Berks County Court holds that a surgeon’s rank in the operating room is not control

Rosenberger v. Berks Plastic Surgery Institute, P.C., No. 21-16638 (Berks Cty. C.C.P. July 27, 2026) (Nevius, J.)

A captain of the ship can be on dry land, but wearing the stripes in the operating room does not make one a surgeon.

For anyone handling medical malpractice cases in Berks County, the Rosenberger v. Berks Plastic Surgery Institute, P.C. decision draws a hard line around the “captain of the ship” doctrine. Being the highest-ranking physician in the room is not enough. Neither is the power to stop the surgery. What matters is the right to control the manner in which the specific alleged negligent act was performed.

Judge J. Benjamin Nevius of the Berks County Court of Common Pleas granted summary judgment to the surgeon and the surgery center and denied it as to the surgical practice.

Key takeaways:

• Captain of the ship is not a free-standing rule. It is an application of borrowed servant and respondeat superior principles to the operating room, and it does not impose liability based on presence or rank alone.
• The test is manner of performance. The crucial question is whether the alleged servant fell under the surgeon’s right of control over the work to be done and the manner of performing it.
• Stop authority is not control. The power to halt a procedure differs from the right to dictate how a separately licensed physician in a coequal specialty performs that physician’s own work.
• Ordering a drug does not control how it is given. A surgeon who requests an antibiotic does not thereby control site selection, catheter choice, patency assessment, infusion rate, or monitoring.
• Signing a discharge order is administrative. It reflects authority over the surgical episode, not control over how nurses assess an IV site.
• The employer still answers for its nurses. Dismissing the surgeon does not dismiss the practice that employed the recovery room nurse.

Although the surgeon outranks everyone in the operating room, it does not mean the surgeon commands every hand on deck.

Background

A patient underwent elective cosmetic surgery at the Berks Plastic Surgery Institute in March 2020. Plaintiffs alleged that an IV catheter placed by the anesthesiologist infiltrated or extravasated and was not timely recognized or treated, causing thrombophlebitis, vascular complications, and chronic complex regional pain syndrome (CRPS). The alleged negligence concerned anesthesia and infusion technique, including IV site selection, catheter choice, patency assessment, infusion rate, and monitoring. As the Court put it, the criticisms went to the how, not the what.

Plaintiffs withdrew all direct and corporate negligence claims by stipulation, leaving vicarious liability as the sole remaining theory.

Plaintiffs argued that the surgeon’s authority, including stop power, patient positioning, the vancomycin order, and the discharge signature, made him vicariously liable under the captain of the ship doctrine.

The Court’s reasoning

The Court accepted the plaintiffs’ evidence and still found no jury question. The evidence showed general authority over the surgery. It did not show the right to control how the anesthesiologist managed anesthesia or the IV. Citing Collins v. Hand, 246 A.2d 398 (Pa. 1968), the Court applied the crucial test of control over the manner of performance. Thomas v. Hutchinson, 275 A.2d 23 (Pa. 1971), supplied the borrowed servant framing.

The record cut against control. The anesthesiologist had his own care plan, obtained his own consent, placed the IV, administered medications, monitored vitals, and managed the airway. He testified that he was the sole anesthesia provider and that he performed all anesthesia-related work. Nothing showed that the surgeon employed him, supervised his practice, or had any right to instruct him on anesthesia technique.

The vancomycin argument failed because the plaintiffs’ own expert criticized the technique, specifically the site, patency, rate, and monitoring, not the decision to order the drug. Ordering a medication does not control how it is administered. Likewise, the surgeon directed patient repositioning for surgical purposes, but the duty to protect and monitor the IV site during the move belonged to the anesthesiologist. A surgical act that creates a condition, another provider then mismanages, does not make the surgeon that provider’s master.

Plaintiffs leaned on earlier decisions in which the control question reached a jury, and the Court distinguished them all on the same ground. In Schneider v. Albert Einstein Med. Ctr., 390 A.2d 1271 (Pa. Super. Ct. 1978), the surgeon stood by while an anesthesia crisis unfolded in front of him. In Szabo v. Bryn Mawr Hosp., 638 A.2d 1004 (Pa. Super. Ct. 1994), the record left the control relationship genuinely ambiguous. Neither was true here. There was no allegation that the surgeon knew of the infusion failures as they happened, and this record did not leave the control question open. Instead, it answered it.

The dual-servant theory drew the same answer. Plaintiffs argued the recovery room nurse served both the surgeon and the practice, but the analysis still turns on control over the specific work at issue. And there was no remedial gap to fill, because the nurse’s employer was itself a defendant.

The surgery center was out for a simpler reason. After the direct and corporate claims were withdrawn, nothing tied it to the anesthesiologist or the nurse as employer or principal.

Why the practice stays in

The claim against the surgical practice is straightforward respondeat superior. It employed the recovery room nurse whose post-operative conduct the expert criticized:

• Failing to assess and document the venous site
• Failing to recognize infiltration and extravasation
• Failing to understand the nurse’s role in facilitating timely antidote administration

Those are independent nursing failures measured by a nursing standard, not an anesthesia standard. Sequential failures by different providers get treated as such. And dismissing the surgeon as a borrowed master says nothing about the employer’s liability for its own employee.

What this means for Berks County practitioners

Plead and prove control at the level of the specific act. Rank, presence, stop authority, and paperwork will not carry a vicarious liability claim past summary judgment. Line up your expert accordingly. The Court repeatedly measured plaintiffs’ theory against what their own expert actually criticized, and the mismatch was fatal.

For defense counsel, the deposition testimony did the work. Clear testimony that the anesthesiologist alone controlled anesthesia care converted an ambiguous record into a clear one.

For plaintiffs’ counsel, the lesson is to follow the employment relationships. The nursing claim survived precisely because the nurse worked for a named defendant.

The Court’s closing point is the one worth remembering. Reading the doctrine as the plaintiffs urged would make every operating surgeon a strict insurer of every clinical act by every independently licensed professional in the room. That is not Pennsylvania law.

A copy of the opinion can be found here.