Malpractice by ship doctor- no remedy?

[grand isle joe]

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.

 

....just don't offer the service of medical care on board....E-vac any case off the ship and let the local hell hole 3rd world hospital take care of the patient....problem fixed......and try going after some of those socialist regimes for compensation.....good luck.........

[Krazy Kruizers]

Thank you for the links.

Very interesting.

[greatam]

 

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

 

Same situation with the spas. They are contractors to the cruise line and their employees are all independent contractors to the cruise line although employees of the spa parent company. So if the spa employee burns the heck out of your face with some facial product, you again have NO recourse.

 

Sid, you and I generally agree on the legal stuff (just not on NYC directions) but on this one, I respectfully disagree. The cost to the cruise line (much higher wages to the doctor to cover his malpractice insurance) plus the "deep pocket" insurance of the cruise line individually would add a huge amount to cruise fares.

 

Do you know if the plaintiff had travel insurance and what part did any travel insurance play in the entire scenario???

[Ethel5]

Honest question here......

 

I was under the impression that the medical staff were not cruise line employees but contracted through an agency. So, if this is a fact, wouldn't the agency be liable in a malpractice suit?

[Hlitner]

Honest question here......

 

I was under the impression that the medical staff were not cruise line employees but contracted through an agency. So, if this is a fact, wouldn't the agency be liable in a malpractice suit?

 

I think the honest answer would be that nobody (and I mean nobody) really knows. If you do a legal search, the issue of medical liability on cruise ships is a real minefield. There are multiple federal and state court decisions (some contradictory) and this does not even include similar legal issues that probably exists in other jurisdictions like Canada and Europe. I read one court decision that held cruise lines liable and another that said they were not liable

[Hlitner]

Honest question here......

 

I was under the impression that the medical staff were not cruise line employees but contracted through an agency. So, if this is a fact, wouldn't the agency be liable in a malpractice suit?

 

I think the honest answer would be that nobody (and I mean nobody) really knows. If you do a legal search, the issue of medical liability on cruise ships is a real minefield. There are multiple federal and state court decisions (some contradictory) and this does not even include similar legal issues that probably exist in other jurisdictions like Canada and Europe. I read one court decision that held cruise lines liable and another that said they were not liable You can also do an internet search and find Florida attorneys who specialize in cruise ship legal issues. But even they do not always agree on medical malpractice suits. One article we read:

(http://www.cruiselawnews.com/2011/12/articles/passenger-rights/medical-malpractice-on-the-high-seas-do-cruise-passengers-have-any-rights/)

 

questions whether cruise passengers have any rights. But there are some attorneys willing to take these cases (for a very nice fee ).

 

What is also fascinating is to read all the legal wrangling's about jurisdiction. So, you want to sue a cruise line for malpractice....do you sue in your own state, in the home state of the cruise line (if it has an office in the US), etc. And if the physician is not licensed to practice medicine in the USA or Canada then can you possibly sue for malpractice in those countries? And then there are those pesky passenger contracts (that nobody reads) that either limits suits to one state or requires arbitration. A lawyer friend says those contracts are a real pest, but can often be overcome (but this must also be litigated).

 

What a nightmare. So do not get seriously ill or hurt on a ship :)

 

Hank

[chengkp75]

And if this was such an insignificant cost to the cruise line, but would result in better PR, why haven't they done it? Because it wouldn't be a minor cost, it would be an iceberg of cost, with hidden costs below the waterline.

[sparks1093]

What a nightmare. So do not get seriously ill or hurt on a ship :)

 

Hank

 

Actually you should avoid the physician's who don't know what they are doing and who commit malpractice, it's only when they screw up that it becomes an issue.;)

 

This is an interesting thread but I have to wonder how significant the problem is? I realize that it's nice to have an available remedy should something go wrong but no matter how hard we try we cannot protect ourselves from every contingency.

[smeyer418]

I think the honest answer would be that nobody (and I mean nobody) really knows. If you do a legal search, the issue of medical liability on cruise ships is a real minefield. There are multiple federal and state court decisions (some contradictory) and this does not even include similar legal issues that probably exist in other jurisdictions like Canada and Europe. I read one court decision that held cruise lines liable and another that said they were not liable You can also do an internet search and find Florida attorneys who specialize in cruise ship legal issues. But even they do not always agree on medical malpractice suits. One article we read:

(http://www.cruiselawnews.com/2011/12/articles/passenger-rights/medical-malpractice-on-the-high-seas-do-cruise-passengers-have-any-rights/)

 

questions whether cruise passengers have any rights. But there are some attorneys willing to take these cases (for a very nice fee ).

 

What is also fascinating is to read all the legal wrangling's about jurisdiction. So, you want to sue a cruise line for malpractice....do you sue in your own state, in the home state of the cruise line (if it has an office in the US), etc. And if the physician is not licensed to practice medicine in the USA or Canada then can you possibly sue for malpractice in those countries? And then there are those pesky passenger contracts (that nobody reads) that either limits suits to one state or requires arbitration. A lawyer friend says those contracts are a real pest, but can often be overcome (but this must also be litigated).

 

What a nightmare. So do not get seriously ill or hurt on a ship :)

 

Hank

 

assuming that the cruise that is mentioned was not one that ported in the US, my suggestion wouldn't change the result in that case either.

[smeyer418]

Honest question here......

 

I was under the impression that the medical staff were not cruise line employees but contracted through an agency. So, if this is a fact, wouldn't the agency be liable in a malpractice suit?

no in general physicians are independent contractors paid that way(piece work). In general the fact that they(doctprs) are "hired" through a third party doesn't make the third party liable. Its true in hospital emergency rooms too! They are rarely employees of the hospital either but because of a theory called negligent retention the hospital is liable anyway(except in states where the hospital has immunity by law)

[smeyer418]

Same situation with the spas. They are contractors to the cruise line and their employees are all independent contractors to the cruise line although employees of the spa parent company. So if the spa employee burns the heck out of your face with some facial product, you again have NO recourse.

 

Sid, you and I generally agree on the legal stuff (just not on NYC directions) but on this one, I respectfully disagree. The cost to the cruise line (much higher wages to the doctor to cover his malpractice insurance) plus the "deep pocket" insurance of the cruise line individually would add a huge amount to cruise fares.

 

Do you know if the plaintiff had travel insurance and what part did any travel insurance play in the entire scenario???

 

travel insurance(in general) covers medical costs and cost of evacuation back to the US. There would be an issue of subrogation if a lawsuit takes place. but not lost income or others costs(such as life time care)

 

There are cases about the spa employees being sued. You have a better chance of being able to sue the spa employee than a doctor. The spa employees are employees of the spa normally a leased company. Those leased companies are primarily based in the US. Also as seen below, the cruise line still retains primary responsible to maintain the space.

 

"$800,000 settlement on the final day of trial for a cruise ship passenger who suffered injury from a loose seat in a cruise ship spa. The passenger was seated on a stool at the spa when, because of negligent maintenance and inspection, the loose seat came off, causing her to fall 4 to 5 feet to the ceramic floor and suffer through nearly 8 years of extensive medical treatment for her back, as well as what is likely a lifetime of chronic back pain."

 

 

In the US if you go into a department store and they have a beauty salon, the probability is the beauty salon is a leased operator. You can still sue the department store.

 

Hi Gina how are you!

Edited March 18, 2014 by smeyer418

[smeyer418]

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.

 

In Florida you are allowed to post a sign that says you carry no insurance! and then you put all your assets in your spouses name...

 

http://www.floridamalpractice.com/med20.htm

[smeyer418]

Actually you should avoid the physician's who don't know what they are doing and who commit malpractice, it's only when they screw up that it becomes an issue.;)

 

This is an interesting thread but I have to wonder how significant the problem is? I realize that it's nice to have an available remedy should something go wrong but no matter how hard we try we cannot protect ourselves from every contingency.

I don't think its a major problem! The doctors are generally competent. Like anyone they make an occasional mistake. That is why it wouldn't add much to the cruise cost to have some remedy when it happens. Its only a major problem when they commit malpractice on YOU or me for that matter.

Edited March 18, 2014 by smeyer418

[greatam]

Those leased companies are primarily based in the US. Also as seen below, the cruise line still retains primary responsible to maintain the space.

 

Isn't Steiner out of the UK?

 

 

Hi Gina how are you!

OT

 

Am at Bagram AFB. May be my last trip to the Middle East. My contract is up June 30 and they haven't sent me anything to renew, even on a short term basis like they did when the US was leaving Iraq. Sorting through mountains and mountains of paperwork trying to figure out what goes, what stays, what will clear USDA without spending more money to clean it and make it "worthy" of entry into the USA than it cost initially. Some of these governments regs are just stupid. How do you clean cereal in 25 pound bags?

 

The costs to get the MRAP's, tanks, helos and stuff like that home is astronomical just due to the cleaning costs. They all have to be cleaned, sterilized and SHRINK WRAPPED. It is quite the undertaking to see them shrink wrapping the helos and the Abrams. Most of the Abrams will stay in Kuwait. But we do bring the helos and MRAPS home.

 

Thanks for all the info. Still think it will add mega dollars to a cruise.

[smeyer418]

Gina safe trip home!

 

reasonably people can disagree. I just don't think it would add significantly to the cost of cruising. As I said its a rare occurrence and the cruise lines get sued anyway..but they mostly get the case dismissed anyway....as in this case they may not have gotten dismissed at all..only the doctor is out.(who may be a necessary party but that is for another thread).

[Murray's Pop]

Cruise lines differ in coverage for liability - some provide it, others don't.

 

If anyone has an interest in learning more about guidelines for medical care on cruise ships, go to the web site for the American College of Emergency Physicians (acep.org). In the Clinical & Practice Management section you can find information regrading cruise ship practice.

 

You can also find a listing, by cruise line, of requirements for ships physicians.

[smeyer418]

Cruise lines differ in coverage for liability - some provide it' date=' others don't.

 

If anyone has an interest in learning more about guidelines for medical care on cruise ships, go to the web site for the American College of Emergency Physicians (acep.org). In the Clinical & Practice Management section you can find information regrading cruise ship practice.

 

You can also find a listing, by cruise line, of requirements for ships physicians.

 

[/quote']

I posted a link to this before...

 

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

 

interesting Carnival indemnifies the physicians and HAL provides them liability coverage so they already pay for the coverage in some form...

http://www.acep.org/cruiselinedirectory/

Edited March 18, 2014 by smeyer418

[Murray's Pop]

Typically on HAL there are 2 physicians - a North American (generally US) board certified ER doc, who works for 2-3 weeks at a time and takes care of the passengers.

 

The second physician (generally from the Philippines) is assigned as the "crew" physician. This physician is also usually board certified in Emergency Medicine, and works on a more "full time" basis, that is about 4 months on and 2 months off (2 rotations for a 1 year contract).

 

The "crew" physician will provide back up coverage for primary doc, and will also see patients in times of greater need (Code Red conditions for Noro).

Edited March 18, 2014 by Murray's Pop

[smeyer418]

Typically on HAL there are 2 physicians - a North American (generally US) board certified ER doc' date=' who works for 2-3 weeks at a time and takes care of the passengers.

 

The second physician (generally from the Philippines) is assigned as the "crew" physician. This physician is also usually board certified in Emergency Medicine, and works on a more "full time" basis, that is about 4 months on and 2 months off (2 rotations for a 1 year contract).

 

The "crew" physician will provide back up coverage for primary doc, and will also see patients in times of greater need (Code Red conditions for Noro).[/quote']

I forgot to thank you for your first posting; and this too.

[Donray]

Did people read that the person filing the case did not specify what the malpractice was. They did not have signed statements from the doctors in Mexico that the ship doctor was totally negligent in the matter.

 

The filling would have gone no where even if the doctor had a different contract with the cruise line. It is very very hard to prove malpractice and especially when you have doctors Mexico that would need to testify and to get a doctor from a forging country into this country to face a CIVIL suite. One cannot be forced to come to this country to be sued.

 

Bottom line is the contract change would mean nothing.

[BlueRiband]

First, there is no debate that the passenger had a horrible ordeal. To be sick and require surgery is bad enough but to be sick and require surgery in a foreign hospital, far from home, makes it worse. From my reading of the legal site it appears her complaint is alleged failure to properly diagnose her condition and her deterioration might have been mitigated had she been hospitalized sooner in Haiti instead of later in Mexico.

 

I do have some hesitation over how this topic was titled. It seems to assume misdiagnosis on the part of the ship's doctor and entitlement to compensation toward the passenger. At the risk of getting flamed I would not say she is entitled to compensation solely because she suffered. I would want to see a cause/effect - that misdiagnosis led to her delay in getting proper care. We don't know how she presented her symptoms and medical history. Or if she tried to see if her condition would improve rather than check into a Haitian hospital. (Not a country known for medical tourism.)

 

What this case does illustrate is that we all take a risk by boarding a ship. Unlike a land based hospital a ship has no consulting specialists who can be called in. If a cruise line can be sued for medical malpractice they'll just exclude passengers with certain medical conditions. Already a women more the 24 weeks pregnant cannot sail. Why? Because they don't want to get sued for not having a NIC unit on board. Exclude advanced pregnancy - legal threat solved. Crohn's disease? Sorry.

[smeyer418]

First, there is no debate that the passenger had a horrible ordeal. To be sick and require surgery is bad enough but to be sick and require surgery in a foreign hospital, far from home, makes it worse. From my reading of the legal site it appears her complaint is alleged failure to properly diagnose her condition and her deterioration might have been mitigated had she been hospitalized sooner in Haiti instead of later in Mexico.

 

I do have some hesitation over how this topic was titled. It seems to assume misdiagnosis on the part of the ship's doctor and entitlement to compensation toward the passenger. At the risk of getting flamed I would not say she is entitled to compensation solely because she suffered. I would want to see a cause/effect - that misdiagnosis led to her delay in getting proper care. We don't know how she presented her symptoms and medical history. Or if she tried to see if her condition would improve rather than check into a Haitian hospital. (Not a country known for medical tourism.)

 

What this case does illustrate is that we all take a risk by boarding a ship. Unlike a land based hospital a ship has no consulting specialists who can be called in. If a cruise line can be sued for medical malpractice they'll just exclude passengers with certain medical conditions. Already a women more the 24 weeks pregnant cannot sail. Why? Because they don't want to get sued for not having a NIC unit on board. Exclude advanced pregnancy - legal threat solved. Crohn's disease? Sorry.

 

 

the telephone is an amazing tool you can get almost any place in the world a consult. With the internet digital xrays can be sent to look at as well as well as other test results. In some of the more remote areas of the United States this is how Medicine is practiced.

 

But let me add I have no way of knowing whether there was malpractice in this case. What I do know is that the case was dismissed not on the merits of whether there was malpractice but because there was no personal jurisdiction over the doctor and hence no remedy in case there was. How are malpractice cases decided? How do you get them to a trier of fact and not dismissed on motion? The plaintiff, normally through their expert who has reviewed the chart and probably not examined the patient says that in their expert opinion there was a deviation from accepted medical practice and that deviation resulted in an injury to the patient that could have been prevented.

Its based on what is in the medical record and xrays and tests. The burden of proof is on the plaintiff. If they can't prove these elements by a preponderance of the evidence, the case is dismissed on the merits not because the doctor couldn't be served. But they get a chance to prove that. In this case they don't get such a chance. You note that even though the doctor was not here they could get a disposition by skype(which has video capability).

On some cruise lines you will because you can get the doctor into court like HAL so for them its not such a burden.

All I have suggested is that for cruise that have start end or stop in the US, the cruise lines require the doctor to be sued in the same way they require the passenger to sue them in a specific court.(mostly Florida).

This doesn't cover everyone but it will cover a lot of them....IMO others may reasonable disagree.

 

Florida like many states requires that certain things be done prior to filing a malpractice lawsuit. It includes filing with the original papers an opinion from an expert physician that there has been malpractice see

http://floridahealthcarelaw.com/the-complexity-of-florida-medical-malpractice-law/

Edited March 19, 2014 by smeyer418