

For Appellant: Christopher P. Riordan, Milwaukee

For Respondent: Timothy J. Aiken, James C. Gallanis, Milwaukee