of the undertaking." Scott v. Purcell, 490 Pa. 109, 117, 415 A.2d 56, 60 (1980) (quoting Restatement (Second) of Agency § 1, comment b (1958)). In the present case, there is no indication of any manifestation that the physicians or attendants who were present during the amniocentesis in question acted on Dr. Jackson's behalf, or that Dr. Jackson exercised any control over them. Dr. Jackson's affidavit clearly establishes the contrary. The physicians and attendants did not personally confer a benefit on Dr. Jackson by performing the amniocentesis procedure, nor did they receive compensation or direction from him.
In medical malpractice actions, Pennsylvania has expanded the traditional notion of the agency relationship with the "captain of the ship" doctrine, articulated in McConnell v. Williams, 361 Pa. 355, 65 A.2d 243 (1949).
The captain of the ship doctrine holds responsible the surgeon in charge of an operative procedure for the negligence of persons who assist him during the course of performing the operation, even if those persons also are employees of the hospital where the operation is performed. See Thomas v. Hutchinson, 442 Pa. 118, 124-25, 275 A.2d 23, 26-27 (1971); Collins v. Hand, 431 Pa. 378, 391-93, 246 A.2d 398, 405-06 (1968); Yorston v. Pennell, 397 Pa. 28, 39, 153 A.2d 255, 259-60 (1959); Grubb v. Albert Einstein Medical Center, 255 Pa. Super. 381, 395, 387 A.2d 480, 487 (1978). Vicarious liability under the captain of the ship doctrine attaches only if the physician in question has the right to exercise control over the work to be done and the manner of performance. Collins, 431 Pa. at 394, 246 A.2d at 406. The mere right to supervise, even as to the work and the manner of performance, is not sufficient to create an agency relationship or to extend captain of the ship liability. Yorston, 397 Pa. at 39, 153 A.2d at 260.
In the present case, it cannot be said that Dr. Jackson at any time exercised or possessed a right of control over the amniocentesis performed on Mrs. Karas or the manner of its performance. Mrs. Karas was not Dr. Jackson's patient. Dr. Jackson did not personally see Mrs. Karas or recommend the amniocentesis procedure to her. Dr. Jackson was not in charge of the operation and he did not employ or direct the physicians and attendants who performed the amniocentesis. Even if Dr. Jackson played a role in establishing general guidelines for the recommendation or performance of the amniocentesis procedure, the most that can be inferred from the facts on the record was that his role in this case was merely as director of the division of Medical Genetics. Dr. Jackson, therefore, is not vicariously liable under either the captain of the ship doctrine or a general theory of respondeat superior.
Finally, Dr. Jackson cannot be held responsible for the failure to warn of any risks associated with the amniocentesis on the part of persons in the Department of Medical Genetics or the physician who performed the procedure. In Pennsylvania, "a surgeon who treats an individual without that person's consent commits a technical battery and is responsible for the consequences of the tort." Salis v. United States, 522 F. Supp. 989, 997 (M.D. Pa. 1981). See Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966). Because Pennsylvania treats the lack of informed consent as a technical battery, the duty to warn and obtain consent appears to be on the physician who actually performs the operation, and thus commits the offensive contact. This rationale would not support an affirmative duty to warn on the part of other physicians or counsellors who may be in a position to inform a patient prior to an operation, but fail to do so. Because Dr. Jackson neither performed the amniocentesis nor was in control of its performance, he cannot be held liable for not personally counselling Mrs. Karas or for not properly supervising the persons who did counsel her.
There being no basis for holding Dr. Jackson individually or vicariously liable for the death of Mrs. Karas, Dr. Jackson's motion for summary judgment will be granted.
Upon consideration of defendant Dr. Laird G. Jackson's motion for summary judgment, and sworn affidavit and memorandum of law, it is hereby
Ordered that defendant's motion is granted, and judgment is entered in favor of defendant Dr. Laird G. Jackson.