The legal relationship between the surgeon and the anaesthetist

Abstract

The manner in which the surgeon and the anaesthetist develop an implied contract with the patient has been outlined. The prime contract is made with the surgeon as to the surgical procedure, and an independent collateral contract is developed with the anaesthetist as to the anaesthetic administration. The widely held belief that, in the general case, there is a legal or contractual relationship between the anaesthetist and surgeon is incorrect. The relationship between them is comprised of other factors. This is indicated in Figure 1. The relationship developed between them has always been decided on evidence, in each case coming to trial in the past; not as a matter of law, but on matters of fact. The legal background of negligence, including duty of care and the difference between direct and vicarious liability, has been considered. In contemplating vicarious liability the understanding of what is implied by "control" is crucial. As Friedman puts it: "Whether the physician exercises it or not, it is his right of control which may be the deciding factor on the issue of his liability" (57). Numerous judgments have been cited from Canadian, British, Australian, and American sources indicating that the surgeon and the anaesthetist are not liable for each other's acts and omissions. Although they are persons with a common purpose, serving a common patient, they work in highly expert fields, peculiar to each, and their responsibilities are not inextricably bound together. These citations indicate that there are no grounds for believing that there is, or ever was, a legal master-servant relationship between surgeon and anaesthetist. They further indicate that the notion that the surgeon delegates a duty with regard to anaesthesia to the anaesthetist is correct only where it applies to a nurse anaesthetist. If there were any substance to this concept, the surgeon would have been found liable in each of the cases cited since delegation of such a direct duty would not have extinguished the surgeon's duty of care. Thus, in the general case, the surgeon has neither a direct nor a vicarious responsibility with regard to anaesthesia. A number of other popular fallacies have been discussed in passing. Among these: the concept that the surgeon is responsible for everything that happens in the operating room; the concept that the anaesthetist is responsible for everything in the operating room, other than the surgical field, the notion that the physician's liability is limited to what he does with his own hands. An attempt has been made to discover the principles governing the disposition of responsibility between different members of the surgical team, in this connection, the question of disputation between surgeon and anaesthetist has been treated at some length. The authors disagree with Mushin's views as to the best manner to act if disagreement occurs, and venture to offer some advice of their own. We feel that if the legal responsibilities of surgeon and anaesthetist were more exactly appreciated than they are at present, the likelihood of argument would be diminished. If each duly appreciates that the other must not breach his own duty of care to the patient, an amicable working agreement can readily be achieved since neither is then likely to attempt to force the other into conduct contrary to his expressed professional opinion. It has been pointed out that if a physician chooses to accept, as an order, a demand which, in his professional judgment, is wrongful, he remains solely liable for his own acts or omissions. It will be no defence to plead that he committed the wrongful act under protest. In the future, as in the past, a surgeon expressing a preference for a particular anaesthetic technique is Lkely to find that a polite request, implying as it does, recognition of the anaesthetist's proper domain, will more likely meet with agreement than will a peremptory demand. This paper has dealt with the impersonal legal implications relating to a professional connexion of the closest sort. In practice, lit will not be their legal relationship, or rather the lack of it, which will chiefly govern the dealings between two physicians, but rather those other considerations which ordinarily regulate human affairs, and which bear on their mutual purpose. Each must, within his own field, fulfil his duty to the patient, as his own professional conscience shall dictate. The best interests of the patient will be secured, where each, m serving with the other, uses his professional skill in such manner as will best enable his colleague to perform his part of the task. Should one engage in undue harassment of a colleague, this happy alliance must necessarily falter in its purpose. © 1959 Canadian Anesthesiologists.