The “Captain of the Ship” Doctrine in Georgia Surgical Malpractice Law

No Georgia statute or decision named here fixes an end point. Two separate things end at different times: the surgeon’s supervision over operating room staff, which is tied to “immediate supervision” on that occasion (Ross v. Chatham County Hospital Authority, 258 Ga. 234 (1988)), and the surgeon’s duty as a physician to the patient, which doesn’t stop when the drapes come off.

Control ends act by act

Foreign objects: the clearest fixed task

Ross treats the surgeon’s “responsibility to assure himself and the patient that no foreign object remains” as the surgeon’s own. Practically, that task runs at least through closure. Leaving before the end doesn’t discharge it, unless another surgeon took it over.

Leaving before closure

A surgeon who hands off closure to a resident or partner may still be responsible for what the standard requires. Expert testimony would have to address whether the handoff was reasonable, and Statham v. Quang, 321 Ga. 533 (2025), governs whether the person closing was acting as the surgeon’s servant.

After the operating room

The physician’s own duty under O.C.G.A. § 51-1-27 goes on through whatever follow-up the standard requires. A surgeon can’t end that by leaving the room, though a clear handoff to another doctor can change what’s reasonable. A surgeon who wants to end the relationship altogether must act in a way that doesn’t leave the patient at risk, a separate subject.

Why the distinction matters for damages

Vicarious liability moves one person’s fault onto another. Direct negligence stands on its own. A plaintiff can lose the first and win the second. Under § 51-12-33, the jury assigns each person’s share.

Evidence

The circulating nurse’s record can log “in room”, “incision”, “closure,” and “out of room” times. Those entries, along with the anesthesia record, show who was present at what moment. A surgeon’s own attestation may say when the surgeon left. Compare those times with when the injury likely occurred.

General information about Georgia law as of November 2026. It is not legal advice and does not create an attorney-client relationship.

The strongest proof is testimony or records showing specific commands about how a task was done. Statham v. Quang, 321 Ga. 533 (2025), is the model: the physicians instructed a medical student to insert a sponge stick, visually confirmed that the initial insertion was proper, and directed the student to manipulate it during surgery. That evidence was enough to send the question to a jury.

Evidence by what it shows

Limits on each

• Operative report. Written by the surgeon. It may use “we” for the whole team, and it may be dictated later.
• Nursing notes. They record tasks and times, and they may not record who said what.
• Hospital policy. It shows who was supposed to act, and not who did.
• Team hierarchy. It says nothing about the moment of injury.

What falls short

Ross v. Chatham County Hospital Authority, 258 Ga. 234 (1988): “Evidence of the presence of the surgeon in the operating room falls short.” McClure v. Clayton County Hospital Authority, 176 Ga. App. 414 (1985), adds that nurses’ acts done before the surgeon’s arrival aren’t under the surgeon’s immediate personal supervision, so timing is part of the proof.

Control or right to control

Statham treats these as separate routes. A contract can supply a right of control even if the physician didn’t exercise it, and a physician can assume control with no contractual right at all. In Statham, the lower court’s reliance on the contract’s terms was error because the plaintiff’s theory rested on assumed control.

Medical judgment

Ross and Hoffman v. Wells, 260 Ga. 588 (1990), limit the borrowed servant rule to tasks needing professional skill and judgment. So the proof should also show what kind of act it was. An expert can explain whether the step called for professional judgment, or if it was clerical.

Getting it

Depositions are the main tool, and they should be scheduled before memories fade further. Requests under § 9-11-34 reach hospital records. Review organization proceedings and records are confidential under § 31-7-133(a), subject to the exceptions in subsection (b).

General information about Georgia law as of November 2026. It is not legal advice and does not create an attorney-client relationship.

Georgia doesn’t appoint one. The cases don’t use a rule requiring a single captain. Each surgeon answers for that surgeon’s own negligence under O.C.G.A. § 51-1-27, and control over assistants is decided step by step. Statham v. Quang, 321 Ga. 533 (2025), had two physicians as defendants, one who performed the surgery and one who assisted, along with their practice.

Sorting the two

Why the hospital’s defense gets harder

The borrowed servant test needs complete control by the special master, and an exclusive right to discharge. Two doctors directing one nurse complicates that showing. Hoffman v. Wells, 260 Ga. 588 (1990), said that “both employers cannot have control over the actions of the employee at the same time,” speaking of hospital and surgeon. Where control is divided, the employer’s liability under respondeat superior may simply remain.

How damages get divided

O.C.G.A. § 51-12-33(b) has the jury assign a percentage to each person at fault, with no joint liability and no contribution. Two surgeons who blame each other can leave a plaintiff with two shares. A plaintiff who sues only one may see the absent surgeon named as a nonparty on 120 days’ notice (§ 51-12-33(d)), and that share is uncollected.

Proof issues

• Affidavit. Section 9-11-9.1 requires at least one negligent act for each defendant’s claim. A single expert may not qualify for both if their specialties differ.
• Separate experts. Section 24-7-702(c) is tied to the procedure or condition at issue.
• Consent. Under § 31-9-6.1(h), the “responsible physician” is the one performing, or under whose direct orders it’s performed by a nonphysician. Each doctor’s role affects who had that duty.
• Operative reports. Each surgeon’s report, if there are two, should be compared.

Time limits

Each surgeon’s acts have their own dates, and they may fall on the same day. O.C.G.A. § 9-3-71’s periods apply separately to each. A suit against one doesn’t save a claim against the other.

General information about Georgia law as of November 2026. It is not legal advice and does not create an attorney-client relationship.

No source counts these cases, so no success rate can be given. “Captain of the ship” is a label, and the Georgia Supreme Court’s reasoning runs through two other doctrines: respondeat superior and the borrowed servant rule. In Ross v. Chatham County Hospital Authority, 258 Ga. 234 (1988), the court said that “evidence of the presence of the surgeon in the operating room falls short” of what’s required.

How the question is framed in Georgia

Statham made the point directly. The borrowed servant doctrine operates “as a defense to a claim of vicarious liability under the doctrine of respondeat superior, not as an independent basis for imposing vicarious liability on a defendant.”

Outcomes in the decisions

• Ross. A surgeon’s duty to make sure no foreign object remains is the surgeon’s own medical judgment. Ross calls counting sponges “generally” an administrative act.
• Hoffman v. Wells, 260 Ga. 588 (1990). Wrong-hand surgery. The decision to proceed was the doctor’s medical judgment, and the nurse’s opinion had to give way to it.
• McClure v. Clayton County Hospital Authority, 176 Ga. App. 414 (1985). The nurses placed a hand board before the surgeon came in, so their negligence wasn’t imputed to the surgeon.
• Statham. Evidence that doctors told a medical student what to do, checked the initial step, and directed the student during surgery made a jury question.

Why a win rate would mislead

Trial verdicts on this point aren’t collected in one place, and the issue can also end at summary judgment. Even where a plaintiff loses the vicarious theory, the same facts may support a direct negligence claim against the surgeon, or a claim against the hospital for its employee.

What decides a given case

Who gave orders, who had the right to control the work on that occasion, and whether the act needed medical judgment. A title alone doesn’t answer any of those questions.

Plaintiff’s plan

Plead each theory separately. Name both the hospital and the surgeon where facts support it, because under O.C.G.A. § 51-12-33(b) each pays only an apportioned share.

General information about Georgia law as of November 2026. It is not legal advice and does not create an attorney-client relationship.

Not by that label. Georgia’s operating room rule depends on “immediate supervision” in the surgical setting (Ross v. Chatham County Hospital Authority, 258 Ga. 234 (1988)). After the patient leaves the room, the staff are working under other orders and other supervisors, so the surgeon isn’t automatically answerable for what they do. The surgeon can still be liable for the surgeon’s own post-operative care.

Who answers for what

The control test still applies

Statham v. Quang, 321 Ga. 533 (2025), says a master-servant relationship exists where a principal has the right to control, or assumes control over, the “time, manner, and method of executing the work”. The decision involved a student during surgery. Its reasoning rests on general agency law, so it could be argued outside the operating room. An order on a chart that states a result, leaving the nurse to decide how to carry it out, points away from that kind of control.

Handoffs

A handoff doesn’t erase the surgeon’s duty as a physician. What’s owed after surgery depends on what the standard of care requires of a surgeon for that procedure, which is a matter for an expert under O.C.G.A. § 24-7-702. A surgeon who left instructions that were unclear or incomplete can be at fault for that.

Time limits

Each post-operative omission has its own dates under § 9-3-71. The two-year period runs from the injury, and the five-year repose from the act. Continuing to see the surgeon doesn’t extend either, since Georgia rejected the continuous treatment doctrine.

Records to get

Post-op orders, nursing notes, call logs, rounding notes, and any record of who was covering. Together they answer who knew what, and when.

General information about Georgia law as of November 2026. It is not legal advice and does not create an attorney-client relationship.

Yes. The surgeon’s duty isn’t the same as the count, and a hospital policy doesn’t move it. Ross v. Chatham County Hospital Authority, 258 Ga. 234 (1988), is directly on point: “a surgeon’s responsibility to assure himself and the patient that no foreign object remains within the body of the patient is an act of medical judgment and skill.” In the same case the court said counting is “generally considered an administrative act.” So the nurses’ count can make the hospital liable, while the surgeon stays responsible for the object.

Two claims from one event

Reliance on the count

Ross says the surgeon’s failure can create liability “without respect to the acts or nonfeasance of other personnel.” A surgeon can still argue that relying on a reported correct count was reasonable, given the exploration done, and that the standard of care was met. Expert testimony decides that, along with any imaging performed.

Liability is apportioned

Under O.C.G.A. § 51-12-33(b), a jury can assign percentages to both, with no joint liability. Naming only one invites a nonparty fault notice about the other.

Older authority

Akridge v. Noble, 114 Ga. 949 (1902), held a physician liable for negligently leaving a sponge. In Ross, the record showed no count had been taken at all and that no counting policy existed in Savannah at the time. That means the opinion doesn’t decide what happens where a count was performed correctly according to policy and was still wrong.

Timing

Section 9-3-72 gives one year after the negligent act is discovered, and § 9-3-71’s limits don’t apply. Annotated decisions treat when a patient, using ordinary care, should have learned of the object as a possible jury question (Monfort v. Colquitt County Hospital Authority, 288 Ga. App. 202 (2007)). Don’t count on a full two years, since one year from discovery can run out first.

Evidence

Count sheets, the operative report, X-ray orders, and later imaging. Preserve the object after removal. If the second surgeon removed it, that surgeon’s operative note and the pathology record identify it.

General information about Georgia law as of November 2026. It is not legal advice and does not create an attorney-client relationship.

Not because of any automatic rule. An equipment failure raises three questions: whether the surgeon was negligent in using or responding to it, whether the hospital failed in maintaining or supplying it, and whether the maker supplied a defective product. A surgeon’s liability under O.C.G.A. § 51-1-27 depends on conduct. Georgia’s control test (Statham v. Quang, 321 Ga. 533 (2025)) concerns people, not machines.

When it points to the surgeon

• The surgeon knew of the malfunction and kept using the device.
• A warning display or alarm was ignored.
• The surgeon chose the wrong setting or used the device outside what a reasonable surgeon would do.
• The surgeon’s response after the failure fell below the standard.

When it points elsewhere

Timing and repose

Claims against a provider use § 9-3-71. A product claim has two years under § 9-3-33, with a ten-year repose from first sale in § 51-1-11(b)(2). A fragment left in the body may raise the foreign object rule in § 9-3-72, whose exclusion for a “fixation device, or prosthetic aid or device” has to be read against the item.

Preempted claims

Riegel v. Medtronic, Inc., 552 U.S. 312 (2008), limits state-law claims about the safety and effectiveness of devices given FDA premarket approval. It doesn’t protect a surgeon or a hospital from claims about how they used or maintained a device.

Preserve the device

The device should be taken out of use and held, with its logs and any service records. Returning it to the manufacturer may lead to testing without the patient’s side present. If the hospital anticipates a claim, it must preserve it (Phillips v. Harmon, 297 Ga. 386 (2015)), and a letter clarifies the date.

Apportionment

Under O.C.G.A. § 51-12-33, the jury can divide fault among the surgeon, hospital, service company, and maker, including one named only as a nonparty. A plaintiff who sues only the surgeon can lose much of the claim to an empty chair.

General information about Georgia law as of November 2026. It is not legal advice and does not create an attorney-client relationship.

The attending can be liable in two ways: for the attending’s own negligent supervision, or vicariously, if the resident was acting as the attending’s servant. Statham v. Quang, 321 Ga. 533 (2025), addressed a medical student rather than a resident, but it rests on general agency law. It asks whether the physician had the right to control, or assumed control over, the manner and method of the work.

Separating the claims

Residents and the student statute

O.C.G.A. § 51-1-38(a) protects a student participating in care “as a part of an academic curriculum leading to the award of a medical degree,” except for willful or wanton misconduct. A resident already holds the degree, so that protection doesn’t fit on its text. Subsection (b) says the section doesn’t limit the liability of a medical facility, academic institution, or doctor of medicine.

Consent

Section 31-9-6.1(h) defines the responsible physician as the one “who performs the procedure or the physician under whose direct orders the procedure is performed by a nonphysician.” A resident is a physician, so the wording deserves a close look on these facts. Whether a patient was told a resident would operate is a separate concern. The statute’s list of required disclosures in subsection (a) focuses on the procedure, its purpose, material risks, and alternatives.

Why anesthesia matters

The patient can’t say who operated. Proof has to come from the operative report, the anesthesia record, the circulating nurse’s notes, and depositions. Teaching-hospital operative reports may show an attending’s attestation about which parts the attending was present for. That language should be compared with what witnesses say.

Whose employee

If a hospital employs the resident, it’s liable under § 51-2-2 unless it establishes the borrowed servant defense, which Statham quotes as complete control by the surgeon for the occasion, no such control by the hospital, and an exclusive right to discharge. Ross v. Chatham County Hospital Authority, 258 Ga. 234 (1988), adds that presence in the room isn’t enough. State-run programs raise sovereign immunity under § 50-21-25, which can protect the individual state employee and direct the claim to the entity.

General information about Georgia law as of November 2026. It is not legal advice and does not create an attorney-client relationship.

They ask who had the right to direct the work, or actually directed it, at the moment of the injury. Statham v. Quang, 321 Ga. 533 (2025), frames it as control over “the time, manner, and method of executing the work,” as opposed to a right merely to require certain results. Ross v. Chatham County Hospital Authority, 258 Ga. 234 (1988), adds the operating room’s specific rule: “immediate supervision” shown by competent evidence.

The steps

1. Whose negligence? If the surgeon’s own act is at issue, control of others doesn’t matter.

2. What kind of task? Ross limits the transfer to tasks involving professional skill and judgment. Clerical or administrative acts stay with the hospital, “even though these tasks are related to the treatment of the patient.”

3. On this occasion? The borrowed servant test focuses on the occasion of the injury. It requires complete control and direction by the special master, no such control by the general master, and an exclusive right to discharge the servant.

4. Who has the burden? Ross says a hospital seeking to escape liability “must show” it yielded control and that the employee was under the surgeon’s immediate supervision. A plaintiff suing the surgeon for an assistant’s act has to prove the master-servant relationship.

5. Judge or jury? When the evidence conflicts, it’s for the jury. Statham reversed summary judgment because the facts could support a finding of assumed control.

What the court looks at

Wrong-hand surgery as an example

In Hoffman v. Wells, 260 Ga. 588 (1990), a surgeon was told that the chart and consent form said the right hand. The surgeon checked the office’s records, palpated both hands with the nurse, and ordered the left hand prepared. The court said he “was in control and exercised his professional judgment,” so the hospital wasn’t vicariously liable for the nurse’s part in it.

Limit of the inquiry

Control answers only who’s answerable. The plaintiff must still prove that the act was negligent, through an expert under § 24-7-702 where the question is technical, and that it caused the injury. A case can be won on control and lost on causation.

General information about Georgia law as of November 2026. It is not legal advice and does not create an attorney-client relationship.

For vicarious liability, presence isn’t enough, so the theory can fail. Ross v. Chatham County Hospital Authority, 258 Ga. 234 (1988), says it directly: immediate supervision “must be shown by competent evidence”, and “evidence of the presence of the surgeon in the operating room falls short of this requirement.” A surgeon who is there but not directing a given act doesn’t become that person’s master because of proximity.

Presence still matters in other ways

So the same surgeon can avoid vicarious liability for a nurse’s clerical error and still be liable for ignoring a warning from that nurse.

“Supervising every action” isn’t the test

No Georgia decision discussed here demands that a surgeon watch each person’s every move. Statham’s question is whether the principal has the right to control or assumed control over the manner and method of the work at issue. A physician can assume control over one step and not another. That’s why the analysis follows the particular act.

How the plaintiff shows more than presence

• Instructions the surgeon gave about that task.
• Evidence the surgeon checked it.
• Evidence the surgeon corrected it, or stopped it.
• Team testimony that this surgeon directed the setup or the steps.

How the surgeon responds

• The task was a routine one performed under hospital policy.
• The surgeon’s attention was properly on another part of the operation.
• The act was over before the surgeon arrived.
• An expert explains what a surgeon can reasonably see and do at that point.

An expert on the standard of care must be qualified under O.C.G.A. § 24-7-702(c) in the relevant procedure.

The hospital’s position

The hospital can’t use the surgeon’s presence as its defense. In Ross, the hospital had to show it yielded control and that its employees were under immediate supervision. If it doesn’t, it remains liable for its employees under § 51-2-2. The surgeon’s mere presence therefore leaves the nurse’s negligence with the hospital.

General information about Georgia law as of November 2026. It is not legal advice and does not create an attorney-client relationship.

Not vicariously, if the contractor really is independent. O.C.G.A. § 51-2-4 says an employer isn’t responsible for torts of a person exercising an independent business who isn’t “subject to the immediate direction and control of the employer.” The surgeon’s exposure depends on whether the surgeon directed the anesthesia, or personally missed something a surgeon should have caught.

Who employs whom

The CRNA statute

O.C.G.A. § 43-26-11.1 allows anesthesia by a certified registered nurse anesthetist “under the direction and responsibility of a duly licensed physician.” That’s a licensing rule. It’s not a statement that every operating surgeon is vicariously liable for a CRNA. A plaintiff still has to prove control over the work on that occasion, or another basis for liability. The chart and contract can show who the directing physician was.

Surgeon’s own duties

Separate from any vicarious theory:

• Choosing or ordering something that was unsafe in anesthesia terms.
• Ignoring a warning from the anesthesia provider.
• Continuing to operate after a reported crisis, when a reasonable surgeon would stop.

An expert has to set out what a surgeon must do. Ross v. Chatham County Hospital Authority, 258 Ga. 234 (1988), confirms that liability for the surgeon’s own negligence doesn’t depend on others in the room.

Hospital’s position

An anesthesiologist is a covered “health care professional.” Under O.C.G.A. § 51-2-5.1, a hospital that posted the required notice, or got a signed acknowledgment, isn’t vicariously liable for an independent professional unless there’s actual agency or employment. It can’t rely on that for its own direct negligence, such as faulty equipment.

Contract language

Statham v. Quang, 321 Ga. 533 (2025), says a contract can establish a right of control, but it isn’t dispositive when a physician may have assumed control anyway. The contract between the anesthesia group and the hospital should be requested, as should any policy on who directs a CRNA.

Apportionment

A jury can divide fault among the anesthesia provider, the group through its employee, the surgeon, and the hospital (§ 51-12-33). Naming the anesthesia group avoids losing its share if the surgeon or hospital points to it.

General information about Georgia law as of November 2026. It is not legal advice and does not create an attorney-client relationship.

It can, as the surgeon’s own negligence. No Georgia statute speaks to silence. The question is whether a reasonable surgeon in that position would have spoken up or acted, under O.C.G.A. § 51-1-27, and an expert has to say so. Ross v. Chatham County Hospital Authority, 258 Ga. 234 (1988), shows the structure: a surgeon’s failure in a duty of medical judgment “can impose liability upon him without respect to the acts or nonfeasance of other personnel in the operating room.”

What has to be shown

1. Knowledge or a reason to know. The surgeon saw it, was told, or should have noticed. A nurse’s note stating that the surgeon was informed matters a great deal.
2. A chance to act. The surgeon had the time and authority to stop or correct it.
3. A duty. An expert states what the standard required.
4. Causation. Speaking up would probably have avoided the harm.

Why the vicarious theory isn’t needed

This claim doesn’t depend on who employs the nurse or the technician. Georgia’s rule on imputed negligence requires control. A claim about the surgeon’s own omission doesn’t have that hurdle, which makes it a useful alternative where the surgeon’s control of the staff is disputed.

The reverse case

A nurse who disagrees with the surgeon is in a different position. In Hoffman v. Wells, 260 Ga. 588 (1990), a surgeon chose to operate on a hand that conflicted with the admission chart and the consent form. The court said the decision to proceed was medical and that “whatever opinion the nurse held had to give way to the doctor’s superior medical authority in the operating room.” The court reversed the judgment against the hospital and affirmed the one against the surgeon, including punitive damages.

Evidence of the moment

• Circulating nurse’s record.
• Anesthesia record, which logs vital signs and times.
• Equipment and imaging logs from the procedure.
• Depositions of each person present.
• Any recorded video.

Statements afterward

An apology, or a statement that a “mistake” occurred regarding an unanticipated outcome, is inadmissible under § 24-4-416. It’s a limit on proof, not on liability. Peer review material is protected by §§ 31-7-133 and 31-7-143.

Emergency care

If the surgery immediately followed treatment in an emergency department, § 51-1-29.5(c) can require clear and convincing evidence of gross negligence. Failing to speak during a crisis might not meet that bar, depending on the facts.

General information about Georgia law as of November 2026. It is not legal advice and does not create an attorney-client relationship.

No. Following a policy is evidence of what the surgeon did, and the legal test remains reasonable care and skill under O.C.G.A. § 51-1-27. A hospital policy isn’t a statute, and it doesn’t take away a duty that Georgia treats as the surgeon’s own. Ross v. Chatham County Hospital Authority, 258 Ga. 234 (1988), held that the duty to assure that no foreign object remains is an act of medical judgment and skill, with liability “without respect to the acts or nonfeasance of other personnel.”

Where a policy helps the surgeon

• Showing who was assigned to do a task, where the claim is vicarious.
• Showing the surgeon wasn’t directing an administrative step, which supports the absence of “immediate supervision”.
• As evidence, through an expert, that the surgeon’s approach was reasonable.

Where it doesn’t help

It can hurt the hospital

A hospital’s policy can be offered against it, as a statement of what it considered necessary. Under Mitchell County Hospital Authority v. Joiner, 229 Ga. 140 (1972), a hospital can be liable for its own independent negligence. A bad policy, or one the hospital doesn’t enforce, is a claim against the hospital.

Who says it was followed

Compliance has to be shown. Time-out forms, count sheets, and site-marking records exist for that. A checked box doesn’t prove the step really happened. Audit data and testimony can test it.

In Ross itself

The record showed that no count of sponges and instruments took place, and that no counting policy existed in Savannah at that time. That was a 1988 case in which the local standard wasn’t on appeal, and Georgia’s rule today measures the profession generally, and not locality. A hospital’s lack of a policy doesn’t excuse the surgeon’s own duty.

Evidence rule on later changes

If a hospital changes the policy after the event, O.C.G.A. § 24-4-407 bars using the change to prove negligence, with exceptions. The version in force on the day of surgery is what matters, so a request should ask for it by date.

General information about Georgia law as of November 2026. It is not legal advice and does not create an attorney-client relationship.

Yes, on the same control test, since nothing in Georgia’s rule depends on the tool. Ross, McClure, and Statham involve sponges, hand boards, and a student, not robots. A robot doesn’t change the question of who had the right to control, or assumed control over, the manner and method of the work (Statham v. Quang, 321 Ga. 533 (2025)), but it does add a defendant and some new facts.

Who might answer for what

When the surgeon is at a console

Ross v. Chatham County Hospital Authority, 258 Ga. 234 (1988), requires “immediate supervision” and says presence alone falls short. A surgeon at a console in the same room can see through the camera, but may not see what the bedside team is doing. Whether that’s immediate supervision is a factual question, and neither side has an automatic answer.

True remote surgery

If the surgeon were in another building or state, the location raises questions about licensure and about where a suit belongs. Those facts should be looked at for the particular case. The control test would still be the starting point for vicarious liability.

Device claims

A strict liability claim against a maker carries a ten-year repose from first sale (§ 51-1-11(b)(2)). A seller who isn’t a manufacturer isn’t liable in strict liability under § 51-1-11.1(b). Federal pre-emption depends on how the FDA handled the device, under Riegel v. Medtronic, Inc., 552 U.S. 312 (2008), which addressed devices with premarket approval.

Evidence

The system’s logs can record movements, instrument changes, and error messages. They may be held by the hospital, the maker, or both. A hold letter should go to each promptly, and preserve the instrument itself if it was removed. Surgical video, if recorded, can show what happened.

Consent

Whether a patient was told about the system is a matter for § 31-9-6.1 only as far as a material risk or a practical alternative was involved, for a listed procedure.

General information about Georgia law as of November 2026. It is not legal advice and does not create an attorney-client relationship.

It can be offered, but a chart doesn’t answer the question. The test asks who controlled or had the right to control the work on the occasion of the injury. Statham v. Quang, 321 Ga. 533 (2025), says that for the borrowed servant rule courts focus on that specific occasion, and it rejected the idea that contract terms were dispositive where a physician could have assumed control anyway.

What a chart can do

• Show a formal right to direct staff, which can matter because a right of control is one route to a master-servant relationship.
• Identify who was on the team and whom to depose.
• Show that the hospital, and not the surgeon, supervised and could discipline staff. That can help the surgeon.

What it can’t do

• Prove the surgeon gave a particular order.
• Show who was watching when the error happened.
• Turn presence or rank into supervision. Ross v. Chatham County Hospital Authority, 258 Ga. 234 (1988), requires competent evidence of “immediate supervision”.

Getting it admitted

A hospital’s organizational document may come in through a custodian as a business record (O.C.G.A. § 24-8-803(6)), or a witness can identify it (§ 24-9-901). It needs to be the version in force on that date. If offered against the hospital, it may qualify as an admission under § 24-8-801(d)(2).

Better evidence

In Statham, the court pointed to specific conduct: the physicians instructed the student, visually confirmed the initial step, and directed the student during the surgery. A hierarchy chart wouldn’t have supplied any of that.

Three-part test for a borrowed servant

The hospital raising the defense must meet the test quoted in Statham from earlier decisions: the special master “had complete control and direction of the servant for the occasion,” the general master “had no such control,” and the special master “had the exclusive right to discharge the servant.” A chart showing that the hospital retained authority to discharge a nurse can bear on the third factor. Ross separately requires a showing that the hospital yielded control in the operating room.

General information about Georgia law as of November 2026. It is not legal advice and does not create an attorney-client relationship.

Both can be liable, but “jointly” isn’t quite the right word in Georgia. Ross v. Chatham County Hospital Authority, 258 Ga. 234 (1988), said about a retained instrument that “both the surgeon and the hospital might incur liability.” Under O.C.G.A. § 51-12-33(b), though, damages apportioned by the trier of fact “shall not be a joint liability among the persons liable,” with no right of contribution.

How each one gets there

The same employee, two masters

Hoffman v. Wells, 260 Ga. 588 (1990), says that where employees do one job for two masters, “both employers cannot have control over the actions of the employee at the same time.” So on one act of one nurse, the hospital and surgeon aren’t both vicariously liable. The court in Ross tied the split to the type of act: medical judgment can pass to the surgeon, and “there is no transfer of liability for the negligence of an employee in the performance of clerical or administrative tasks not requiring the exercise of medical judgment.”

The operating room doesn’t change that. Ross “expressly” disapproved cases that would relieve a hospital of liability for those administrative acts.

Who proves what

The hospital that wants out has to show that it yielded control and that the employees were under the surgeon’s immediate supervision (Ross). Statham v. Quang, 321 Ga. 533 (2025), describes the borrowed servant doctrine as a defense, not as a basis for suing the surgeon. A plaintiff suing the surgeon for an assistant’s act has to prove a master-servant relationship.

Apportionment in practice

A jury can assign percentages to the surgeon, the hospital, and any nonparty named with 120 days’ notice (§ 51-12-33(d)). A vicarious share goes to the employer. If the hospital and surgeon point at each other and one isn’t in the case, the share given to the absent one may be uncollectible.

Time and notice

The same limits apply to both (§ 9-3-71). A hospital authority isn’t the State for immunity purposes (Thomas v. Hospital Authority, 264 Ga. 40 (1994)), though a state-run hospital brings in the Tort Claims Act’s 12-month notice (§ 50-21-26).

General information about Georgia law as of November 2026. It is not legal advice and does not create an attorney-client relationship.

Not by itself. An act that a surgical technician does independently stays with the technician’s employer, unless the surgeon assumed control of that act or was personally negligent. Ross v. Chatham County Hospital Authority, 258 Ga. 234 (1988), allows imputation only where the hospital yielded control and the employee was under the surgeon’s “immediate supervision,” and it says the surgeon’s mere presence falls short.

Sorting the tech’s act

“Independent” means the act needed no direction

If the surgeon gave no instruction and didn’t watch that step, the technician’s act isn’t under immediate supervision. The test from Statham v. Quang, 321 Ga. 533 (2025), looks for control over the “time, manner, and method” of the work, as opposed to the right merely to require a result.

Surgeon’s own liability remains possible

A surgeon must still do what the standard requires. If an object was left in, Ross treats the surgeon’s duty to assure that none remains as the surgeon’s own medical judgment and skill, regardless of who miscounted.

Procedure

• Affidavit. Section 9-11-9.1(g) lists medical doctors, nurses, and others. Surgical technologists aren’t named in the list, though radiological technicians are. A claim against the hospital through a technician may be argued as ordinary negligence under Dent v. Memorial Hospital of Adel, 270 Ga. 316 (1998), if no professional judgment is involved. Filing an affidavit avoids that fight.
• Time limits. Section 9-3-70 covers care “by any person acting under the supervision and control of the lawfully authorized person”, so the malpractice periods can apply.
• Apportionment. A jury can divide fault between the surgeon and the hospital under § 51-12-33.

Proving it

The circulating nurse’s log, the tech’s training file, the hospital’s job description, and depositions of the room’s occupants. A contract tech from a staffing company raises another question: which company controlled the work, and whether it’s a defendant.

General information about Georgia law as of November 2026. It is not legal advice and does not create an attorney-client relationship.

A surgeon can delegate many tasks, and that can avoid vicarious liability for them, but it doesn’t remove the surgeon’s own duties. Ross v. Chatham County Hospital Authority, 258 Ga. 234 (1988), gives the leading example: others may count, yet the surgeon’s responsibility to assure that no foreign object remains is “an act of medical judgment and skill” that “can impose liability upon him without respect to the acts or nonfeasance of other personnel.”

Delegation analysis

Statutes that show the pattern

Two Georgia statutes illustrate how delegation can move a task without moving responsibility:

• Consent. Section 31-9-6.1(c) lets information be disclosed through nurses, physician assistants, and others, yet says it’s “the responsibility of the responsible physician to ensure” that disclosure occurs and consent is obtained.
• Anesthesia. Section 43-26-11.1 allows a certified registered nurse anesthetist to give anesthesia “under the direction and responsibility of a duly licensed physician.” That language doesn’t say which physician, and how it applies to a surgeon is a question to examine on the facts.

Section 43-34-44 also lets a medical assistant perform listed tasks under a physician’s supervision in the physician’s office, with limits on what supervision means.

Delegating to a student

Under § 51-1-38, a medical student in a curriculum isn’t liable for ordinary negligence. A supervisor’s liability isn’t limited by that. Statham v. Quang, 321 Ga. 533 (2025), found a jury question where physicians instructed and directed the student’s task.

Where the surgeon can succeed

• A clerical or administrative task handled by hospital staff stays with the hospital (Ross).
• A step completed before the surgeon arrived isn’t under immediate supervision (McClure v. Clayton County Hospital Authority, 176 Ga. App. 414 (1985)).
• A competent colleague’s independent judgment, on a matter within the colleague’s own field, may be reasonable to rely on. An expert has to say so.

The malpractice standard

A surgeon doesn’t guarantee a result. If delegation and follow-through were reasonable under O.C.G.A. § 51-1-27, a bad outcome alone doesn’t make the surgeon liable. Documentation showing who did what, and why, is what supports that defense.

General information about Georgia law as of November 2026. It is not legal advice and does not create an attorney-client relationship.

Only if the surgeon assumed control of what the nurse did, or if the surgeon was separately negligent. If the nurse wasn’t under the surgeon’s direct command, imputation fails. Ross v. Chatham County Hospital Authority, 258 Ga. 234 (1988), requires “immediate supervision,” and McClure v. Clayton County Hospital Authority, 176 Ga. App. 414 (1985), refused to impute nurses’ negligence for an arm board placed before the surgeon entered.

Three possible routes against the surgeon

1. Assumed control. Statham v. Quang, 321 Ga. 533 (2025), lets a jury find a master-servant relationship from a physician’s actual direction of the work, even without a contract giving that right. The nurse’s being “not under their command” on paper doesn’t end it.
2. Right of control. A contract or a clear role can give a right to control, whether exercised or not. Hospital documents may point the other way for a staff nurse.
3. Own negligence. The surgeon saw the error, was told about it, or had a duty to check, and didn’t act. No control over the nurse is needed.

The hospital’s starting position

The nurse’s employer is liable under O.C.G.A. § 51-2-2 for acts within the scope of employment. The hospital can escape only by showing it yielded control and that the nurse was under the surgeon’s immediate supervision (Ross), and the rule doesn’t apply to clerical or administrative tasks. So a nurse’s error in the operating room stays with the hospital unless that showing is made.

Which sort of mistake

Proving the nurse’s negligence

Nurses are listed in O.C.G.A. § 9-11-9.1(g). A nurse can give the affidavit on nursing care, or a physician who supervised, taught, or instructed nurses can under § 24-7-702(c)(2)(D). A surgeon’s expert won’t necessarily reach the nurse’s standard.

What a plaintiff should plead

Name the hospital for its employee, and the surgeon for any assumed control and for the surgeon’s own negligence. Under § 51-12-33(b), the jury allocates among them. Leaving the hospital out risks an uncollected share.

General information about Georgia law as of November 2026. It is not legal advice and does not create an attorney-client relationship.

Only if the facts support a master-servant relationship, or the surgeon was personally negligent. The Georgia Supreme Court’s latest word is Statham v. Quang, 321 Ga. 533 (2025). It addressed a medical student, not a resident, and held that “a physician can be vicariously liable for the negligent acts or omission of a medical student under his supervision if the evidence shows that, when the injury occurred, the medical student was acting as the physician’s ‘servant.'”

How Statham applies to residents

The reasoning is general agency law: whether the principal has the right to control, or assumes control over, the time, manner, and method of the work. That language can reach a resident, but the holding is about a student. A resident has already earned the degree, and a defense may argue that this difference matters.

Two parts of Statham should be kept straight:

• The borrowed servant doctrine isn’t a basis for suing the physician. It’s the hospital’s defense.
• The contract between the school and practice wasn’t dispositive, because a physician can assume control without a contractual right.

What would show control

In Statham: instructing the student on the specific step, visually confirming it, and directing it during surgery. For a resident, the operative report’s attestation and depositions can supply this. A surgeon scrubbed in and directing each move stands differently from one in another room.

Other routes

Student immunity doesn’t cover residents on its text

O.C.G.A. § 51-1-38(a) protects a student in a curriculum “leading to the award of a medical degree”. It says nothing about a graduate in training. Statham also rejected the argument that this statute creates vicarious liability for a supervisor.

Public institutions

Residents at a state-run program may be state employees, and § 50-21-25 protects a state employee acting in scope and sends the claim against the entity, with its notice rule in § 50-21-26. That can change who’s sued and by when.

Apportionment

If the attending’s vicarious share and own share both come into play, a jury assigns percentages under § 51-12-33. A resident with little insurance may be a practical concern, which is one reason employment and control both get litigated.

General information about Georgia law as of November 2026. It is not legal advice and does not create an attorney-client relationship.