Malpractice by ship doctor- no remedy?

[smeyer418]

i

- See more at: http://www.lipcon.com/cllr.php?c_month=12&c_year=2013&mycllr=0#sthash.UmcUZKYf.dpuf

 

FLORIDA’S THIRD DISTRICT COURT OF APPEAL REVERSED AND REMANDED TRIAL COURT’S ORDER DENYING CRUISE SHIP DOCTOR’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION.

Interested? View the Case Summary

 

 

the case was dismissed for lack of personal jurisdiction over the doctor!

 

I have asked before that the cruise lines be required by contract to make the doctor be subject to the same jurisdiction that they make you as a passenger submit to and require minimum amounts of insurance.

 

- See more at: http://www.lipcon.com/cllr.php?c_month=12&c_year=2013&mycllr=0#sthash.UmcUZKYf.dpuf

Edited March 17, 2014 by smeyer418

[sparks1093]

i

- See more at: http://www.lipcon.com/cllr.php?c_month=12&c_year=2013&mycllr=0#sthash.UmcUZKYf.dpuf

 

FLORIDA’S THIRD DISTRICT COURT OF APPEAL REVERSED AND REMANDED TRIAL COURT’S ORDER DENYING CRUISE SHIP DOCTOR’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION.

Interested? View the Case Summary

 

 

the case was dismissed for lack of personal jurisdiction over the doctor!

 

I have asked before that the cruise lines be required by contract to make the doctor be subject to the same jurisdiction that they make you as a passenger submit to and require minimum amounts of insurance.

 

- See more at: http://www.lipcon.com/cllr.php?c_month=12&c_year=2013&mycllr=0#sthash.UmcUZKYf.dpuf

 

Interesting. So does one have to find out where the doctor is licensed and pursue the law suit in that jurisdiction?

[navybankerteacher]

Cruise contracts generally favor the line vs. the passenger - the line certainly wants to limit risk; particularly when dealing with such a litigious customer base as the US population. For them to be willing to accept mal-practice suits brought by a demographic largely consisting of fairly heavy drinking young adults plus golden agers who are likely to have health impairments, they would need to carry very comprehensive mal-practice insurance.

 

It might be a good thing - but if the lines were to be held liable for the sort of damages likely to be claimed, the insurance premiums would necessitate a substantial increase in fares --- it would not take many multi-million dollar awards by sympathetic juries to frail elderly passengers with unhappy situations, to wipe out a line's profitability.

 

You get what you pay for.

[chengkp75]

Interesting. So does one have to find out where the doctor is licensed and pursue the law suit in that jurisdiction?

 

That's one possibility (if that jurisdiction allows suits for malpractice while at sea), or the flag state of the ship.

 

The only way you are going to get this kind of malpractice protection is to have US flagged ships, so that everyone employed onboard, whether crew or subcontracted doctor is subject to US law.

[TMLAalum]

DH occasionally posts on CruiseCritic as USMMAalum....

[chengkp75]

DH occasionally posts on CruiseCritic as USMMAalum....

 

So there are two of us lurking here:D

[smeyer418]

Interesting. So does one have to find out where the doctor is licensed and pursue the law suit in that jurisdiction?

its not where he is licensed. Its where he LIVES. You get that through discovery against the cruise line which will have records where he resides...hopefully. Its absurd that the cruise line has no responsibility(IMO). They hire them. They set the standards for hiring them etc. In fact the cruise lines thump their chests and tell you how great they are at hiring them.

 

http://www.cruising.org/regulatory/policies/medical-facilities

http://www.acep.org/content.aspx?LinkIdentifier=id&id=29980&fid=2184&Mo=No

 

it would add a couple of dollars per cruise, if that much, to make the cruise line responsible for making sure they have insurance and are amenable to a law suit in the same place the passengers have to sue....

Edited March 17, 2014 by smeyer418

[chengkp75]

it would add a couple of dollars per cruise, if that much, to make the cruise line responsible for making sure they have insurance and are amenable to a law suit in the same place the passengers have to sue....

 

Not sure what you mean here. Who carries the malpractice insurance, the line or the doctor? When you consider that malpractice insurance (and the resultant overtesting, etc) is what has driven our health costs to the level they're at, what doctor from overseas would agree to carry malpractice insurance to US levels, without the US level of compensation? And if the line carried the insurance, that would open them to complete liability for all medical issues. Either way, the cost to the cruise line would result in significant increases in ticket prices.

[smeyer418]

Not sure what you mean here. Who carries the malpractice insurance, the line or the doctor? When you consider that malpractice insurance (and the resultant overtesting, etc) is what has driven our health costs to the level they're at, what doctor from overseas would agree to carry malpractice insurance to US levels, without the US level of compensation? And if the line carried the insurance, that would open them to complete liability for all medical issues. Either way, the cost to the cruise line would result in significant increases in ticket prices.

I work in the health care field. Its not emergency medicine doctors who pay high malpractice insurance. I totally disagree with you that it would significantly increase the cost of a ticket. Florida does not require doctors to carry malpractice insurance at all. and between the person who is significantly hurt by some doctor's malpractice on a ship and can't get anything....and the cruise industry I think I would prefer if there was some reasonably remedy for the person who is hurt(not that I am opposed to malpractice reform) but malpractice reform and this should not mean the person is practically without a remedy at all.

 

BTW you are aware if the doctor was an employee of the cruise line they could not under US law disclaim liability...

Edited March 17, 2014 by smeyer418

[navybankerteacher]

its not where he is licensed. Its where he LIVES. You get that through discovery against the cruise line which will have records where he resides...hopefully. Its absurd that the cruise line has no responsibility(IMO). They hire them. They set the standards for hiring them etc. In fact the cruise lines thump their chests and tell you how great they are at hiring them.

 

http://www.cruising.org/regulatory/policies/medical-facilities

http://www.acep.org/content.aspx?LinkIdentifier=id&id=29980&fid=2184&Mo=No

 

it would add a couple of dollars per cruise, if that much, to make the cruise line responsible for making sure they have insurance and are amenable to a law suit in the same place the passengers have to sue....

 

I do not think it would be that easy. The doctor him/herself would have to carry his/her own malpractice insurance in addition to the cruise line having to - which I am sure they do - of a sort which they believe is sufficient to cover the risk against which they need coverage. The lines - and their insurers - are aware of the limitations on that risk given the current environment where cruise lines are not subject to US liability laws for events which happen off-shore. It would be hard for them to find doctors to hire if those doctors knew that they would be subject to suit in similar cases. Even totally within the US the costs of protecting themselves against litigation has driven many OB/GYN practitioners out of business - except in metropolitan areas where the fees they can charge can allow for necessary insurance.

 

I am not saying that individuals who suffer from malpractice should not be able to sue - they should be able to recover their real losses. However, in the absence of tort reform, the lines and their doctors would need malpractice insurance - and the costs of sufficient insurance I the present environment would be far more than "a couple of dollars per cruise".

[smeyer418]

You add the doctor as an additional insured for the time they are working on the ships...it really not that difficult. The issue is punitive damages...

[smeyer418]

You add the doctor as an additional insured for the time they are working on the ships...it really not that difficult. The issue is punitive damages...

facts http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3204310/

 

http://www.ncbi.nlm.nih.gov/pubmed/20536812

Edited March 17, 2014 by smeyer418

[Hlitner]

We first will state that we are not an attorney. But the issue of potential liability for medical services has not been lost to the cruise lines. We believe that most of the US cruise lines no longer utilize physicians licensed in the US (somebody correct me if I am wrong). One notable exception is HAL who does use both US and Canadian physicans who are generally Emergency Room physicians (the ones we know are board certified). On other lines we have encountered physicians from many different countries such as England, Norway, and South Africa.

 

Hank

[smeyer418]

We first will state that we are not an attorney. But the issue of potential liability for medical services has not been lost to the cruise lines. We believe that most of the US cruise lines no longer utilize physicians licensed in the US (somebody correct me if I am wrong). One notable exception is HAL who does use both US and Canadian physicans who are generally Emergency Room physicians (the ones we know are board certified). On other lines we have encountered physicians from many different countries such as England, Norway, and South Africa.

 

Hank

US doctors like US employees cost more.

 

Dr. Taylor who is the physician in the case above is a British National.

 

the standard for the cruise line requires board certification in one of 3 specialties. Board Certification requires competency no matter where trained.

 

2.2.3 Board certification in:

 

2.2.3.1 Emergency Medicine or

 

2.2.3.2 Family Medicine or

 

2.2.3.3 Internal Medicine

Edited March 17, 2014 by smeyer418

[chengkp75]

US doctors like US employees cost more.

 

And why do US doctors cost more than doctors from the above mentioned countries that have a high standard of living? Because US doctors have to pay for malpractice insurance.

[smeyer418]

And why do US doctors cost more than doctors from the above mentioned countries that have a high standard of living? Because US doctors have to pay for malpractice insurance.

no its because they have a higher standard of living...US employees don't have malpractice to buy...

we pay our doctors more than anyplace else even when they have no malpractice to buy(when they are employees of an HMO as an example)...

 

BTW I ran both a national PPO and a local HMO.

My nightmare scenario was we got an application checked the National practitioners data bank, got a insurance certificate checked all the credentials and they were fine except that the person was an imposter who took someone else's identity(it happens)...and we had insurance too...

Edited March 17, 2014 by smeyer418

[grand isle joe]

........the patient or partner could have always declined treatment and took their chances.....nowhere does it say you are guaranteed health care....now you know why most if not all are non U.S. flagged vessels ........:rolleyes:

[fishywood]

I have asked before that the cruise lines be required by contract to make the doctor be subject to the same jurisdiction that they make you as a passenger submit to and require minimum amounts of insurance.

 

On behalf of all of us on Cruise Critic, thank you for looking out for us. But what exactly would that accomplish? Merely that the cruise contract would no longer disclaim all liablity for medical care onboard, just add it to the "mediation in leiu of litigation" clause. I gather what you are truly advocating is that true cases of criminal negligence fall under the jurisdiction of the FBI just as other violent crimes committed against a US citizen onboard do--but the case you have cited here does not appear to be anywhere near that egregious.

 

And as for the "US [physicians] cost more" discussion: my mom was an office manager of a surgical practice and was acquainted in the past with both a physician and an RN who regularly worked on cruise ships. They would be onboard for two or three weeks a couple times a year--and their only compensation would be a few free cabins for them and their families. Most US-based lines would probably still prefer this low-cost, high-turnover "working vacation" arrangement. Thank goodness there are lines such as Princess, P&O and Cunard that--in defiance of cost-cutting mandates by their corporate parent--will only hire under contract Chief Doctors and Head Nurses who are certified in casualty in the UK, Canada or South Africa.

Edited March 18, 2014 by fishywood

[cb at sea]

When you are on a cruise, you are NOT in America...you are in a foreign country, for all intents and purposes..legally! When you buy your ticket, you agree to ALL of their rules! So, either get with the program, or don't go on a cruise...especially, if you are sickly!

[smeyer418]

When you are on a cruise, you are NOT in America...you are in a foreign country, for all intents and purposes..legally! When you buy your ticket, you agree to ALL of their rules! So, either get with the program, or don't go on a cruise...especially, if you are sickly!

not really. Some US law applies to all cruises that begin, stop or end in the US. US law on injuries on a cruise ship is extremely clear. An injury caused by a cruiseline's, it employees or agents negligence may not be disclaimed,It can not be limited in damages. It can however be restricted in where you can sue as long as its in the US somewhere. But a doctor is not an employee or an agent...or so the courts have found.

[smeyer418]

On behalf of all of us on Cruise Critic, thank you for looking out for us. But what exactly would that accomplish? Merely that the cruise contract would no longer disclaim all liablity for medical care onboard, just add it to the "mediation in leiu of litigation" clause. I gather what you are truly advocating is that true cases of criminal negligence fall under the jurisdiction of the FBI just as other violent crimes committed against a US citizen onboard do--but the case you have cited here does not appear to be anywhere near that egregious.

 

And as for the "US [physicians] cost more" discussion: my mom was an office manager of a surgical practice and was acquainted in the past with both a physician and an RN who regularly worked on cruise ships. They would be onboard for two or three weeks a couple times a year--and their only compensation would be a few free cabins for them and their families. Most US-based lines would probably still prefer this low-cost, high-turnover "working vacation" arrangement. Thank goodness there are lines such as Princess, P&O and Cunard that--in defiance of cost-cutting mandates by their corporate parent--will only hire under contract Chief Doctors and Head Nurses who are certified in casualty in the UK, Canada or South Africa.

in general doctors don't want mediation or arbitration. While these sometimes reduce the cost of suing or defending, they tend to make more lawsuits not less. What they do prohibit is class action lawsuits and exemplary damages(punitive damages) but malpractice lawsuits don't lend themselves to class actions any way(the facts in each case are too different). I have no way of knowing if this doctor was negligent but the plaintiff(any plaintiff) at least deserves the right to be heard before a trier of fact reasonably convenient even if its in Florida.Between the doctor, cruise line and injured plaintiff, public policy should favor the plaintiff have an forum where they can be heard...that's all...and I have no problem at all with South African, British or Canadian trained doctors...

Edited March 18, 2014 by smeyer418

[navybankerteacher]

You add the doctor as an additional insured for the time they are working on the ships...it really not that difficult. The issue is punitive damages...

 

The issue is more than punitive damages - it includes reparations for loss suffered PLUS punitive damages. And, once it were established that a claim could be pursued in a US court do you really believe that any liability attorney would fail to go after every possible set of deep pockets: the doctor and his employer.

 

Yes, some form of recovery should be possible - but it would not be inexpensive once the door were opened: every ambulance chaser would be lined up at debarkation ports to sign up disappointed cruisers who felt they had ANY grounds for complaint --- and from the postings here on Cruise Critic, there is no shortage.

[grand isle joe]

The cruise lines can do what Walt Disney World has done in reference to their Handicapped Policy and allowing those to "cut" the line and just cancel the policy because of so much abuse..... So just cancel a doctor on board for passengers.....or better yet sign a waiver to indemnify any and all practices......unlike some in the U.S. Healthcare is not a right.....

[smeyer418]

..... So just cancel a doctor on board for passengers.....or better yet sign a waiver to indemnify any and all practices......

 

unenforceable...at least in the US...as I said there is already a law in the US that covers this...

such a limitation is void under us law

 

http://www.lipcon.com/no_limitations_on_liability_for_injury_death_by_shipowner_operator.php

 

(1) In general--The owner, master, manager, or agent of a vessel transporting passengers between ports in the United States, or between a port in the United States and a port in a foreign country, may not include in a regulation or contract a provision limiting--

(A) the liability of the owner, master, or agent for personal injury or death caused by the negligence or fault of the owner or the owner's employees or agents; or

(B) the right of a claimant for personal injury or death to a trial by court of competent jurisdiction.

(2) Voidness.-- A provision described in paragraph (1) is void.

- See more at: http://www.lipcon.com/no_limitations_on_liability_for_injury_death_by_shipowner_operator.php#sthash.VpiHRz4K.dpuf

 

 

FYI Doctors are not consider agents(unless they are employees) they are considered independent contractors.

Edited March 18, 2014 by smeyer418

[chengkp75]

I work in the health care field. Its not emergency medicine doctors who pay high malpractice insurance. I totally disagree with you that it would significantly increase the cost of a ticket. Florida does not require doctors to carry malpractice insurance at all. and between the person who is significantly hurt by some doctor's malpractice on a ship and can't get anything....and the cruise industry I think I would prefer if there was some reasonably remedy for the person who is hurt(not that I am opposed to malpractice reform) but malpractice reform and this should not mean the person is practically without a remedy at all.

 

BTW you are aware if the doctor was an employee of the cruise line they could not under US law disclaim liability...

 

Saying that Florida not requiring malpractice insurance is like saying that Florida does not require you to have life insurance. But is it prudent for a doctor to not carry insurance, even if not required? Given the plethora of litigation in the medical field in the US, what doctor does not carry it?

 

And if the doctor was a cruise line employee, how much would the insurance for the company rise for now assuming medical responsibility for hundreds of thousands of potential patients? I'd like an actuary's thoughts on that one.