The vicarious liability of a surgeon for a negligent anesthesiologist

In June 1992, the issue of whether a surgeon could be held liable for the negligence of an anesthesiologist was examined by the tribunal of Leuven (1). Liability was asserted not only against the negligent anesthesiologist, but also against the surgeon. The judgement is most interesting and raises many controversial points of law. Although, in most jurisdictions today, it is recognized that the surgeon is no longer the captain of the ship, but shares the responsibility with other colleagues such as the anesthesiologist, the Belgian judge, free as the trier of fact, can exceptionally hold a member of a surgical team liable for the negligence of his colleague. A critical analysis of this and two other recent cases in Belgium forms the basis of this paper, which deals with the liability of the surgeon for the anesthesiologist's negligence. This article will centre around four issues: First, the nature of the contractual relationship between anesthesiologist and patient. Second, the liability (criminal and civil) of a team member for his own fault if he observes a negligent colleague and does not take the appropriate measures. Third, the liability in Belgian tort law of the surgeon for the negligent anesthesiologist. Fourth, the liability in Belgian contract law of the surgeon for the anesthesiologist.