Foster v. Englewood Hospital Ass'n

In Foster v. Englewood Hospital Ass'n, 19 Ill. App. 3d 1055, 313 N.E.2d 255 (1974), the plaintiff brought a wrongful death action against a hospital, a nurse, and the co-executors of the estate of the doctor who operated on the plaintiff's decedent. The evidence showed that the decedent died because the nurse failed to anesthetize him properly. The trial court entered judgments, based on jury verdicts, against the hospital and the nurse, but granted a judgment n.o.v. for the doctor's estate. Foster, 19 Ill. App. 3d at 1057. In reviewing the judgment n.o.v. for the doctor's estate, the appellate court framed the issue as the "standard of conduct to be imposed on a surgeon when the negligent act that directly caused the injury was committed by a person employed by the hospital." Foster, 19 Ill. App. 3d at 1059. The court recognized that, under the "captain of the ship" doctrine, adopted in 20 other jurisdictions, a surgeon may be held liable for the negligence of an assisting nurse not in his employ if the negligent acts are done while the nurse is under the surgeon's direct control or supervision. Foster, 19 Ill. App. 3d at 1059. However, following Olander, the court rejected either "a rule making a surgeon liable for every negligent act of every hospital employee under his control" or "a rule exculpating him for every negligent act of persons under his control." Foster, 19 Ill. App. 3d at 1063. Instead, the court held that, "if a surgeon retains supervision or control over other persons participating in an operation, he should be required to exercise that control with reasonable care." Foster, 19 Ill. App. 3d at 1061.