## Facts

- Sylvia Caldwell underwent abdominal surgery at Worley Hospital.
- A surgical sponge was left inside Caldwell’s abdomen, causing injury.
- Caldwell sued the hospital and the operating surgeon, Dr. C. F. Sparger; an assisting surgeon was later removed by instructed verdict.
- The jury found negligence regarding the retained sponge by someone among the surgeons and nurses, and found that this negligence proximately caused injury.
- The jury did not find that Dr. Sparger was personally negligent in failing to look for the sponge before closing the incision.
- The jury found the nurses failed to make a correct sponge count and that this failure proximately caused injury.
- The jury refused to find the nurses were Dr. Sparger’s borrowed servants.

## Issues

1. Whether a surgeon is vicariously liable, as a matter of law, for operating-room negligence under the “captain of the ship” doctrine despite a jury finding that the nurses were not the surgeon’s borrowed servants.
2. Whether vicarious liability for operating-room personnel is governed instead by borrowed-servant agency principles requiring a factual determination of the surgeon’s right to control the specific negligent act.

## Decision

- The Supreme Court of Texas reversed the court of civil appeals’ imposition of surgeon liability based on the captain-of-the-ship doctrine.
- The court held the surgeon’s vicarious liability turns on borrowed-servant agency principles and the right to control the specific negligent conduct.
- Because the jury found the nurses were not Dr. Sparger’s borrowed servants and did not find him personally negligent, Dr. Sparger was not liable.
- The hospital, as the nurses’ employer, remained vicariously liable for their negligent sponge count.
- On rehearing, the court remanded to the court of civil appeals for consideration of factual sufficiency, while maintaining its rejection of captain-of-the-ship liability and its reliance on borrowed-servant analysis.

## Legal Principles

- Texas does not impose automatic surgeon liability for operating-room negligence under a captain-of-the-ship rule.
- A surgeon’s vicarious liability for hospital personnel depends on borrowed-servant agency principles.
- The controlling inquiry is whether the surgeon had the right to control the details of the specific act alleged to be negligent.
- A jury’s borrowed-servant finding allocates responsibility: absent borrowed-servant status (or personal negligence), hospital employees remain the hospital’s servants for respondeat superior purposes.

## Conclusion

The Texas Supreme Court held that a surgeon is not vicariously liable merely because negligence occurred in the operating room; liability depends on a fact-based borrowed-servant control determination, and where nurses are found not to be the surgeon’s borrowed servants and the surgeon is not personally negligent, the hospital is vicariously liable for the nurses’ negligence.


Sparger v. Worley Hosp., Inc., 547 S.W.2d 582 (Tex. 1977)