ATENEO DE DAVAO UNIVERSITY

COLLEGE OF LAW
Jacinto St., Davao City

AD HOS NAUCLERUS
(An Integrative and Comprehensive Paper on Captain of the Ship Doctrine)

In partial fulfillment of the requirements in Legal Medicine

Submitted To:

Atty. Maria Teresa Yu-Panes, M.D.

Legal Medicine Professor

Submitted By:

Alona Suzell B. Ruyeras

LLB 4-Manresa

Date Submitted:

November 29, 2017

 TABLE OF CONTENTS

TOPIC PAGE
Preface 2
The Fundamentals of The Captain of The Ship Doctrine 3

Jurisprudential History (U.S.) - Cases that applied the 8

Doctrine
Jurisprudential History (Philippines) - Cases that applied 10
the Doctrine
Jurisprudential History (U.S.) - Cases that abandoned the 14
Doctrine
Alleged Alternative Recourse - Other Sources of Liability 20
Related to Captain of the Ship Doctrine
Ad Hos Nauclerus: Is the Captain of the Ship Doctrine Still 26
Relevant These Days
Appendix 29

1
 PREFACE

“The Hippocratic Oath mandates physicians to give primordial consideration to

the health and welfare of their patients. If a doctor fails to live up to this precept,
he is made accountable for his acts. A mistake, through gross negligence or
incompetence or plain human error, may spell the difference between life and
death. In this sense, the doctor plays God on his patient’s fate.”
~Introductory Note in Ramos vs. Court of Appeals, 1999

Ad Hos Nauclerus is the Latin word for “Captain of The Ship”.

This paper is an integrative discussion on the Captain of the Ship

Doctrine. Being a comprehensive compilation and synopsis of the several years
of research work of the students of this reputable institution, this write-up seeks
to simplify and summarize the definition, history, jurisprudential basis,
applicability, related concepts and current relevance of the said doctrine in a
tabular approach.

Ad Hos Nauclerus aims to facilitate the readers in understanding this well-

renowned doctrine in the field of medicine.

The creator of this write-up will also give her humble submission at the
end of this work as to her stand on the current applicability and the proposed
elements that she believes should be present before this doctrine is made
applicable.

2
 THE FUNDAMENTALS OF THE CAPTAIN OF
THE SHIP DOCTRINE
Jurisprudence will tell us that this doctrine is
WHO?
applicable to the surgeon in the operating room.1
(Who are the parties However, according to Atty. Rodel V. Capule, M.D.,
involved in this FPCP, the Captain of the Ship doctrine is not only
doctrine?) applicable to surgeons but to the primary physicians
as well. This is because the primary physician being
a lead physician is the one who admits a patient in
the hospital and is also the one who decides whether
a consultation with a specialist is needed or not. In
this case, the lead physician is responsible for all the
phases of the treatment plan, including the provision
of a “good specialist.”2

The Captain of the Ship Doctrine has been

WHAT?
introduced into the medical profession to address
(What does the the problem as to who is to be held liable for the
doctrine mean?) injury suffered by the patient during a surgical
operation. This doctrine states that the surgeon is
the one ultimately responsible for the care of the
patient and that his mere presence in the operating

1
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians of the minors, ROMMEL
RAMOS, ROY RODERICK RAMOS and RON RAYMOND RAMOS, petitioners, vs. COURT OF APPEALS, DELOS SANTOS
MEDICAL CENTER, DR. ORLINO HOSAKA and DRA. PERFECTA GUTIERREZ, respondents.[G.R. No. 124354. December
29, 1999]
2
Capule, Rodel. "A Surgeon Is Not Always the "Captain of the Ship"" Philippine Journal of Internal Medicine 49.2
(2011). Philippine College of Physicians. Philippine College of Physicians. Web. 25 Aug. 2015.
<http://www.pcp.org.ph/images/stories/pjim_49/issue2_apr-jun2011/0_IV-VLegal_Prescription.pdf>

3
 room makes him responsible for everyone‘s
negligence.3

The surgeon is likened to a master of the vessel who

is in ultimate command of the vessel and its safety
and efficient operation. As "the captain of the ship,"
the surgeon is directly responsible for an alleged
error or act of alleged negligence because he or she
controls and directs the actions of those in
assistance.4

The captain of the ship doctrine is an application of

the Borrowed Servant Principle applied in the
operating room. This was developed under the
premise that, ―the servant directed or permitted by
his master to perform services for another may
become the servant of such other in performing the
services. He may become the other‘s servant as to
some acts and not others.5

Also, the Captain of the Ship Doctrine is a doctrine

which is encompassed by the Doctrine of Vicarious
Liability. Vicarious liability refers to “the
responsibility of a person, who himself is not

3
Nonato (2013). The Abandonment of the Captain of the Ship Doctrine In Light of Recent Developments in
Philippine Surgery In The Context of The Operating Room. Ateneo Law Journal (58):507
4
Solis, Pedro. "Other Legal Principles or Doctrines Applied in Medical Malpractice Cases." Medical Jurisprudence:
The Practice of Medicine and the Law. Revised ed. 1988. 232
5
Restatement (Second) of Agency §227 (1957)

4

WHEN?
(When is it applied?
Correspondingly, when inside the body of a patient, a hospital’s resident
is it not applied?)
negligent, for the wrongful conduct or negligence of
another.”6
Examples of cases where the courts found that the
doctrine may apply include cases in which a
hospital’s resident physician left a foreign object
physician was negligent in the administration of
anesthesia, a hospital employee was negligent in the
administration of the wrong type of blood, a
hospital’s resident physician and a junior intern were
negligent in administering penicillin to a patient who
was allergic to the drug, and a hospital nurse was
negligent in placing hot water bottles to a patient’s
feet during the course of an operation.

Cases where the doctrine has not been applied

include circumstances where the surgeon is himself
negligent, like where a surgeon is held liable for the
improper positioning of a patient before surgery, for
leaving the operating room before a patient is
stabilized, for selecting an anesthesia care provider
who is not properly qualified, for failing to notice that
a patient was not getting enough oxygen, and for
failing to take appropriate action in the face of an
anesthesia emergency.
The doctrine was coined in McConnel v. Williams,
WHERE?
361 Pa. 355, 65 A.2d 243, 246 (1949), in which the
(Where did it Supreme Court of Pennsylvania ruled that, "it can

6
Solis, Pedro. "Other Legal Principles or Doctrines Applied in Medical Malpractice Cases." Medical Jurisprudence:
The Practice of Medicine and the Law. Revised ed. 1988. 232

5
originate?) readily be understood that in the course of an
operation in the operating room of a hospital, and
until the surgeon leaves that room at the conclusion
of the operation... he is in the same complete charge
of those who are present and assisting him as in the
captain of a ship over all on board, and that such
supreme control is indeed essential in view of the
high degree of protection to which an anesthetized,
unconscious patient is entitled...".7

An outgrowth of the Charitable Immunity doctrine,

WHY?
the Captain of the Ship Doctrine was introduced to
(Why did the doctrine provide remedy for patients who suffered injuries in
become necessary?) view of the immunity of charitable hospitals. This
charitable immunity of hospitals was established
since most hospitals during the 1940s were
charitable institutions that are largely dependent on
donors and unlikely to financially survive a
8
negligence action.

“Charitable Immunity” is a legal doctrine which holds

that a charitable organization is not liable
under tort law. It originated in 19th-century Great
Britain.9

Thus, in order not to leave the victims of medical

malpractice who cannot be compensated by

7
Capule, 2011
8
Cezar Sangco, Philippine Law on Torts and Damages xxxi – xxxii (1993 ED.)
9
Marci Hamilton (November 29, 2007). "How the Push for Religious Accommodation Can Go Too Far: Two
Important Recent Examples”

6
hospitals run by charitable institutions, the law gives
him recourse to the medical practitioner who led the
team (i.e. the surgeon or primary physician), one of
the members of which was the cause of his injury.

7
 JURISPRUDENTIAL HISTORY (U.S.)
Cases that applied the Doctrine

McConnell vs. The Doctrine of the Captain of the Ship was first
Williams10 introduced in American jurisprudence. The Supreme
(1949) Court of Pennsylvania used an analogy from
Maritime Law wherein it establishes that the captain
is liable for the actions of his crew.

In the said case, the surgeon was made responsible

for the negligent act of a hospital intern. The latter
negligently injured a new born baby as the surgeon
was busy with the caring for the mother. The issue in
that case was whether or not the intern can be
considered a servant or employee of the surgeon,
and ultimately making the latter liable for the
negligent act of the former. As stated in the ruling of
the case:

“…in the course of an operation in the operating

room of a hospital, and until the surgeon leaves that
room… he is in the same complete charge of those
who are present and assisting him as is the captain
of a ship over all on board, and that such supreme
control is indeed essential in view of the high degree
of protection to which an anesthesized, and
unconscious patient is entitled.”
Benedict vs. In this case, the surgeon was held liable where a
nurse negligently burned the patient during the

10
65 A. 2d 243, 246 (U.S.)

8
 Bondi11 course of the operation.

(1956)
Yorston v. The doctrine was used to affirm a jury verdict
against a doctor who permitted a resident intern to
Pennell12
operate in his stead when the patient was injured
(1959) through the failure of others to inform either the
intern or the doctor of the patient's allergy to
penicillin.

11
384 Pa. 574, 122 A.2d 209
12
397 Pa. 28, 153 A.2d 255

9
 JURISPRUDENTIAL HISTORY (Philippines)
Cases that applied the Doctrine

Ramos vs. Court The Captain of the Ship Doctrine was first introduced
of Appeals13 by the Supreme Court in the Philippines in the case
(1999) of Ramos vs. Court of Appeals where the patient,
Erlinda, remained in a comatose condition and later
on died after an operation conducted by the
surgeon, Dr. Hosaka, and the anesthesiologist, Dr.
Gutierrez.

The facts showed that Dr. Gutierrez made a faulty

intubation of the patient in the process of
administering anesthesia.

The Supreme Court held Dr. Hosaka liable under the

Captain of the Ship Doctrine. Thus:

“As the so-called "captain of the ship," it is the

surgeon's responsibility to see to it that those under
him perform their task in the proper manner.
Respondent Dr. Hosaka's negligence can be found in
his failure to exercise the proper authority (as the
"captain" of the operative team) in not determining if
his anesthesiologist observed proper anesthesia
protocols. In fact, no evidence on record exists to
show that respondent Dr. Hosaka verified if
respondent Dra. Gutierrez properly intubated the
patient.

13
G.R. No. 124354. December 29, 1999

10
 Furthermore, it does not escape us that respondent
Dr. Hosaka had scheduled another procedure in a
different hospital at the same time as Erlinda's
cholecystectomy, and was in fact over three hours
late for the latter's operation. Because of this, he had
little or no time to confer with his anesthesiologist
regarding the anesthesia delivery. This indicates
that he was remiss in his professional duties towards
his patient. Thus, he shares equal responsibility for
the events which resulted in Erlinda's condition.”
Ramos vs. Court In a motion for reconsideration of the same case of
of Appeals14 Ramos, the Supreme Court upheld the application of
(2002) the doctrine stating that:
Motion for
Reconsideration “That they were working as a medical team is
evident from the fact that Dr. Hosaka was keeping an
eye on the intubation of the patient by Dr. Gutierrez,
and while doing so, he observed that the patient’s
nails had become dusky and had to call Dr.
Gutierrez’s attention thereto. The Court also notes
that the counsel for Dr. Hosaka admitted that in
practice, the anesthesiologist would also have to
observe the surgeon’s acts during the surgical
process and calls the attention of the surgeon
whenever necessary in the course of the treatment.
The duties of Dr. Hosaka and those of Dr. Gutierrez
in the treatment of petitioner Erlinda are therefore
not as clear-cut as respondents claim them to be. On

14
G.R. No. 124354. April 11, 2002

11
 the contrary, it is quite apparent that they have a
common responsibility to treat the patient, which
responsibility necessitates that they call each
other’s attention to the condition of the patient while
the other physician is performing the necessary
medical procedures.”
Professional In this case, two pieces of gauze were left inside the
patient‘s body after an anterior resection surgery
Services, Inc. vs.
conducted by Dr. Ampil and hysterectomy
15
Agana conducted by Dr. Fuentes at the recommendation of

(2007) the former.

Here, the Supreme Court again applied the doctrine

stating that it was Dr. Ampil was the lead surgeon
and he took over the operation after Dr. Fuentes left
and ordered the incision be closed notwithstanding
that two pieces of gauze remained unaccounted for
that caused injury to the patient‘s body. Clearly, the
control and management of the thing which caused
the injury was in the hands of Dr. Ampil, not Dr.
Fuentes.

Under the "Captain of the Ship" rule, the operating

surgeon is the person in complete charge of the
surgery room and all personnel connected with the
operation. Their duty is to obey his orders. This
doctrine is applied whether the surgeon is in fact
negligent or not.

Cantre vs. Sps. In this case, the patient suffered a burn in the inner

15
G.R. No. 126297. January 31, 2007

12
 Go16 portion of her left arm caused by the droplight
employed by Dr. Cantre to warm the patient and her
(2007)
baby. In her defense, Dr. Cantre said that the injury
was caused by the blood pressure cuff.

The Supreme Court ruled that whether the injury was

caused by the droplight or the blood pressure cuff,
Dr. Cantre is still liable under the Captain of the ship
doctrine since these two instruments were under her
control.

16
G.R. No. 160889. April 27, 2007

13
 JURISPRUDENTIAL HISTORY (U.S.)
Cases that abandoned the Doctrine

Thomas v The case tackled the liability of Dr. Hutchinson, an

orthopedic surgeon, with respect to the surgical
Hutchinson17
sponge left in the body of plaintiff-patient due to the
(1971) negligence of three residents receiving specialized
training. The residents were employees of the
hospital but were chosen by the operating room
supervisor to assist Dr. Hutchinson in the medical
procedure. After Dr. Hutchinson performed the
surgery, he left the operating room and allowed the
residents to close the surgical incision and remove
the remaining sponges.

The Court held that the presumption of negligence

on the part of Dr. Hutchinson is at best a disputable
presumption such that the jury was made to
determine the whether the residents were, in fact,
deckhands of Dr. Hutchinson . It went on further to
explain that since the immunity previously enjoyed
by hospitals was already abandoned in several
rulings, the patient-victim is not anymore precluded
from seeking redress from the hospital. Thus, if the
medical personnel inside the operating room actively
assisting the surgeon is under the control of the
latter, he is a borrowed servant of the surgeon who
shall be made liable. Otherwise, it will be the
hospital, as employer, who will bear the vicarious

17
442 Pa. 118

14
 liability.

May v. Broun18 The Oregon Supreme Court refused to apply the

Doctrine whereby this action was brought by
(1972)
patients who suffered burns during the use of an
electrical cauterizing machine by another physician
during the defendant doctor‘s performing a
hemorrhoidectomy. The Court observed that
changes have also been occurring in the confines of
operating rooms. Surgeons are operating more and
more in a highly mechanized environment wholly
created by hospitals. Much highly technical
equipment, now considered necessary, is furnished
by the hospital and operated by personnel whom the
hospital hires and trains. As a result, in most
instances, a surgeon cannot actually have direct
supervision or control over such equipment and the
persons who operate it even when he is present, if
he is going to give the concentration and attention to
the surgery which his patient has the right to expect.
The case provides:

“First, --We reject the captain of the ship doctrine.

The trend toward specialization in medicine has
created situations where surgeons do not always
have the right to control all personnel within the
operating room. An assignment of liability based on a
theory of actual control more realistically reflects
the actual relationship which exists in a modern
operating room.

18
492 P.2d 776

15
 Second theory says that, “…xxx with the curtailment
or abolition of a hospital’s charitable government
immunity, by statue or juridical decision, an
expanded liability on the part of the surgeon is no
longer necessary. It can therefore be adduced, as
also reflected in a number of American articled and
journals on Captain of the Ship Doctrine in the US is
no longer applicable or has diminished its
applicability nowadays with the advent of
specialization and growth of medical science.”
Schwartz v. The patient suffered cardiac and respiratory arrest
while being given anesthesia by the anesthesiologist
Ghaly19
while under the supervision of the surgeon. The
(1982) North Dakota Supreme Court refused to apply the
Captain of the Ship Doctrine saying that the captain
of the ship doctrine under which a surgeon would
have the right to control the activities of an
anesthesiologist is contrary to the standard of
medical care testified to by all of the expert
witnesses, including those presented by Plaintiff,
and overlooks the fact that the surgeon and
anesthesiologist are both specialists with different
responsibilities, each responsible for care of the
patient within the realm of his own specialty. The
standard of care and its violation must ordinarily be
shown by expert testimony. To instruct the jury that
one should control the other would be contrary to
the evidence and error.

19
318 N.W.2d 294

16
 Thomas v. The West Virginia Supreme Court recognizes that most
states have now abolished the hospital charitable
Raleigh General immunity doctrine, which is the basis for the Captain of

Hospital20 the Ship Doctrine. The need for the doctrine gone, the
majority of states which are now considering the captain
(1982) of the ship doctrine are rejecting it. The trend toward
specialization in medicine has created situations where
surgeons do not always have the right to control all
personnel within the operating room. An assignment
of liability based on a theory of actual control more
realistically reflects the actual relationship which
exists in a modern operating room. The case
reiterated the discussion in May vs. Broun, to wit:

“First, --We reject the captain of the ship doctrine.

The trend toward specialization in medicine has
created situations where surgeons do not always
have the right to control all personnel within the
operating room. An assignment of liability based on a
theory of actual control more realistically reflects
the actual relationship which exists in a modern
operating room.

Second theory says that, “…xxx with the curtailment

or abolition of a hospital’s charitable government
immunity, by statue or juridical decision, an
expanded liability on the part of the surgeon is no
longer necessary. It can therefore be adduced, as
also reflected in a number of American articled and
journals on Captain of the Ship Doctrine in the US is

20
3318 N.W.2d 294

17
 no longer applicable or has diminished its
applicability nowadays with the advent of
specialization and growth of medical science.”
Franklin v. A medical malpractice case was filed due to the
absence of the anesthesiologist during the operation
Gupta21
and so the actual administration and monitoring of
(1990) the anesthesia to appellant fell to the nurse which
was unfortunate ineffective leading to injuries to the
patient. The Maryland Court absolved the surgeon
ruling the there was no evidence that the surgeon
actually exercised, or attempted to exercise, and
such supervision or control over the
anesthesiologist. A hospital, like any "master" or
employer, is liable under agency principles for the
negligence of its servants or employees. That would
include nurses, physicians, and other medical and
non-medical personnel employed by it. The said
Court again refused to apply the Captain of the Ship
Doctrine.

Lewis v. The Wisconsin Supreme Court talked the issue as to

whether a surgeon can be vicariously liable for the
Physicians Ins.
negligence of two hospital nurses who failed to count
22
Co. accurately the sponges used in a surgical

(2001) procedure. The Court refused to apply the Captain of

the Ship Doctrine. The Court reasoned that modern
health care facilities are in a better position to
protect patients against negligence from their
employees and insure against the corresponding
liability. It acknowledges that hospitals have become

21
567 A.2d 524
22
243 Wis.2d 648

18
big business, competing with each other for health
care dollars. As the role of the modern hospital has
evolved, and as 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.

19
 ALLEGED ALTERNATIVE RECOURSE
Other Sources of Liability Related to
Captain of the Ship Doctrine
Republic Act of The Medical Act of 1959 prescribes the administrative
2382 liability and the grounds thereof for medical practitioners.
(The Medical Act
of 1959) After obtaining a Certificate of Registration, a licensed
Physician is expected to uphold the standards of his
practice. If he fails to live up to such standard, the law itself
provides for reprimand, revocation, and suspension of his
Certificate.

Section 24 of RA 2382 provides:

Section 24. Grounds for reprimand, suspension or

revocation of registration certificate. Any of the following
shall be sufficient ground for reprimanding a physician, or
for suspending or revoking a certificate of registration as
physician:
(1) Conviction by a court of competent jurisdiction of
any criminal offense involving moral turpitude;
(2) Immoral or dishonorable conduct;
(3) Insanity;
(4) Fraud in the acquisition of the certificate of
registration;
(5) Gross negligence, ignorance or incompetence in
the practice of his or her profession resulting in an injury to
or death of the patient;
(6) Addiction to alcoholic beverages or to any habit

20
 forming drug rendering him or her incompetent to practice
his or her profession, or to any form of gambling;
(7) False or extravagant or unethical advertisements
wherein other things than his name, profession, limitation
of practice, clinic hours, office and home address, are
mentioned.
(8) Performance of or aiding in any criminal abortion;
(9) Knowingly issuing any false medical certificate;
(10) Issuing any statement or spreading any news or
rumor which is derogatory to the character and reputation
of another physician without justifiable motive;
(11) Aiding or acting as a dummy of an unqualified or
unregistered person to practice medicine;
(12) Violation of any provision of the Code of Ethics
as approved by the Philippine Medical Association.
Refusal of a physician to attend a patient in danger of
death is not a sufficient ground for revocation or
suspension of his registration certificate if there is a risk to
the physician's life.

As a profession imbued with public interest, it is within the

State’s duty to regulate admission into and practice of the
medical profession.
Negligence Per Negligence per se is failure to observe that care which an
Se ordinarily prudent man would observe, and when the state
regards certain acts so liable to injure others as to justify
their absolute prohibition, doing the forbidden act is a
breach of duty with respect to those who may be injured
thereby.23

23
Teague v. Fernandez G.R. No. L-29745, June 4, 1973

21
 Culpa Article 1170 of the New Civil Code provides:
Contractual Those who in the performance of their obligations are
guilty of fraud, negligence, or delay, and those who in any
manner contravene the tenor thereof, are liable for
damages.

Moreover, Article 1173 of the same law provides:

The fault or negligence of the obligor consists in the
omission of that diligence which is required by the nature
of the obligation and corresponds with the circumstances
of the persons, of the time and of the place. x x x

Surgeons, upon being engaged for their services in the

operating room, are bound by contract to exercise the
standard of care expected from their specialized
profession. The contractual relationship between the
patient and the surgeon is distinct from those entered into
by the former with other specialists whose expertises are
required in the operating room.24
Quasi-Delict Article 2176 of the Civil Code provides:
Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the
damage done.
Respondeat Under this doctrine, it does not require any negligence
Superior from the surgeon who is at the same time the employer of
the person directly responsible. The surgeon is vicariously
liable for the acts of his or her employees when the same
are performed within the scope and course of their
employment. Liability under this doctrine is based on the

24
Ateneo Law Journal www.ateneolawjournal.com/Media/uploads/fe18eedd70be90cfc795c299ff7f7810.pdf

22
 surgeon‘s relationship with the wrongdoer. An employer-
employee relationship must be present at the time of the
commission of the negligent act.25
Res Ipsa The doctrine of res ipsa loquitur allows the mere existence
Loquitor of an injury to justify a presumption of negligence on the
part of the person who controls the instrument causing the
injury, provided that the following requisites concur:

a) The accident is of a kind which ordinarily does not occur

in the absence of someone‘s negligence;
b) It is caused by an instrumentality within the exclusive
control of the defendant or defendants; and
c) the possibility of contributing conduct which would
make the plaintiff responsible is eliminated.26

Res ipsa loquitor, which literally means that the thing

speaks for itself, states that where the thing which causes
the injury is shown to be under the management of the
defendant and the accident is such as in the ordinary
course of things does not happen if those who have the
management use proper care, it affords reasonable
evidence, in the absence of an explanation by the
defendant, that the accident arose from the want of care.27
Agency Agency by estoppel is defined as one created by operation
relationship of law and established by proof of such acts of the
principal as reasonably lead third persons to the
conclusion of its existence. Arises where principal by
negligence in failing to supervise agents affairs, allows

25
The Brad Hendricks Law Firm, Medical Negligence Information Center
26
Cantre v. Spouses Go, G.R. No. 160889, April 27, 2007
27
Ma-ao Sugar Central Co., Inc. v. Court of Appeals, 189 SCRA 88, 92 (1990)

23
 agent to exercise powers not granted to him, thus justifying
others in believing the agent possesses requisite
authority.28
Criminal Under the Revised Penal Code:
Negligence
ART. 365. Imprudence and negligence. — Any person who,
by reckless imprudence, shall commit any act which, had it
been international, would constitute a grave felony, shall
suffer the penalty of arresto mayor in its maximum period
to provision correccional in its minimum period; if it would
have constituted less grave felony, the penalty of arresto
mayor in its minimum and period shall be imposed.

Any person who, by simple imprudence or negligence,

shall commit an act which would otherwise constitute a
grave felony, shall suffer the penalty of arresto mayor in its
medium and maximum periods; if would have constituted a
less serious felony, the penalty of arresto mayor in its
minimum period shall be imposed.

When the execution of the act covered by this article shall

have only resulted in damages to the property of another,
the offender value of said damages to three times such
value, but which shall in no case be less than 25 pesos.

A fine not exceeding 200 pesos and censure shall be

imposed upon any person who, by simple imprudence or
negligence, shall cause some wrong which, if done
maliciously, would have constituted alight felony.
Doctrine of Apparent authority, or what is sometimes referred to as the
Apparent "holding out" theory, or doctrine of ostensible agency or

28
Black’s Law Dictionary

24
 Authority agency by estoppel, has its origin from the law of agency. It
imposes liability, not as the result of the reality of a
contractual relationship, but rather because of the actions
of a principal or an employer in somehow misleading the
public into believing that the relationship or the authority
exists. The concept is essentially one of estoppel and has
been explained in this manner.29
Doctrine of Corporate Responsibility is another sound basis in holding
Corporate the hospital liable in case the patient suffers in the hands of
Negligence a negligent medical practitioner.

In case of PSI vs. Natividad30, the Court took note of the

plaintiff’s allegation that Medical City Hospital "did not
perform the necessary supervision nor exercise diligent
efforts in the supervision of Drs. Ampil and Fuentes and its
nursing staff, resident doctors, and medical interns who
assisted Drs. Ampil and Fuentes in the performance of
their duties as surgeons.”

Such lack of supervision was proved during trial and

pronounced by the Court as corporate negligence which is
a basis for finding Medical City Hospital liable.

This doctrine is a far cry from the charitable immunity

which was the precedent of the captain of the ship
doctrine.

29
PSI v Natividad, G.R. No. 126297, January 31, 2007
30
Ibid.

25
 AD HOS NAUCLERUS:
IS THE CAPTAIN OF THE SHIP DOCTRINE
STILL RELEVANT THESE DAYS?

It is worthy to note that unlike the U.S., Philippines has not yet abandoned
the Captain of the Ship Doctrine. In Ramos v. CA31 the Supreme Court affirmed
the continued applicability of the doctrine despite of its abandonment in US
jurisprudence. In that case, the Supreme Court held that there being a trend in
American jurisprudence to do away with the Captain-of-the-Ship doctrine does
not mean that the Court will ipso facto follow said trend. To clarify, it is true that
in the 2010 case of Spouses Bontilao v. Gerona32, the court declared that the
lead surgeon did not fail to observe the required standard of care, hence, he
cannot be held liable for damages caused by the anesthesiologist’s negligence.
However, the inapplicability of the Captain of the Ship Doctrine in the said case
did not amount to abandonment by the Philippine courts of such doctrine. There
was no categorical ruling in the case that such doctrine is no longer applicable
in this jurisdiction. This is unlike the recent cases in the U.S. which discusses
why the same doctrine should not be put to use anymore by the U.S. Courts [See
JURISPRUDENTIAL HISTORY (U.S.) - Cases that abandoned the Doctrine].

Advocates of the doctrine would argue that the doctrine ensures that the
victim of medical negligence will be compensated for any damage incurred from
the negligence of anyone from the medical team. Also, the doctrine increases
the precaution observed by medical practitioners, most especially the surgeon
or the primary physician, which is in consonance with their duties as covered by

31
G.R. No. 124354. April 11, 2002
32
G.R. No. 176675, September 15, 2010.

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their Hippocratic Oath33. It is but reasonable to put more burden upon the one
who heads the medical procedure since it is elementary that with greater power
and authority comes greater obligations and responsibilities.

Opponents of the doctrine, on the other hand, contend that the doctrine
gives undue advantage to the surgeon or primary physician by the mere fact that
he leads the team of medical practitioners, one or more members of which
caused injury to the patient. It is unfair for one who has not done any negligent
act to be liable for the negligence of another. Moreover, the specialization34
trend in the medical practice nowadays bolsters the fact that the surgeon would
not be competent to determine whether or not the members of the medical team
(e.g. another doctor) have properly made the procedure covered by the latter’s
area of specialization. Finally, the antagonists for this doctrine further the
argument that there are other doctrines that seem more equitable that can be
used (See ALLEGED ALTERNATIVE RECOURSE- Other Sources of Liability
Related to Captain of the Ship Doctrine) in order to make the medical
practitioners who truly were the cause of the injury liable.

It is the humble submission of the one who made this integrative and
comprehensive paper on the Captain of the Ship Doctrine that such principle is
still relevant nowadays. HOWEVER, THE COURT MUST LAY DOWN THE
ELEMENTS IN ORDER FOR SUCH DOCTRINE TO BE MADE APPLICABLE.
Certain requisites must be deemed complied with in order for the surgeon or
primary physician to be deemed liable for the transgressions of the other
medical personnel under his supervision. Being the surgeon or the primary
physician must not suffice for liability to attach. From the research work made
by the writer, here are the PROPOSED ELEMENTS of the Captain of the Ship
Doctrine:

33
See Appendix A
34
Specialization is the act of specializing, or pursuing a particular line of study or work
(http://dictionary.reference.com/browse/specialization)

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 • PROPOSED ELEMENTS OF THE CAPTAIN OF THE SHIP DOCTRINE:

a. There exists a team of medical practitioners headed by a surgeon or a

primary physician;
b. Such team conducted a medical procedure upon the patient-victim;
c. The patient-victim suffered an injury in the course of such medical procedure;
d. The injury was caused by any member or by members of the medical team
under the supervision of the surgeon or primary physician; and
e. The injury is of such nature that the same can be reasonably prevented by the
surgeon or primary physician had he fulfilled his duty of overseeing the medical
team using extraordinary diligence.

The above-mentioned proposed elements does away with the inequity of

making the surgeon or primary physician liable for matters totally beyond his
control and expertise. However, it still ensures the victim of the utmost care that
the surgeon or physician is bound to observe through requiring him to observe
extra-ordinary diligence not only in doing his own work but also in overseeing
the work of each and every member of the medical team.

In conclusion, it is high-time for the Supreme Court to lay down the proper
guidelines for the applicability of the Captain of the Ship Doctrine. Neither total
eradication nor blind adherence to the status quo or the present applicability of
the said principle will resolve the issues that the doctrine entails. This is a
concern that deserves further elucidation for the enlightenment not only of the
bench and the bar but also for our sister profession which is the field of
Medicine.

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 APPENDIX A
HIPPOCRATIC OATH

I swear to fulfill, to the best of my ability and judgment, this covenant...

I will respect the hard-won scientific gains of those physicians in whose steps I
walk, and gladly share such knowledge as is mine with those who are to follow.

I will apply, for the benefit of the sick, all measures which are required, avoiding
those twin traps of overtreatment and therapeutic nihilism.

I will remember that there is art to medicine as well as science, and that warmth,
sympathy, and understanding may outweigh the surgeon's knife or the chemist's
drug.

I will not be ashamed to say "I know not," nor will I fail to call in my colleagues
when the skills of another are needed for a patient's recovery.

I will respect the privacy of my patients, for their problems are not disclosed to
me that the world may know. Most especially must I tread with care in matters of
life and death, above all, I must not play at God.

I will remember that I do not treat a fever chart, a cancerous growth, but a sick
human being, whose illness may affect the person's family and economic
stability. My responsibility includes these related problems, if I am to care
adequately for the sick.

I will prevent disease whenever I can, for prevention is preferable to cure.

I will remember that I remain a member of society, with special obligations to all
my fellow human beings, those sound of mind and body as well as the infirm.

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If I do not violate this oath, may I enjoy life and art, respected while I live and
remembered with affection thereafter. May I always act so as to preserve the
finest traditions of my calling and may I long experience the joy of healing those
who seek my help.

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