At trial, the defendant obstetrician was asked a variety of questions which implicated the obstetrician in the actions of the intern. First, the obstetrician testified that his agreement covered, and his liability was to continue, until the baby was turned over to the family doctor. Consequently, the negligence clearly occurred during the course of the obstetrician's intended treatment of the patient. Second, the obstetrician was not obligated to use a licensed physician to insert the silver nitrate and, therefore, the selection of the intern reflected the obstetrician's choice , an additional indication of control. Well, if the surgeon had the right of control and the right to give orders which the negligent intern was obligated to carry out, then under classical tests of agency the surgeon was liable for the harm that was caused.
Responsibility is commensurate with authority.
The classical test of agency was that the servant had to be the employee of the master and under the master's control. Under the classical test of agency, this intern was, by no stretch of the imagination, an employee of the surgeon. Therefore, to bridge the gap between temporary control but no permanent employment, the court pointed to a fa miliar area of maritime law as support for its somewhat unorthodox conclusion. Of course, maritime law had a totally different development than did tort law. It is somewhat easy to see how a court was drawn into the simile of Captain of the Ship.