Setting Precedent: The Captain of the Ship Doctrine
Lawyer Jerome H. Ellis Esq. brings Class Action Suit changed the way things get done in every hospital and doctors office in the country. Yes you are protected now because of his efforts.
Jerome H. Ellis Esq. Former President of the Philadelphia Bar Association 1969 -70 a practicing attorney for 50 years. 2001 page 6 and 11
The Captain of the Ship Doctrine – Jerome H. Ellis, Philadelphia, for appellee
The Captain of the Ship Doctrine was originally set forth in McConnell v. Williams, 361 Pa. 355, 65 A.2d 243 (1949) and has agency considerations as its base. The essential question is whether one is subject to the control of another not only to the work to be done but also the manner of performing it. Furthermore, it has been consistently held that a physician may be simultaneously the agent of a hospital and another physician although the employment is not joint. Yorston v. Pennell, 397 Pa. 28, 153 A.2d 255 (1959). However, the master must have control not only over the agent but over the work and the performance thereof before liability can be extended to him. Collins v. Hand, 431 Pa. 378, 246 A.2d 398 (1968). And the determination of whether a resident was the servant of a senior surgeon is a factual issue to be determined by the trier of fact. Thomas v. Hutchinson, 442 Pa. 118, 275 A.2d 23 (1971).
Since hospitals no longer have the benefit of charitable immunity the ordinary rules of agency apply to those institutions. Flagiello v. Penna Hospital, 417 Pa. 486, 208 A.2d 193 (1965). In Tonsic v. Wagner, 458 Pa. 246, 329 A.2d 497 (1974), the court considered whether both a hospital and the attending surgeon could both be liable in tort.
“We conclude that agency law principles applicable to others should also apply to hospitals and operating surgeons. Hospitals, as well as operating surgeons, owe a *398 duty to the patient. If that duty is breached under circumstances from which a jury could reasonably conclude that the negligent party was at the same time the servant of two masters, both masters may be liable.”
This was the Precedent Setting Case Yorston v. Pennell, 397 Pa. 28, 153 A.2d 255 (1959)
The doctor gave a shot of penicillin to the patient who had already told the Doctor he was allergic to it. Dr. Pennell never bothered to read his file so didn’t know this info and gave it to him anyway.
Back at that time according to the INSURANCE COMPANIES
said the hospital had “charitable immunity” because in those days a hospital was considered a charity.
Mr. Ellis had to sue the VA [sovereign immunity see above] for the right to sue the hospital.
IN THOSE DAYS VETERANS WERE NOT ALLOWED TO HIRE A LAWYER TO SUE HOSPITAL AND IT IS STILL TRUE TODAY !
[here is the work around]
Mr. Ellis DIDN’T TAKE ANY MONEY [HE WASN’T PAID] to bring the suit. THAT’S HOW HE GOT IT STARTED.
Even under this Pennsylvania rule, however, where the case involves a servant who is the general employee of a hospital but who is also the special employee of a surgeon for certain acts, only the surgeon can be held liable in practice because the hospital is immune from suit, although in other states the charitable immunity doctrine has been repudiated or at least broken down.
Volume 7 | Issue 2 | Article 6 1961
Agency – Borrowed Servant Doctrine – Surgeon Is Responsible for the Pre-Operative Negligence of Anesthetist by Edwin W. Scott PDF
17. Yorston v. Pennell, 397 Pa. 28, 153 A.2d 255 (1959)
Yorston v. Pennell
397 Pa. 28, 153 A. 2d 255 – Pa: Supreme Court, 1959 – Google Scholar … 31 Philip H. Strubing, with him K. Robert Conrad, Wilbur H. Haines, Jr., and Pepper, Bodine, Frick, Scheetz & Hamilton, for appellant. Jerome H. Ellis, with him Leon Rosenfield, for appellee.
OPINION BY MR. JUSTICE McBRIDE, July 2, 1959: … Cited
Christopher v. United States
237 F. Supp. 787 – Dist. Court, ED Pennsylvania, 1965 – Google Scholar … Civ. A. No. 29556. United States District Court ED Pennsylvania. February 3, 1965. 788 789 Jerome H. Ellis, Philadelphia, Pa., for plaintiff. Drew JT O’Keefe, US Atty., Philadelphia, Pa., Isaac S. Garb, Asst. US Atty., for defendant. WOOD, District Judge. …
Rodgers v. Nationwide Mut. Ins. Co.
496 A. 2d 811, 344 Pa. Superior Ct. 311, 344 Pa. … – Pa: Supreme …, 1985 – Google Scholar … Supreme Court of Pennsylvania. Argued April 16, 1985. Filed August 2, 1985. 313 Jerome H. Ellis, Philadelphia, for appellants. Bruce W. McCullough, Philadelphia, for appellee. Before WICKERSHAM, BECK and CERCONE, JJ. WICKERSHAM, Judge: …
Markus v. Dillinger
191 F. Supp. 732 – Dist. Court, ED Pennsylvania, 1961 – Google Scholar … 733 734 Fox, Rothschild, O’Brien & Frankel, Philadelphia, Pa., for plaintiff. Jerome H. Ellis, Philadelphia, Pa., for defendant. VAN DUSEN, District Judge. Plaintiff’s action is based on a series of checks he issued to defendant’s order between January 8, 1957, and April 8, 1958. …