Court Case: Can Cruiseline be sued for medical malpractice onboard?

[arabrab]

Story in Newsday's online edition on a key case up for decision in the Florida Supreme Court. The suit arises from an alleged malpractice incident on-board a Celebrity ship, but it could have ramifications for the larger cruise industry since many set Florida as the venue for all legal actions brought by passengers.

 

 

http://www.newsday.com/news/nationworld/nation/sfl-zcarlisle17jul17,0,737381.story?coll=ny-leadnationalnews-headlines

[dmk]

Thanks for posting a very interesting story.

[Magwa]

A very difficult situation

http://www.paramuspost.com/article.php/20060515182749123/print

[smeyer418]

Florida Law and most law makes the hirer(the cruise lines) responsible for those it hires if employees, its when they are independent contractors were it gets more difficult. Whether there was malpractice at all must await a trial at this point all you have are allegations. Even though there is a specific exclusion in the contract most courts won't recognize such an exclusion. There isn't that much malpractice on cruise ships(not as much as by physicians as a whole.) Yes there is some. Cruise ships are relatively careful about who they hire and this will make them a little more careful. Florida as a state is not very friendly to malpractice law suits(Florida is one of the few states that doesn't require its doctors to carry malpractice insurance). By the way its not only the venue(the place to bring a lawsuit) issue but what law is chosen to cover the case at hand.

[greeneg]

Appendicitis is often referred to as the great "mimic" by a lot of Doctors; in children particulaly, it can be very difficult to diagnose early in the course of the disease. In very young children, the percentage of ruptured appendices tends to be inversly proportional to the age of the child; in other words, the younger the patient, the more likely that the diagnosis will not be made prior to rupture. More modern imaging techniques can change that picture, but relatively few ( if any ) cruise ships carry that sort of equipment and, truth be told, the need for that sort of thing is pretty small.

 

All that can be reasonably expected is that the Doctor use his or her skills to the best of their ability in the best interests of the patient.

 

If everyone were med-evaced off of the ship because of "suspected this or suspected that" , a cruise ship would look something like a Helicopter Carrier and have a similar pattern of flight operations......

 

The only professions of which I know that have batting averages of 100% are the Tax Collector and the Undertaker.......:)

[woodofpine]

Most case reporting gets twisted pretty far out of shape by general media.

 

There isn't that much malpractice on cruise ships(not as much as by physicians as a whole.)

 

smeyer - you're a legal eagle right - what makes you say that (?) given the shortage of emipirical data and reporting... Have there been studies done(?), or is that your personal intuition on it?

 

Given the growth of the cruise industry, and the fact we all - including the lines - discuss the lines in terms of "product" and "brands", some sort of shift to a more product liability orientation where infirmary medical services are a "component" is likely to occur. Times do change and the public (and its jurists) will not accept forever some of the jurisdictional shell games and theory layering that have benefitted the industry - stuff that made more sense historically but less so presently.

[cechase]

Ed Green, I do agree with your analysis. Just as with doctors, lawyers have a similar situation. When I started practicing law, legal malpractice actions were a complete rarity. However, times sure did change, and my little boutique law firm carried a ton of malpractice insurance, because as senior partner my practice was real estate and corporate and my partners [all women who were fantastic lawyers] practiced family law. Thank god, I am retired, and have a "tail" on our malpractice coverage.

 

That said, and to get back to the point of this thread, it is my understanding that on Celebrity [maybe not other cruise lines] that the medical staff and doctors on their vessels are independent contractors. Celebrity merely provides the "real estate" to them, and does not have any control or power to supervise their medical practice. The closest Celebrity comes to the operation is to include charges in the infirmary on the passenger's SeaPass [know this from experience when my DW had to go to the infirmary twice on one cruise for a fever of 102-103]. I am of the opinion that this is not sufficient to create a nexis between Celebrity and its independent contractor.

 

Obviously, Celebrity could be grossly negligent in its selection of the independent contractor and that could open an avenue for a plaintiff's lawyer to walk through. Mere negligence in selection would be a tougher road to travel in my opinion. I mention this last opinion, because the medical profession in my opinion is very protective of those in the profession, and obtaining good information on a proposed independent contractor [and his or her staff] is very difficult - much like running into a "wall of silence".

 

If I were advising Celebrity, and of course not in a position to do so :D, I would require that the independent contractor carry high limits of medical malpractice insurance and prove the existence of the same. And Celebrity, should ensure that its underlying insurance coverage as well as its umbrella coverage include an endorsement covering it for possible liability for negligence caused by an independent contractor.

 

I say the above as one being fortunate who never had a malpractice claim in 38 years of the practice of the law. As Ed perhaps implied, I was probably lucky!

[smeyer418]

Most case reporting gets twisted pretty far out of shape by general media.

 

 

 

smeyer - you're a legal eagle right - what makes you say that (?) given the shortage of emipirical data and reporting... Have there been studies done(?), or is that your personal intuition on it?

 

Given the growth of the cruise industry, and the fact we all - including the lines - discuss the lines in terms of "product" and "brands", some sort of shift to a more product liability orientation where infirmary medical services are a "component" is likely to occur. Times do change and the public (and its jurists) will not accept forever some of the jurisdictional shell games and theory layering that have benefitted the industry - stuff that made more sense historically but less so presently.

 

I work in the health care field. Florida has more malpractice than most states(law suits per physican). Cruise ships have less---and they tend to be less servere. Worst lawsuits are among ob-gyn(monetary wise) and there are very few on cruise ships. It comes from my experience in dealing with Mal Practice insurance carriers...

[smeyer418]

Celebrity could be grossly negligent in its selection of the independent contractor and that could open an avenue for a plaintiff's lawyer to walk through. Mere negligence in selection would be a tougher road to travel in my opinion. I mention this last opinion, because the medical profession in my opinion is very protective of those in the profession, and obtaining good information on a proposed independent contractor [and his or her staff] is very difficult - much like running into a "wall of silence".

 

If I were advising Celebrity, and of course not in a position to do so :D, I would require that the independent contractor carry high limits of medical malpractice insurance and prove the existence of the same. And Celebrity, should ensure that its underlying insurance coverage as well as its umbrella coverage include an endorsement covering it for possible liability for negligence caused by an independent contractor.

 

I say the above as one being fortunate who never had a malpractice claim in 38 years of the practice of the law. As Ed perhaps implied, I was probably lucky!

 

Rreasonable people can disagree. I think the standard of gross neglience might be needed for punative damages but ordinary neglience is sufficent for damages in a negligent hiring case. Also the National Practioners Data Bank and state registry's of actions against doctors contains both information on lawsuits decided against a doctor and any state action against a license. and the wall of silence between doctors is much less than it was years ago. Foreign countries differ and hiring a non-us trained doctor may be an issue of neglience per se if you use an American standard(you could prove the equivalency of you have to)...

[greeneg]

One of the things that might have to be factored in is that the standard of care on board a ship at sea, and the standard of care ashore might well be somewhat different.

 

I think that any cruise line would be expected to use reasonable diligence in the hiring and retention of medical personel just as they would be expected to use in the hiring of other professionals such as the Officers and men who are responsible for running the other departments on board. Certainly one would expect due diligence on the part of the Line in the credentialling process. Beyond that, I find it hard to appreciate how they could be held responsible in a rational proceeding.

 

In this Country, we have come to the point where some of us believe that someone has to pay for a bad result, no matter how good or effective the use of available resources, or the effort made on the patients behalf; bad result ( real or imagined) and someone HAS TO PAY!! Like so much in Today's World, it is always someone's ( usually some one else's ) FAULT.

 

Not being an attorney myself, I couldn't be certain, but I have a feeling that the comparison would have to be made on a "Standard of Care at Sea" basis and not one based on the Standard of Care in Florida. Given that, I should think that it be a relatively difficult sort of case to prove.

 

Of course, there is also the old saying that there is no predicting what " twelve fools might do".

[smeyer418]

Ed I don't disagree with you. The difference between being dismissed on motion and having to go to trial in this case is whether the cruise line has any responsibility at all not what is the standard of care. The decision is only on whether the lawsuit can go forward at all. Whether there has been a violation of any standard of care would only come after testimony on the issue of what was done. You don't hold an emeregency sitituation to the same standard as a non-emergency. But these are issues that a trier of fact(a jury) would decide most of the time. The plaintiff would nirmally have to produce "an expert" to say that the standard was violated. I am sure there would be some argument over what the standard was. Its not neglience when a doctor uses his professional judgement over two alternative treatments. It is neglience if the treatment that doctor choses is not the standard of care for that illness/injury. I could give example but this is long enough anyway. For the negligent hiring issue someone would have to testify on what the minimum acceptable checking on a physician is( I can tell you from a network of physicians point of view but it may be higher or lower for a cruise ship)...

[Desertbelle]

Story in Newsday's online edition on a key case up for decision in the Florida Supreme Court. The suit arises from an alleged malpractice incident on-board a Celebrity ship, but it could have ramifications for the larger cruise industry since many set Florida as the venue for all legal actions brought by passengers.

 

 

http://www.newsday.com/news/nationworld/nation/sfl-zcarlisle17jul17,0,737381.story?coll=ny-leadnationalnews-headlines

 

It was a Carnival ship, not a Celebrity ship....just to set things straight. :)

[excitedofharpenden]

It was a Carnival ship, not a Celebrity ship....just to set things straight. :)

No, it quotes Carnival as another case being fought, but the main story is of a Celebrity cruise.

 

Phil

[woodofpine]

smeyer - thanks for the info background...

 

To the other "tort reformed" posters... the 12 fools (actually 6 generally) render defendant verdicts (physician favorable) in about 85% of the med mal cases that go to trial in Florida. But,

 

According to separate studies conducted in California by CMA/CHA (med and hospital assns.) as well as an interesting study by Harvard Med School of New York state many years back - only about 10% of med mal results in ANY CLAIM WHATSOEVER (suit or non-suit). The somewhat shocking results in the New York study were that during the year studied physicians and hospitals caused more patient deaths (absolute numbers) than homicides and drunk driving deaths combined during the same period there! (That's not a particularly useful number but it's an interesting one tort reformers were mum to). Suit filings were significantly less, <10% of significant incidents identified.

 

There hare been plenty of cases against all the bigger lines over the years to present. The Carlisle Case has certain facts (which now go back a few years) that might distinguish it from the lines' present business method. Facts cited by the court as significant were that Carnival's physician was "salaried". I think many lines now try to create an independant medical concession so that the independance of the "independant contractor" claim has more merit. In the same way that, generally speaking, hospitals in Florida are not liable for physician negligence ('we just provide the building') but hospitals are liable for the negligence of employee-staff (nurses and some technicians).

 

As for insurance, Carnival carried $1M coverage on its physician in Carlisle. I think the Court also looked at who - exactly - was paying the premium...

[Sky Sweet]

My understanding is that medical malpractice exists when a doctor makes a serious mistake that most of his peers would not have made. It is not when a patient is unfortunate enough to suffer consequences from a medical procedure, that are a well known side effect. The problem with many medical malpractice cases is that most juries don't differentiate between the two and often make decisions based on sympathy rather than reality.

 

The issues pertaining to what consititutes medical malpractice become more complicated when you are dealing with medical care outside of your country. My friend developed an eye infection in Africa when sand blew into her eye while on Safari, and went to a doctor in Africa for emergency medical treatment at the time. When she got home, her doctor told her that she was treated with a medication that hadn't been used in the United States for over 15 years, and changed her course of treatment. Even though this medication had not been used in the US for over 15 years, it was what is commonly used in Africa, so it wasn't malpractice. With this in mind, I think we are opening up a can or worms if we apply parameters for medical malpractice to doctors on a cruise ship based on our expectations of physicians in our own country.

[greeneg]

Good post, I would pretty much agree with everything that you say, particularly your definition of malpractice. You are also correct that juries often appear to decide things on the basis of sympathy rather than fact; it's the idea that if a bad result is obtained, then some sort of compensation has to be provided. Whether or not, the bad result is connected with some sort of mistake, or is just plain bad luck is not a factor: the patient has to be compensated, by someone or something........

 

Many physicians will point out that some of this relates to the fact that we have an adversarial legal system and cases are "won" or "lost", rather than being decided on the basis of "Right" or "Wrong" ( whatever that is). Merit is not necessarily the deciding factor.

 

But the net, bottom-line cost of all this "compensation" is, of course, passed along and shared among all of the users of the Health Care System as increased Health Care costs for everyone.

 

Perhaps the biggest cost increase, however, is the fact that most physicians today practice Defensive Medicine ( also known as CYA) in one form or another. This is only common sense and prudence and not a criticism in the least. However, it does result in a lot of unecessary ( and often useless and inappropriate) tests and studies, wasted physician time and other Healthcare Resources, and Increased Costs. This is at least part of why we have the most expensive Healthcare System in the World. It isn't the Best, but it is the most Expensive, and we pay for it every day.

 

Obviously this isn't the place to solve this issue, and we aren't going to do this easily or probably in the near future; there are simply too many, firmly entrenched interests, too deeply involved for that. However, we as a group certainly need to be aware of these issues and how they effect us as individuals, taxpayers, and consumers, and be aware and informed of what these issues are.

 

This is an election year, and someone needs to demand some explanations and some plans from some people befor the ballots are cast.

 

Sorry about the Soap Box, I'll get off of it now.....:)

[reader5]

Just to add my comments re the above, - on a recent Med cruise on board the Millennium I had occasion to visit the ship's doctor for a minor ailment. The physician could not have been more professional. He gave me a thorough going over, and explained in detail the root of my problem. I was extremely pleased with his diagnosis and treatment.

 

Of course this was not a serious problem but I feel confident that this doctor could have looked after any medical situation.

[Desertbelle]

No, it quotes Carnival as another case being fought, but the main story is of a Celebrity cruise.

 

Phil

 

Opps, my bad. :(

[Jimsgirl]

I am not a nurse or a doctor, however I did have a frist hand experience concerning appendicitis. It happened many years ago, (when medical care is assumed to be less knowledgable than now)

 

My son aged 11 had been complaining of a severe pain in his chest area. Being Military we put him in the car and took him to the base hospital. Examined at the receiving room, the medic sent for the medical officer, he came examined Peter, who pointed to the lower region of his sternum as the place that hurt. The doctor then bent down and smelled Peters breath He then ordered him prepped immediately for surgery, He told us Peter had appendicitis. Who ever heard of a pain in the chest for that.?

The doctor explained that regardless of the location, Peters breath had a strong smell of "acetone" and that was a "sure sign of appendicitis", He also explained that in rare cases, the appendix was located high up near the chest cavity.not low down in the side as with most cases.

 

Sure enough Peters scar was about 5 inches long from his sternum down to his navel, his appendix was in the "wrong place"

 

He would have died with a less knowledgable doctor.

[jaxon41]

Once again, these cases point to a need for US federal regulation. Foreign docs at sea -- outside US jurisdictions -- just like the criminal cases. Time for Congress to step up to the plate and pass some laws/regs for ships which do the bulk of their business in the US.

 

Just calling a doc an independent contractor won't fly unless the criteria for independent contracting is met -- a substantial one is that the independent supplies his/her own equipment. If the doc was truly "renting space" and the rent for the space included medical office equipment, then perhaps the independent claim could be made. Who sets the prices? Does the billing? Receives the money?

[cechase]

Once again, these cases point to a need for US federal regulation. Foreign docs at sea -- outside US jurisdictions -- just like the criminal cases. Time for Congress to step up to the plate and pass some laws/regs for ships which do the bulk of their business in the US.

 

Just calling a doc an independent contractor won't fly unless the criteria for independent contracting is met -- a substantial one is that the independent supplies his/her own equipment. If the doc was truly "renting space" and the rent for the space included medical office equipment, then perhaps the independent claim could be made. Who sets the prices? Does the billing? Receives the money?

 

I have to disagree with your comments. When considering whether or not one is an independent contractor, you have to ascertain whether or not another has any control or supervision over the services that the independent contractor is providing. In my experience, independent contractors do not provide the "space". However, it is not unusual for a contractor to provide the equipment, particularly if the equipment is located on a vessel or vehicle which the contractor has caused to be constructed. Frankly, I think you made your argument way too narrow.

 

The legal test is control and supervision of the services. For example, the lady who cleans our house, is totally unsupervised and not controlled by us. If she happens to use the vacuum in our closet, does that then make her an employee of ours?

[jaxon41]

I have to disagree with your comments. When considering whether or not one is an independent contractor, you have to ascertain whether or not another has any control or supervision over the services that the independent contractor is providing. In my experience, independent contractors do not provide the "space". However, it is not unusual for a contractor to provide the equipment, particularly if the equipment is located on a vessel or vehicle which the contractor has caused to be constructed. Frankly, I think you made your argument way too narrow.

 

The legal test is control and supervision of the services. For example, the lady who cleans our house, is totally unsupervised and not controlled by us. If she happens to use the vacuum in our closet, does that then make her an employee of ours?

 

As you probably know, the legal test is multi-pronged. Since the discussion had been about the practitioner "renting" space, I decided to address that one.

[woodofpine]

A lot of talk - leaning toward award caps and other tort reform - talks about the "cost" of the med mal litigation as passed on to the public. As if banning the rights of injured victims of negligence altogether would save YOU money, the ethical issue of that aside.

 

Nearly the entire expense of med mal is covered by the malpractice insurance premium that physicians are so very sensitive about.

 

The malpractice premium is paid to the lobbying insurance industry which pays physician and hospital legal defense expenses (insuror paid defense attorneys) with it; the premium utlimately pays the verdicts and non-trial settlements (which go to the claimants mostly with a lesser portion to tort lawyers) and it even generates a bit of insurer profit - yep.

 

Medical malpractice premiums consitute on the lower side of 1-2% of the nations health care budget.

 

So if you wipe out ANY and ALL patient compensation for serious injuries (an ethically tenuous position at best) you are going to achieve an overall savings in the health care system of what? Less than 2%, hmmm... sounds like the insurors are selling a bag of goods here (of sure its THEIR 1-2%).

 

California bought it and placed major caps on med malpractice (with some harsh results to consumers). After ten years, had mal practice premiums gone down? NO. Then legislation was enacted to allow physicians to self-insure through physician owned pools. One given this option, surprise, the industry's permium charges declined...

 

Of course saving us all that 1-2% means that the guy or gal whose WRONG leg or breast is removed gets ZERO (don't think it doesn't happen).

[greeneg]

I think that you are missing or over-simplifying a couple of issues here.

 

First of all, the costs of Defensive Medicine are largely hidden because it can be difficult to truely discern what is "necessary" and what is excessive: to the best of my knowledge, I'm not certain that this has really be studied objectively. More significantly, the total of those costs, I will bet, is much, much higher than anyone really supposes that it is: my thought is that it is an enormous sum of money.

 

I agree that simply capping or limiting patients rights to recover damages represents on the tip of the iceberg: however, improving the process ( perhaps by requiring arbitration or removing some of the incentive to progress frivilous lawsuites into the system) might well start restoring the Doctor-Patient relationship that has become so damaged. This would be difficult, given the contentious nature of current American Society in general, but I can assure you that there are significant Dollar Savings that would result from a successful effort.

 

I think that patients certainly have the right and expectation that a physician will use the very best of his or her skill to make the maximum effort to benefit them; I also think that patients need to be aware that not all efforts, no matter how skillful or how extensive, are necessarilly going to be successful, and that this is not anyone's "fault", but simply Reality. A physician who does his best should not be punished when "best" isn't good enough. There are always limits to what can and cannot be done; those limits can and should be pushed, but the clear message is that the absolute limits cannot be exceeded by even the most Heroic Efforts.

 

All of the players in this equation need to be involved in solving these issues: patient expectations need to be realistic, Physicians need to do their best as they have sworn to do, Attorneys need to paid appropriately for their work on their client's behalf, but winning a case should not be the financial equivalent of winning the Lottery. Finally, I have serious doubts as to whether or not our Health Care System can be left to the Private Insurance Industry: my personal feeling is that it would better to remove pure profit as a motivation with regard to the delievry of Health Care. Ultimately, Health Care Resources are a finite bucket of money and I am not convinced that that results in the best allocation of resources.

 

Sorry, friends, back on the Box again....:)

[Sky Sweet]

I have to disagree with your comments. When considering whether or not one is an independent contractor, you have to ascertain whether or not another has any control or supervision over the services that the independent contractor is providing. In my experience, independent contractors do not provide the "space". However, it is not unusual for a contractor to provide the equipment, particularly if the equipment is located on a vessel or vehicle which the contractor has caused to be constructed. Frankly, I think you made your argument way too narrow.

 

The legal test is control and supervision of the services. For example, the lady who cleans our house, is totally unsupervised and not controlled by us. If she happens to use the vacuum in our closet, does that then make her an employee of ours?

 

I agree that a company owner can supervise an employee, but not an independent contractor, but the distinction is not that simple. A business owner has the right to expect any independent contractor that he uses to adhere to the standards of professional practices that have been established by his/her profession, and can question any independent contractor who appears to be deviating from them. That is different than requiring an independent contractor to follow arbitrary rules that were not established by the profession itself, and should only exisit in an employer/employee relationship.