Lewis v. Physicians Ins. Co. of Wisconsin

Case No.:

Complete Title
of Case:

2001 WI 60

SUPREME COURT OF WISCONSIN

99-0001

Norvin Lewis and Delores Lewis,
Plaintiffs-Respondents-Petitioners,
v.
Physicians Insurance Company of Wisconsin, Jay
Seldera, M.D. and Wisconsin Patients
Compensation Fund,
Defendants-Appellants,
Lakeland Medical Center, The Dean Health Plan,
Inc. and Donna Shalala,
Defendants.

REVIEW OF A DECISION OF THE COURT OF APPEALS
2000 WI App 95
Reported at: 235 Wis. 2d 198, 612 N.W.2d 389
(Published)

Opinion Filed:
Submitted on Briefs:
Oral Argument:

Source of APPEAL
COURT:
COUNTY:
JUDGE:

June 13, 2001

January 4, 2001

Circuit
Milwaukee
Michael G. Malmstadt

JUSTICES:
Concurred:

ABRAHAMSON, C.J., concurs (opinion filed).
BRADLEY, J., joins concurrence.

Dissented:
Not Participating:

For the plaintiffs-respondents-petitioners there
ATTORNEYS:
was a brief by Timothy J. Aiken, James C. Gallanis and Aiken &
Scoptur, S.C., Milwaukee, and oral argument by Timothy J. Aiken.

For the defendants-appellants there was a brief

by Christopher P. Riordan, Marianne Morris Belke and Crivello,
Carlson, Mentkowski & Steeves, S.C., Milwaukee, and oral argument
by Christopher P. Riordan.

2001 WI 60
NOTICE
This opinion is subject to further editing and
modification. The final version will appear
in the bound volume of the official reports.

IN SUPREME COURT

FILED

JUN 13, 2001

Cornelia G. Clark
Clerk of Supreme Court
Madison, WI

No.
99-0001
STATE OF WISCONSIN :

Norvin Lewis and Delores Lewis,
Plaintiffs-Respondents-
Petitioners,
v.
Physicians Insurance Company of
Wisconsin, Jay Seldera, M.D. and
Wisconsin Patients Compensation Fund,
Defendants-Appellants,
Lakeland Medical Center, The Dean Health
Plan, Inc. and Donna Shalala,
Defendants.

REVIEW of a decision of the Court of Appeals. Affirmed.

JON P. WILCOX, J. The issue in this case is whether
¶1
a surgeon can be vicariously liable for the negligence of two
hospital nurses who failed to count accurately the sponges used
in a surgical procedure. Because the plaintiff has not
presented a viable doctrine for imposing vicarious liability on
the surgeon under existing Wisconsin law and because we decline
to adopt the “captain of the ship” theory for Wisconsin, we

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conclude that the surgeon cannot be held vicariously liable for
the negligence of the two hospital nurses.
The plaintiff in this case, Norvin Lewis (Lewis),
¶2
asserted that the defendant, Jay Seldera, M.D. (Seldera), was
vicariously liable for the failure of two hospital nurses,
employed by Lakeland Medical Center (Lakeland) in Elkhorn,
Wisconsin, to count accurately the number of sponges used in
Lewis’ gallbladder surgery. As a result of their inaccurate
count, a sponge was left in Lewis’ abdomen. Lewis stipulated to
the fact that Seldera was not negligent. The Circuit Court for
Milwaukee County, Michael D. Goulee, Judge, awarded Lewis
$150,000, set off by $50,000 from his settlement with Lakeland.
The court of appeals reversed the circuit court’s decision.
For the following reasons, we now affirm the court of appeals’
ruling.

I
The parties have stipulated to the relevant facts.
¶3
Seldera removed Lewis’ gallbladder at Lakeland on November 8,
1993. During the surgery, Seldera packed off the gallbladder
with laparotomy1 pads (sponges). Nurses Patricia Vickery
(Vickery) and Ellen Chapman (Chapman) were in charge of counting
the sponges. Under Lakeland’s procedures, the nurses, not
Seldera, were responsible for counting the sponges and
overseeing the counting of the sponges. Indeed, Chapman, the

1 Laparotomy is an “[i]ncision in the loin.” Stedman’s
Medical Dictionary 840 (25th ed. 1990). Laparotomy pads are
sponges used to pack off an area in the loin or abdomen.

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“circulating nurse” assigned to the operation, had an
independent duty delineated in the administrative code to count
the sponges. See Wis. Admin. Code § HFS 124.13(7) (Oct., 2000)
(the “‘circulating nurse'” is “a registered nurse who is present
during
an
operation . . . who,
before
the
surgical
procedure . . . is completed, . . . ensures that the sponge,
needle and instrument counts have been done according to
hospital policy”). Both Vickery and Chapman were employed by
Lakeland, not Seldera. According to the medical records from
the surgery, Vickery and Chapman counted the number of sponges
used on four occasions and they thought that the correct number
of sponges had been collected at the end.
¶4
However, Lewis began to have problems and Seldera
operated again on January 30, 1994. During this second surgery,
a retained sponge was discovered. After this sponge was
removed, Lewis recovered. He then brought suit against Lakeland
and Seldera.
Prior to trial, Lakeland agreed that it was
¶5
responsible for the actions of its employees, Vickery and
Chapman. Because Lakeland was a county-owned hospital at the
time of the surgery, its liability for the negligence of Vickery
and Chapman was limited to $50,000. See Wis. Stat.
§ 893.80(3)(1993-94).2 After settling with Lakeland for the
maximum amount allowed under § 893.80(3), Lewis pursued this

2 All subsequent references to the Wisconsin Statutes are
to the 1993-94 version unless otherwise indicated.

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case against Seldera. In consideration for Seldera’s
stipulation to the above facts, Lewis dropped all claims except
for the allegation that Seldera could be held vicariously liable
for Vickery and Chapman’s negligence. Both parties moved for
summary judgment on the issue of whether Seldera could be so
held liable.
¶6
The circuit court issued an oral decision, finding “as
a matter of law, that [Seldera] is, in fact, responsible and
liable for the actions of the parties that were in the operating
room with him and working under his supervision.” The circuit
court maintained that the “doctor is the captain of the ship.
That the doctor is responsible for everything.” Seldera
appealed.
The court of appeals reversed the circuit court’s
¶7
ruling. Lewis v. Physicians Ins. of Wisconsin, 2000 WI App 95,
¶14, 235 Wis. 2d 198, 612 N.W.2d 389. Judge Fine, writing for
the court, rejected the argument that Seldera could be liable
for the negligence of the nurses by distinguishing our decision
in Fehrman v. Smirl, 25 Wis. 2d 645, 131 N.W.2d 314 (1964)
(Fehrman II)3, which held that two doctors could be held liable
for a single injury. Judge Fine further observed that “[n]o
appellate court in Wisconsin has used the ‘captain of the ship’

3 The same action reached this court in two separate cases:
Fehrman v. Smirl, 20 Wis. 2d 1, 121 N.W.2d 255 (1963) (Fehrman
I) and Fehrman v. Smirl, 25 Wis. 2d 645, 131 N.W.2d 314 (1964)
(Fehrman II). Although the underlying facts of the action were
set forth in our Fehrman I decision, Lewis relies on our
discussion of vicarious liability in Fehrman II.

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doctrine to impose liability in a medical malpractice case, and
the doctrine has generally lapsed into disuse elsewhere with the
passage of time.” Lewis, 2000 WI App 95, ¶13. Therefore, the
court of appeals declined to apply that doctrine to the present
case. Id.
Lewis subsequently appealed and this court accepted
¶8
his petition for review.

II
¶9
This case is before us on a grant of summary judgment.
Because the parties have stipulated to the facts, this appeal
only raises a question of law, which we review de novo. L.L.N.
v. Clauder, 209 Wis. 2d 674, 682, 563 N.W.2d 434 (1997).
¶10
At the outset, we note that Lewis is not contending
that Vickery and Chapman were employed by Seldera or that
Vickery and Chapman were “borrowed servants.”4 Nor is Lewis
contending that Seldera was responsible for counting the
sponges. Instead, this case turns on whether Seldera is
vicariously liable for the negligence of Vickery and Chapman
under our holding in Fehrman II or whether we adopt the “captain
of the ship” doctrine.
¶11
It is a basic principle of law, as well as common
sense, that one is typically liable only for his or her own
acts, not the acts of others.5 Nevertheless, the law in certain

4 We declined to discard the “borrowed servant rule” in
favor of the “dual liability approach” in DePratt v. Sergio, 102
Wis. 2d 141, 147, 306 N.W.2d 62 (1981).
5 Oliver Wendell Holmes, Jr., Agency 5 Harv. L. Rev. 1, 14
(1891). On this point, Holmes wrote:

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circumstances will impose “vicarious liability” on a non-
negligent party. Vicarious liability is “[l]iability that a
supervisory party (such as an employer) bears for the actionable
conduct of a subordinate or associate (such as an employee)
because of the relationship between the two parties.” Black’s
Law Dictionary 927 (7th ed. 1999). There is a tension, then,
between the basic principle of individual responsibility under
the law on the one hand and the imposition of vicarious
liability on an innocent party for a tortfeasor’s acts on the
other hand. Because vicarious liability is a severe exception
to the basic principle that one is only responsible for his or
her own acts, we proceed with caution when asked to impose
vicarious liability on an innocent party, doing so only in
accordance with well-settled law.
¶12
One well-settled doctrine for imposing vicarious
liability is respondeat superior, which allows a non-negligent
employer to be held liable for an employee’s actions. See
Shannon v. City of Milwaukee, 94 Wis. 2d 364, 370, 289 N.W.2d
564 (1980) (“Under the doctrine of respondeat superior an
employer can be held vicariously liable for the negligent acts

I assume that common-sense is opposed to making one
man pay for another man’s wrong, unless he actually
has brought the wrong to pass according to the
ordinary canons of legal responsibility,——unless, that
is to say, he has induced the immediate wrong-doer to
do acts of which the wrong, or, at least, wrong, was
the natural consequence under the circumstances known
to the defendant.

Id.

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of his employees while they are acting within the scope of their
employment.”). Respondeat superior is perhaps the most familiar
context in which vicarious liability is imposed. It arises due
to the employer’s control or right of control over the employee;
because of this control or right of control, the negligence of
the employee is imputed to the employer in certain
circumstances. Arsand v. City of Franklin, 83 Wis. 2d 40, 46,
264 N.W.2d 579 (1978); Wis JI——Civil 4030 (1994). Indeed, in
the present case, the hospital admitted that it could be held
vicariously liable for the negligence of the two nurses under
the doctrine of respondeat superior. Lewis, however, does not
argue that Seldera is vicariously liable for the negligence of
Vickery and Chapman under the doctrine of respondeat superior;
instead, he contends that Seldera is vicariously liable under
our holding in Fehrman II or alternatively, under the “captain
of the ship” doctrine. We examine each of his theories for
imposing vicarious liability on Seldera in turn.
In Fehrman v. Smirl, 20 Wis. 2d 1, 6-7, 121 N.W.2d 255
¶13
(1963) (Fehrman I), the plaintiff’s surgeon, Smirl, asked
another surgeon, McDonnell, to assist with treating the
defendant after Smirl had removed the defendant’s prostate
gland. The plaintiff was injured during the course of this
treatment and filed an action against Smirl. Id. at 1-9.
During the jury’s deliberations, it raised a question regarding
Smirl’s responsibility relative to McDonnell’s responsibility.
Fehrman II, 25 Wis. 2d at 654. The circuit court responded that
Smirl “would be responsible for any failure upon the part of Dr.

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McDonnell to exercise such care and skill” and Smirl objected on
the ground that this response may have led the jury to impose
liability on him for negligence committed by McDonnell. Id. at
654-55. Justice Gordon, writing for the majority of this court,
but not agreeing with it on this issue, stated the majority’s
holding as such: “under the circumstances of this case, Dr.
Smirl either was in charge of the patient or was acting jointly
with Dr. McDonnell.” Id. at 656. Therefore, this court upheld
the circuit court’s response to the jury’s question. Id. Lewis
characterizes our holding in Fehrman II as imposing vicarious
liability on a doctor whenever the doctor continues to actively
care for and participate in the treatment of the patient. His
reading is too broad.
We begin our analysis of Fehrman II by recognizing
¶14
that this court’s holding on the issue of vicarious liability
was grounded in the particular facts presented. Id.
Importantly, we did not assert a new doctrine for imposing
vicarious liability. Instead, we merely approved of a response
to a question the jury raised during its deliberation regarding
Smirl’s responsibility relative to McDonnell’s responsibility.
Id. at 653-54. We decline to stretch Fehrman II to hold that
this court’s refusal to overturn a circuit court’s response to a
jury question created a new doctrine for imposing vicarious
liability.
Moreover, in Fehrman II we allowed the circuit court’s
¶15
response to stand in part because it was unclear whose

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negligence was the cause of the plaintiff’s injury.6 As noted,
Smirl was objecting “to the fact that under the court’s
instruction he was held responsible for the negligence which may
have been chargeable to Dr. McDonnell.” Id. (emphasis added).
Therefore, as the court of appeals commented, Fehrman II more
closely resembles the “alternative liability” case of Summers v.
Tice, 33 Cal.2d 80, 199 P.2d 1 (1948). There, two hunters
simultaneously and negligently shot in the direction of the
plaintiff, but it was unclear which bullet injured the
plaintiff. Id. at 2. Because this extraordinary fact pattern
made it impossible for the plaintiff to identify which hunter
caused his injury, the court determined that he could hold both
defendants liable. Id. at 4-5. Thus, the “alternative
liability” theory was born.
¶16
Without adopting the “alternative liability” theory,
we discussed the holding of Summers in Collins v. Eli Lilly Co.,
116 Wis. 2d 166, 342 N.W.2d 37 (1984) where the plaintiff sought
to impose liability on 17 drug companies because she was unable
to determine what specific drug company had made the particular

6 As this court observed in its discussion of res ipsa
loquitur, “[t]here was direct medical proof of negligence.”
Fehrman II, 25 Wis. 2d at 651. On that count, we held that the
defendant was entitled to an instruction on res ipsa loquitur
where an expert testified that “‘it is my opinion that this
result would not have occurred if [Smirl and McDonnell], or
either of them, or both, had been exercising the proper skill
and care and diligence that is expected of them in the
performance of this operation, suprapubic prostatectomy.'” Id.
Therefore, the jury could have found that both doctors breached
their duty of care, but only one doctor caused the plaintiff’s
injury.

No.

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drug that caused her injuries. Id. at 175. Although we
rejected the imposition of liability upon the 17 drug companies,
our discussion of “alternative liability” in Collins is
instructive. In discussing the rule of Summers, we wrote that
under alternative liability “when all defendants, although
acting independently, have breached a duty of care toward the
plaintiff but only one of them caused the injury, each defendant
must prove that he or she did not cause the plaintiff’s injury
or be jointly and severally liable with all other defendants.”
Id. at 183. The direct proof of negligence in Fehrman II,
presented to the jury with the res ipsa loquitur instruction,
indicates that both Smirl and McDonnell may have violated their
respective duties of care to the plaintiff, but only one
doctor’s actions may have caused his injury. 25 Wis. 2d at 650-
53. Our decision in Fehrman II then, while confined to its
facts, is more akin to this theory of alternative liability than
creating a “continuing active management” theory for imposing
vicarious liability.7 Consequently, Fehrman II does not support
Lewis’ new “continuing active management” theory.
Not only does Fehrman II fail to support Lewis’ new
¶17
theory, it is distinguishable from the instant case. In this
case, Seldera did not breach a duty to Lewis; instead, he
stipulated that Seldera was not negligent. In contrast, both

7 Given Justice Gordon’s equivocal statement of the court’s
specific holding on the issue of vicarious liability in Fehrman
II, we caution against relying on that language in the future.
See Fehrman II, 25 Wis. 2d at 656.

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Smirl and McDonnell in Fehrman II may have breached their duties
to the plaintiff. Id. at 656. Although in this case there was
clearly a breach of duty owed to Lewis, that duty was breached
by Vickery and Chapman, the nurses employed by the hospital.
Their duties were defined by hospital policy, not by Seldera.
Chapman’s duty, as the circulating nurse, was also defined by
the administrative code. See Wis. Admin. Code § HFS 124.13(7)
(Oct., 2000). In further contrast to Fehrman II where Smirl
selected McDonnell to assist with the surgery, the nurses here
were selected by Lakeland, not Seldera. Fehrman II, therefore,
is distinguishable from the present case and cannot be relied
upon to impose vicarious liability on Seldera under any theory.
¶18
Lewis, however, seeks support for his “continuing
active management” theory for imposing vicarious liability on
Seldera in the two cases cited by this court in Fehrman II,
Morrill v. Komasinski, 256 Wis. 417, 41 N.W.2d 620 (1950), and
Heimlich v. Harvey, 255 Wis. 471, 39 N.W.2d 394 (1949). In
Morrill, this court confronted the issue of whether three
doctors could be held jointly and severally liable for failing
to diagnose a broken arm properly. 256 Wis. 2d at 426. The
family doctor, Dr. Komasinski, objected to being held jointly
liable with a more experienced doctor, Dr. Bump, whom he called
to assist with the diagnosis and treatment of the plaintiff’s
broken arm. Id. We held that the “evidence amply supports the
findings of the jury.” Id. The evidence indicated that three
doctors, Dr. Komasinski, Dr. Bump, and a Dr. Wright, who was in
charge of taking the X rays, “examined the X rays together and

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decided upon the treatment to be administered.” Id. at 419.
The three doctors then “concluded that the arm should be placed
at right angles to the body with the forearm pointing straight
upward . . . .” Id. It was this diagnosis and treatment by all
three doctors that caused the plaintiff’s injury. Id. at 425.
Therefore, all three doctors were jointly and severally liable.
Id. at 426.
The central fact that distinguishes Morrill from the
¶19
instant case is that there the jury found negligence on the part
of all three doctors who acted in concert whereas here Lewis has
stipulated that Seldera was not negligent. There was no
imposition of vicarious liability in Morrill. Accordingly,
Morrill does not support the theory advanced by Lewis of
imposing vicarious liability when the non-negligent doctor
“continues active participation” in the patient’s case.
Likewise, Heimlich provides no assistance to Lewis.
¶20
There, the defendant, Dr. Harvey, objected to the imposition of
liability when the injury suffered by his patient may have been
inflicted through the course of treatment by his employee, Dr.
Baird, rather than by him. Heimlich, 255 Wis. 2d 471. Noting
that Dr. Harvey “testified that Dr. Baird worked for him for a
salary plus commission,” we rejected Dr. Harvey’s argument by
stating that “it appears to us as well as to the jury that [Dr.
Harvey] has completely acknowledged the acts of Dr. Baird to be
his own, which is a very good recognition of responsibility
under the familiar doctrine of respondeat superior.” Id. at
474-75. Thus, Heimlich was resolved under the well-settled law

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of respondeat superior and did not involve the creation of a new
doctrine for the imposition of vicarious liability.8
As a result, Lewis has not presented a viable doctrine
¶21
for imposing vicarious liability on Seldera under existing
Wisconsin law.9

III
¶22
Alternatively, Lewis asks this court to follow the
circuit court’s lead and adopt the “captain of the ship”

8 We observe that the evidence presented could have led the
jury to conclude that Dr. Harvey was jointly liable with Dr.
Baird because he followed Dr. Baird’s injection with another
injection at the next visit. Heimlich v. Harvey, 255 Wis. 471,
472, 39 N.W.2d 394 (1949). The expert testimony indicated that
the injections were the cause of the defendant’s injury. Id. at
473.

9 Lewis cites Bailey v. Sturm, 59 Wis. 2d 87, 93 n.4, 207
N.W.2d 653 (1973), as approving of his interpretations of
Fehrman II, Morrill v. Komansinski, 256 Wis. 2d 417, 41 N.W.2d
620 (1950), and Heimlich. He reads too much into this
collecting of cases, which does not create a new theory for
imposing vicarious liability on an innocent party. Furthermore,
in brief parentheticals, we characterized Fehrman II and Morrill
as joint liability cases and Heimlich as a case of respondeat
superior. Bailey 59 Wis. 2d at 93 n.4. Thus, our cursory
description of these three cases in Bailey is in accord with our
in-depth discussion above.

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doctrine in order to impose vicarious liability on Seldera.10
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

10 The concurrence breezily suggests that we avoid the
possible danger of running aground through analysis of the
“captain of the ship” theory for imposing vicarious liability.
Concurrence at ¶¶29-31. We agree that other jurisdictions have
wrestled with this theory for imposing vicarious liability,
which now lacks a solid agency law foundation due to the demise
of the charitable immunity doctrine. See Majority op. at ¶¶22-
24. Because of the difficulties presented by “captain of the
ship”, we also agree that it would be much easier, as the
concurrence seems to propose, to ignore this outdated theory and
engage in an unencumbered search for another theory to impose
vicarious liability on surgeons. Concurrence at ¶31. However,
as a court, we are confined to issues and arguments presented in
the case before us. Accordingly, it is necessary to address
“captain of the ship” because the circuit court premised
Seldera’s liability on it and Lewis argued it before us as an
alternative theory for imposing vicarious liability on Seldera.
We further agree with the concurrence that there are
hypotheticals——with the right facts——where vicarious liability
might perhaps be imposed through a theory of agency law such as
respondeat superior or borrowed servant. See Concurrence at
¶¶33-37. However, the present case is not such a hypothetical——
with the right facts——where vicarious liability might perhaps be
imposed on an individual through a theory of agency law such as
respondeat superior or borrowed servant. This court only
decides cases with real disputes arising from events that
actually took place.

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jurisdictions.11 Lewis, 2000 WI App 95, ¶13. Because “captain
of the ship,” which enabled plaintiffs to recover in the face of
a hospital’s “charitable immunity,” is an antiquated doctrine

11 Pennsylvania, which first raised the “captain of the
ship” doctrine in McConnell v. Williams, 65 A.2d 243 (Pa. 1949),
has since rejected it in Tonsic v. Wagner, 329 A.2d 497, 499-501
(Pa. 1974), and Thomas v. Hutchinson, 275 A.2d 23, 27-28 (Pa.
1971), because of the demise of charitable immunity. Other
jurisdictions declining to adopt the doctrine or abrogating it
include: Iowa in Tappe v. Iowa Methodist Med. Ctr., 477 N.W.2d
396, 402-403 (Iowa 1991) (noting that “captain of the ship” is
not in accord with modern practice and refusing to adopt it);
New Jersey in Sesselman v. Muhlenberg Hosp., 306 A.2d 474, 476
(N.J. Super. Ct. App. Div. 1973) (rejecting “captain of the
ship” doctrine); North Dakota in Nelson v. Trinity Med. Ctr.,
419 N.W.2d 886, 892 (N.D. 1988) (overruled by statute on other
grounds) (limiting “captain of the ship” to cases where the
doctor has “direct control” over the nurses actions); Ohio in
Baird v. Sickler, 433 N.E.2d 593, 595 (Ohio 1982) (refusing to
“breathe[] new life into that now prostrate doctrine”); Oregon
in May v. Broun, 492 P.2d 776, 780-81 (Or. 1972) (acknowledging
that changes in the operating room have made it impossible for
the surgeon to directly supervise all personnel and therefore
concluding that “captain of the ship” is no longer viable with
the demise of charitable immunity); Tennessee in Parker v.
Vanderbilt Univ., 767 S.W.2d 412, 415 (Tenn. Ct. App. 1988)
(asserting that the term “captain of the ship” is confusing and
unnecessary); Texas in Sparger v. Worley Hosp., Inc., 547 S.W.2d
582, 585 (Tex. 1977) (disapproving of “captain of the ship” as a
“false special rule of agency”); and West Virginia in Thomas v.
Raleigh Gen. Hosp., 358 S.E.2d 222, 224-25 (W. Va. 1987)
(observing that the “majority of states which are now
considering the captain of the ship doctrine are rejecting it”
and rejecting the doctrine for West Virginia). See also Stephen
H. Price, J.D., The Sinking of the “Captain of the Ship”:
Reexamining the Vicarious Liability of an Operating Surgeon for
the Negligence of Assisting Hospital Personnel, 10 J. Legal Med.
323, 331-47 (1989) (reviewing the abandonment of the “captain of
the ship” doctrine in light of a more modern view of the
hospital as a health care provider rather than a mere “conduit
for delivery of medical services”).

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that fails to reflect the emergence of hospitals as modern
health care facilities, we decline to adopt it now.
The “captain of the ship” doctrine is an outgrowth of
¶23
the largely defunct “charitable immunity” doctrine, which
granted immunity to most hospitals prior to 1940.12 See Kojis v.
Doctors Hosp., 12 Wis. 2d 367, 372, 107 N.W.2d 131 (1961)
(discarding the “charitable immunity” doctrine in Wisconsin).
To provide some form of recovery for plaintiffs in the face of
“charitable immunity,” the “captain of the ship” doctrine
enabled them to hold a doctor liable for the negligence of
assisting hospital employees. Courts reasoned that charitable
hospitals of the late nineteenth century and early twentieth
century lacked the financial wherewithal to survive a negligence
action against their employees relative to the doctors who
conducted surgery on their premises.13
But now, as numerous commentators have observed,
¶24
modern health care facilities are in a better position to
protect patients against negligence from their employees and

12 Kenneth S. Abraham & Paul C. Weiler, Enterprise Medical
Liability and the Evolution of the American Health Care System,
108 Harv. L. Rev. 381, 385 (1994)(explaining the advent of the
charitable immunity doctrine and heralding its demise).
13 See 1 Barry R. Furrow et al., Health Law 379 (2d ed.
2000) (recounting that the reasoning supporting charitable
immunity was that “a single large judgment could destroy a
hospital” and that “[l]iability insurance was not generally
available to cover a hospital’s risk exposure”).

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insure against the corresponding liability.14 See id.
(acknowledging that modern charitable hospitals “are now larger
in size, better endowed, and on a more-sound economic basis” and
that “[i]nsurance covering their liability is available and
prudent management would dictate that such protection be
purchased”). Over the last 60 years, hospitals have become
increasingly vital facilities for the delivery of health care.
We recognized this shift in Kashishian v. Port, 167 Wis. 2d 24,
38-39, 481 N.W.2d 277 (1992), where we confronted the issue of
whether a hospital could be held vicariously liable under the
doctrine of apparent authority for the allegedly negligent acts
of a doctor working at a hospital as an independent contractor.
In so doing, we observed that “[m]odern hospitals have spent
billions of dollars marketing themselves, nurturing the image
with the consuming public that they are full-care modern health
facilities.” Id. at 38. As full-care modern health facilities,
hospitals are no longer “‘mere structures where physicians
treated and cared for their patients.'” Id. at 42 (citations
omitted). We acknowledged the important role hospitals have in
our health care system and their advent as full-care modern
health care facilities when we stated:
In essence, hospitals have become big business,
competing with each other for health care dollars. As
the role of the modern hospital has evolved, and as

14 See Stephen H. Price, J.D., The Sinking of the “Captain
of the Ship”: Reexamining the Vicarious Liability of an
Operating Surgeon for the Negligence of Assisting Hospital
Personnel, 10 J. Legal Med. 323, 343-48 (1989).

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the image of the modern hospital has evolved (much of
it self-induced), so too has the law with respect to
the hospital’s responsibility and liability towards
those it successfully beckons. Hospitals not only
employ physicians, surgeons, nurses, and other health
care workers, they also appoint physicians and
surgeons to their hospital staffs as independent
contractors.
Id. at 38-39. We recognize the development of the modern
hospital as a health care delivery facility and the attendant
responsibilities this transition has entailed. Simply put,
“captain of the ship” has lost its vitality across the country
as plaintiffs have been able to sustain actions against full-
care modern hospitals for the negligence of their employees.15
Accordingly, we decline to resurrect the anachronistic
¶25
“captain of the ship” doctrine or create a new theory to enable
Lewis to impose vicarious liability on Seldera. Lewis, under
the current negligence law in Wisconsin, had a viable cause of
action against Lakeland. We are mindful of the harsh
consequence Lewis must endure because Lakeland, at the time of
the negligent sponge count, was a county hospital and therefore
its liability was capped at $50,000, which was insufficient to

15 We also note that the “captain of the ship” doctrine is
at odds with the corresponding diminishment of an individual
doctor’s control of the modern operating room that is caused by
increasing specialization and division of responsibility. See
Stephen H. Price, J.D., The Sinking of the “Captain of the
Ship”: Reexamining the Vicarious Liability of an Operating
Surgeon for the Negligence of Assisting Hospital Personnel, 10
J. Legal Med. 323, 340-41 (1989) (discussing the operating
surgeon’s loss of control over the operating room due to the
increase in hospitals providing essential medical services and
increasing sophistication and specialization of both medical
personnel and equipment, which improves patient care).

No.

99-0001

cover his damages of $150,000. See Wis. Stat. § 893.80(3).
While this is a troubling deficiency, it is the result of a
legislative policy decision, which may be supported by broader
considerations.16 These broader considerations include providing
full-care modern health care facilities to service citizens who
might otherwise not have access to such a facility.17 If we
circumvented this statute in order to impose liability on
Seldera, we would discourage doctors from working at government-
owned hospitals because they would incur the liability of the
hospital’s assisting employees, whom they had no hand in
selecting. To attach this nondelegable liability to doctors

16 In Sambs v. City of Brookfield, 97 Wis. 2d 356, 377, 293
N.W.2d 504 (1980), we commented on the need for legislative
balancing in the context of caps on liability for municipal
governments. There we wrote:
It is the legislature’s function to evaluate the
risks, the extent of exposure to liability, the need
to compensate citizens for injury, the availability of
and cost of insurance, and the financial condition of
the governmental units. It is the legislature’s
function to structure statutory provisions, which will
protect the public interest in reimbursing the victim
and in maintaining government services and which will
be fair and reasonable to the victim and at the same
time will be realistic regarding the financial burden
to be placed on the taxpayers.

Id.

17 See John Danaher, M.D., Health Care Perform:
Constituencies Necessary for Change, 3 Stan. L. & Pol’y Rev.
155, 157 (1991) (recognizing that the cost of health care for
the 37 million Americans who are uninsured is borne
predominantly by county hospitals or private hospitals as
uncompensated care or charity).

No.

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utilizing government-owned health care facilities would create a
disturbing dichotomy between government hospitals and private
hospitals, which do not attach such nondelegable liability to
doctors utilizing their facilities.18 Thereby we would induce
doctors to practice only at private hospitals, which are liable
for the full amount of damages a negligent employee may inflict
upon a patient.
Of course, patients can hold government-owned health
¶26
care facilities liable for the negligence of their employees
under respondeat superior, but, as noted, the legislature has
capped that liability at $50,000 per occurrence. In accordance
with principles of judicial restraint, we leave it to the
legislature to make any necessary policy adjustments. See
Doering v. WEA Ins. Group, 193 Wis. 2d 118, 132, 532 N.W.2d 432
(1995) (acknowledging “that drawing lines and creating
distinctions to establish public policy are legislative tasks”).
Therefore, while recognizing the unfortunate result in this
case, we must also remain cognizant of the legislative
balancing, which weighs the costs of individual unfairness
against the benefits of having government-owned health care

18 We take judicial notice of the fact that there are
currently 156 general and special hospitals in Wisconsin.
General and Special Hospitals Directory, Department of Health
and Family Services (2001). Excluding special psychiatric
hospitals, currently there are only three government-owned
facilities in Wisconsin at the present time: Memorial Hospital
of Lafayette County (id. at 12), Rusk County Memorial Hospital
(id. at 26), and University of Wisconsin Hospital and Clinic
Authority (id. at 29). Lakeland is now a voluntary nonprofit
corporation (id. at 14).

No.

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facilities where doctors are willing to provide health care to
all segments of the population. As a result, we believe it
would be shortsighted for this court to engage in judicial
lawmaking so that Lewis could impose vicarious liability on
Seldera and recover beyond the statutory maximum.
IV
¶27
In conclusion, we hold that Seldera cannot be held
vicariously liable for the negligence of Vickery and Chapman
under either Fehrman II or “captain of the ship.”
By the Court.—The decision of the court of appeals is
affirmed.

No. 99-0001.ssa

¶28 SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (concurring). 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.
¶29
First, it is a mistake for the majority opinion to
rely on the “captain of the ship” metaphor. This phrase has
taken on various meanings beyond the cases that spawned it.
The majority opinion defines the “captain of the ship”
¶30
doctrine merely as a theory of vicarious liability that is
“similar to respondeat superior.”1 The majority opinion does not
explain precisely what theory of liability it is rejecting when
it rejects a “captain of the ship” doctrine.
¶31
“Captain of the ship” cases can be analyzed as
applying
surgeon’s
the
of
concepts
agency
traditional
supervision and control.2 Let’s forget the picturesque language,
look at the facts of each case, and apply traditional principles
of tort and agency law.3

1 See majority op. at ¶22.
2 See, e.g., Franklin v. Gupta, 567 A.2d 524, 537 (Md. Ct.
App. 1990) (concluding that a careful analysis of “captain of
the ship” cases generally reveals that courts have applied
traditional agency concepts).
3 See Sparger v. Worley Hosp., Inc., 547 S.W.2d 582, 584
(Tex. 1977) (quoting Justice Frankfurter writing that “A phrase
begins life as a literary expression; its felicity leads to its
lazy repetition; and repetition soon establishes it as a legal
formula, undiscriminatingly used to express different and
sometimes contradictory ideas.”).

No. 99-0001.ssa

Second, it is a mistake to conclude from the decision
¶32
that a surgeon can never be held liable for the negligence of a
hospital nurse. This issue is not before the court. The
majority opinion carefully states what Lewis is and is not
contending. In particular, it states that Lewis is not relying
on the “borrowed servants” doctrine.4 The majority opinion’s
conclusion that “the surgeon cannot be held vicariously liable
for the negligence of the two hospital nurses” applies only to
the stipulated facts and narrow issues presented in this case.5
A surgeon can be vicariously liable for the negligence
¶33
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.

4 See majority op. at ¶10.
The court of appeals concluded that the surgeon did not
employ as borrowed servants those hospital nurses who were
negligent. The majority opinion makes no similar declaration.
If the hospital nurses were “borrowed employees” of the surgeon,
the surgeon was vicariously liable for their negligence. See
Borneman v. Corwyn Transp., Ltd., 219 Wis. 2d 346, 580 N.W.2d
253 (1998) (setting forth law of borrowed employees).
5 See majority op. at ¶¶1, 3, 9, 10, 19.

No. 99-0001.ssa

Third, it is a mistake to conclude from the decision
¶34
that a hospital procedure or the administrative code controls
the law of negligence or liability.
¶35
The majority opinion appears to rely on the hospital
procedure that the nurses have responsibility for counting and
overseeing the count of laparotomy pads and on the
administrative code that the circulating nurse ensures that the
counts have been done according to hospital procedure to absolve
the surgeon from liability. Reference to the hospital procedure
and administrative code may be misleading.
¶36
Regardless of what hospital procedure or the
administrative code says about a hospital nurse’s obligations, a
surgeon’s failure to exercise supervision and control over
hospital nurses might constitute negligence, and the nurses’
negligence might then be imputed to the surgeon. Under certain
circumstances, a fact-finder might conclude that a surgeon
should have, or did exercise, control or supervision. Hospital
procedure and the administrative code might constitute customary
medical practice, but customary medical practice does not
necessarily constitute reasonable due care in an action for
medical malpractice.6

6 The standard of reasonable care for a physician is that
degree of care, skill, and judgment that reasonable specialists
would exercise in the same or similar circumstances having due
regard for the state of medical science at the time the plaintiff
was treated. A doctor who fails to conform to this standard is
negligent. See Wis JI——Civil 1023 (1998). Evidence of the usual
and customary conduct of other physicians under similar
circumstances is ordinarily relevant and admissible as an

No. 99-0001.ssa

Furthermore, an issue raised at oral argument was
¶37
whether the duty to put in and remove the pads was a
nondelegable duty of the surgeon. The concept of nondelegable
duty is that the surgeon’s duty of due care cannot be delegated
and that the surgeon is liable for the negligence of the
hospital nurse even though the surgeon has done everything that
could be reasonably required of the surgeon. If the duty is
nondelegable, the person with the nondelegable duty is
vicariously liable.7 The parties have not briefed or argued this
theory of liability, and the majority opinion does not directly
address this issue.
¶38
For the reasons set forth, I write separately.
¶39
I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.

indication of what is reasonable care. See Nowatske v. Osterloh,
198 Wis. 2d 419, 438, 543 N.W.2d 265 (1996).
7 W. Page Keeton, et al., Prosser and Keeton on the Law of
Torts § 71, at 511-12 (5th ed. 1984).