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

[cechase]

Sky Sweet, the basic element of an independent contractor relationship is A CONTRACT. The contract sets forth the tasks which the independent contractor will perform and/or services to be provided. Such contacts if carefully drawn can be quite lengthy. Thereafter, only the independent contractor determines how it, he/she will perform those services or tasks, and the entity hiring the independent contract only is legally interested with respect to obtaining performance by the independent contractor.

 

A number of the posters are very well informed with respect to legal claims against the legal profession. Yes, 85% of medical malpractice cases which actually go to trial and a jury end up in a defense verdict. However, in 15% of the cases, the verdicts tend to be very very large - almost as though the jury was a runaway jury. However, you have to remember that the vast majority of these claims are settled before trial, many for the limits of the Doctor, nurse, or hospital's insurance policy. In all situations, the attorney's fees and costs incurred in defending these claims, whether or not they go to trial is enormous, much more than other types of civil litigation.

 

Does the litigation of these claims affect each of us. Of course, the huge premiums for medical malpractice insurance, the costs of litigation as mentioned above, and the defensive practice of medicine which has become the norm all filters down to each of us in higher medical bills, higher hospital bills, and higher medical insurance premiums. Whether you like it or not, these claims affect all of us in higher costs.

 

For many years, I have always believed that there was a more efficient way to handle these claims other than civil litigation. During the last 10 years of my practice of law, I was appointed by the court to be the arbitrator of real estate and corporate issues, because that was my area of expertise. I handled many arbitration matters, usually ones which were somewhat complicated and which the courts were reluctant to hear. Instead of years of litigation and costs rising upwards, after appropriate discovery [requests for admissions, interrogatories and depositions] these matters were decided within ten days after hearings which ran from one day to at the most three days. The cost savings were enormous, with the parties being given a hearing [i was overly generous when it came to hearing testimony using my experience as a litigator to filter out heresay, irrelevant or otherwise inadmissible testimony.]

 

Many years ago, I proposed when a nominee for Congress, a similar procedure for medical malpractice claims. When things go wrong in the medical profession, there is almost always a peer review at the hospital level or with respect to physicians. The exact same thing is replicated in medical malpractice trials. The key testimony is from expert witnesses on each side, most often from doctors who specialize in what ever medical services are alleged to be negligent. It would certainly be more efficient to have an arbitration panel of three such specialist who hear the testimony and make a determination of whether or not negligence occured. With that issue resolved, then a civil jury could determine whether the amount of damages, or better yet, let the arbitration panel make that determination.

 

Since health care today is most likely our second largest expense after housing, the impact on us is very great. Even though this might be at the expense of the Trial Lawyers, the benefits would be considerable.

[jaxon41]

Interesting -- I touted something similar in my state, modeled after Indiana's system. Our state's venture into arbitration panels was ultimately ruled unconstitutional but only because of a non-fatal element in the scheme. That element was never addressed and the bill was never brought up again. Strange, as we have a saying -- Nothing ever dies in Springfield. It was a long time ago. With the internet, I should investigate Indiana -- wonder how their system has been working.

 

Our plan was such that the $$ decision of the panel could be appealed to the circuit court, but the finding of fact made by the panel was not appealable.

 

An earlier poster mentioned the California experience. My understanding was that tort reform did not lower premiums, as the poster said, but that insurance regulation did. The poster mentioned premiums coming down when docs could self insure. In my state, the largest medmalpractice insurer is a company owned by the docs and then they run to the capitol and scream about their premiums and rally for tort reform! It's a hoot. Meanwhile they gave the CEO of the insurance company, who later was indicted in a government corruption scandal, something like a 6 million dollar severance package. You just gotta love politcs!

[smeyer418]

Boy this thread has gotten off point.

Anything that makes it easier for people to sue, will not save money.

There is a difference between self insurance and having a captive physicians insurance company. Many captives have gone bankrupt. NJ as an example.

The reason that they called arbitrators is that the are arbitrary. The process is simpler and cheaper because even if they make a mistake in fact or law its NOT appealable. Most law say you can appeal for three reasons corruption of an arbitrator, an imperfect award that cannot be corrected(like making you owner of the moon) or a violation of a specific public policy(my best example of this is your would think it is a violation of public policy for a public employee to take a bribe- there is at least one case in NY that said that as long as there was not an automatic removal for conviction of a misdeamor for a public employee(there isn't there is one for a conviction of a felony) the fact that an aribrator didn't fire a bribe taking employee could not be set aside as a violation of public policy.

 

and finally taking away the profit motive...that does include making physicians employees and taking away there profit motive, or GE's making Cat scans???

 

I do favor universal insurance. Making sure everyone is covered would bring the cost down....but that is another long story..

 

One of my favorite stories is the exec directot of the NJ Physicians assocation proposed loser pays the attorneys fees in lawsuits. Makes a good sound bite but the reality is it would wind up added 25% to the cost of physician insurance in any state. Why you ask. Most people who sue don't have the ability to pay the legal fees and the reality is that the judges find excuses in the employment law situations where legal fees are authorized to avoid making poor plaintiffs pay, so in reality the only one that will pay is the insurance company when it loses.

 

Off topic....the issue is whether the cruise line should be responsible. The actual issue is who is better able to pay the malpractice and to do something about it. So when you hire someone to clean your house you are responsible because you have the better ability to pay(and to buy insurance) if he/she hurts someone, and will be careful if you are responsible. So to a cruise line will be more careful, if they are responsible. Perfect system of course not.

[Liat]

(a) Doctors everywhere are very often independent contractors. This is true of most physicians in private practice in the US and elsewhere. They are NOT normally employees of the hospital where they may be performing surgery, rendering E.R. care etc. Therefore the hospital is not liable for the doctor's negligence if he leaves a clamp inside you during surgery and sews you up.

The hospital might be liable for a nurse's negligence in not counting instruments, but that is a case by case determination .

(b) Therefore, if a cruise line signs up a doctor as an independent contractor. it is not by that fact alone, normally liable for his medical malpractice. The basic reason is that vicarious liability, that is, liability for the negligent acts of another, can only follow the right to control those acts, and a cruise line has no right or ability to control the medical judgment and medical acts of a licensed physician. [There can be some factual circumstances where there might be an exception, but this would be extremely rare, and we are talking normal liability and "normal" malpractice here.]

© Hospitals usually, and cruise lines could; require that any physician carry malpractice insurance as a condition of being allowed to use the medical facilities provided. For the limits on the benefits of this in a cruise situation, see (d and f) below.

(d) Many cruise doctors are foreign nationals. So even if a doctor carried insurance, by cruise line direction or on his (her) own; the insurance policy would not confer jurisdiction on a US court to render a judgment against him. And the insurance carrier has no obligation to pay its money in the absence of a legally binding judgment against its insured. Insurance companies are not known for charity in their payments on claims.

(e)This should not worry anyone too much since the standard of medical care in Western Europe, where many of these doctors come from, is in a number of respects higher than that provided in the good ol', medically second rate, USA.

(f) But, as foreign nationals, in foreign registry ships; acting outside the USA in international waters or in foreign countries for the most part; such doctors would not be subject to the tort (negligence liability) jurisdiction of a US court. And since passengers form no contractual relationship with a ship's doctor (who is not an employee of the cruise line), simply by booking a cruise; there can be no contractual basis for a lawsuit against the doctor either.

(g) How about requiring liability insurance for cruise lines? As a matter of fact most major US corporations do NOT carry liability insurance. They are self-insurers since that is usually cheaper for a big company. There is no law requiring such insurance in most cases. Certain industries, especially motor carriers, are required to show either proof of financial responsibility or insurance; but that is enforced by laws requiring licenses to carry people or property on state highways.

(h) Since virtually all cruise lines are foreign companies, there would be little way to enforce an insurance requirement unless the U.S. Congress, the only body with a semblence of jursidictional authority, chose to adopt a law barring foreing vessels from docking in US ports without proof of insurance. This is not going to happen in the absence of some showing of true national interest, a showing which will not be met by in isolated medical malpractice case or two.

(i) The mere filing of a lawsuit, and the ruling of a court on a motion to dismiss does not show that there is such danger to cruise ship passengers that barring an industry such as this from the US for lack of insurance is needed. The cruise companies doing business here are usually finacially solvent, and the addition of insurance would not add much, if anything, to passenger's protection.

 

Perhaps there is room for further dicussion.

 

!

[cechase]

I would concur with much that Liat has stated in his post. When it comes to expertise by physicians and their education, those from Europe and Eastern Europe have had an education and post degree education which is equal or superior to that in the United States. Many of you might be surprised that there are many physicians in the United States from India, who have had absolutely no problem in completing their residencies and boards. India has for some of its citizens, but not all, schools and colleges which are equal to or superior to those in the United States.

 

Liat is extremely knowledgeable from a reading of his post, but am not certain that he is a lawyer. My exception to his statements and opinions relates to the jurisdiction for a medical malpractice lawsuit which is brought against a cruise ship health care provider and the cruise ship line. Consider that the principal offices of Celebrity Cruise Lines is in Miami, Florida, that contracts by pax to travel on their vessels is made in Miami, Florida, contact concerning cruises and issues regarding booked cruises is handled in Miami, Florida, and for Celebrity Cruise Lines to engage in such business in Miami, Florida, even as a foreign corporation, it must qualify as a foreign corporation in Miami, Florida. The latter qualification under Florida laws confers jurisdiction against at least Celebrity upon the Florida courts. [For many years while an attorney in California, I incorporated a Florida corporation as a subsidiary of my corporation client, merged the subsidiary into the parent, and then had to qualify the parent as a foreign corporation doing business in Florida.] Therefore, I would be of the opinion that the above creates sufficient nexis for a court in Florida to accept jurisdiction of a malpractice action.

 

Liat, a great post and thank you. To all other posters, this is a very interesting thread, and sort of makes this old "legal eagle" do a little thinking after five years of wonderful retirement. :D

[Liat]

I would concur with much that Liat has stated in his post. When it comes to expertise by physicians and their education, those from Europe and Eastern Europe have had an education and post degree education which is equal or superior to that in the United States. Many of you might be surprised that there are many physicians in the United States from India, who have had absolutely no problem in completing their residencies and boards. India has for some of its citizens, but not all, schools and colleges which are equal to or superior to those in the United States.

 

Liat is extremely knowledgeable from a reading of his post, but am not certain that he is a lawyer. My exception to his statements and opinions relates to the jurisdiction for a medical malpractice lawsuit which is brought against a cruise ship health care provider and the cruise ship line. Consider that the principal offices of Celebrity Cruise Lines is in Miami, Florida, that contracts by pax to travel on their vessels is made in Miami, Florida, contact concerning cruises and issues regarding booked cruises is handled in Miami, Florida, and for Celebrity Cruise Lines to engage in such business in Miami, Florida, even as a foreign corporation, it must qualify as a foreign corporation in Miami, Florida. The latter qualification under Florida laws confers jurisdiction against at least Celebrity upon the Florida courts. [For many years while an attorney in California, I incorporated a Florida corporation as a subsidiary of my corporation client, merged the subsidiary into the parent, and then had to qualify the parent as a foreign corporation doing business in Florida.] Therefore, I would be of the opinion that the above creates sufficient nexis for a court in Florida to accept jurisdiction of a malpractice action.

 

Liat, a great post and thank you. To all other posters, this is a very interesting thread, and sort of makes this old "legal eagle" do a little thinking after five years of wonderful retirement. :D

 

Yes I am a lawyer. Retired in 2000 as Chief Assistant City Attorney of the City of Phoenix, but still licensed and active in the ADR field. My jurisdiction issue was not with the cruise line; and I agree with your position in that regard. What I did question was a US court's personal jurisdiction over a cruise ship doctor who is a foreign resident and national and whose malpractice acts would probably have occured in either a foreign port or international waters. [if the good doc goofed while in a US port, there could well be "situs" jurisdiction in the courts of the state where docked - although serious cases are normally sent to shore hospitals if the boat is in a port.]

A cruise line can, as you said, be reached jurisdictionally under the "minimum contacts" rule; but I doubt that this would be sufficient to reach a doctor who is an independent contractor; conducts no business of his own in the US, maintains no office here, makes no sales in the US; etc, etc. Having a weak daiquiri or a key lime pie in a Miami restaurant once every two weeks doesn't cut it, I would say.

[Liat]

I would concur with much that Liat has stated in his post. When it comes to expertise by physicians and their education, those from Europe and Eastern Europe have had an education and post degree education which is equal or superior to that in the United States. Many of you might be surprised that there are many physicians in the United States from India, who have had absolutely no problem in completing their residencies and boards. India has for some of its citizens, but not all, schools and colleges which are equal to or superior to those in the United States.

 

Liat is extremely knowledgeable from a reading of his post, but am not certain that he is a lawyer. My exception to his statements and opinions relates to the jurisdiction for a medical malpractice lawsuit which is brought against a cruise ship health care provider and the cruise ship line. Consider that the principal offices of Celebrity Cruise Lines is in Miami, Florida, that contracts by pax to travel on their vessels is made in Miami, Florida, contact concerning cruises and issues regarding booked cruises is handled in Miami, Florida, and for Celebrity Cruise Lines to engage in such business in Miami, Florida, even as a foreign corporation, it must qualify as a foreign corporation in Miami, Florida. The latter qualification under Florida laws confers jurisdiction against at least Celebrity upon the Florida courts. [For many years while an attorney in California, I incorporated a Florida corporation as a subsidiary of my corporation client, merged the subsidiary into the parent, and then had to qualify the parent as a foreign corporation doing business in Florida.] Therefore, I would be of the opinion that the above creates sufficient nexis for a court in Florida to accept jurisdiction of a malpractice action.

 

Liat, a great post and thank you. To all other posters, this is a very interesting thread, and sort of makes this old "legal eagle" do a little thinking after five years of wonderful retirement. :D

 

Yes I am a lawyer. Retired in 2000 as Chief Assistant City Attorney of the City of Phoenix, but still licensed and active in the ADR field. My jurisdiction issue was not with the cruise line; and I agree with your position in that regard. What I did question was a US court's personal jurisdiction over a cruise ship doctor who is a foreign resident and national and whose malpractice acts would probably have occured in either a foreign port or international waters. [if the good doc goofed while in a US port, there could well be "situs" jurisdiction in the courts of the state where docked - although serious cases are normally sent to shore hospitals if the boat is in a port.]

A cruise line can, as you said, be reached jurisdictionally under the "minimum contacts" rule; but I doubt that this would be sufficient to reach a doctor who is an independent contractor; conducts no business of his own in the US, maintains no office here, makes no sales in the US; etc, etc. Having a weak daiquiri or a key lime pie in a Miami restaurant once every two weeks doesn't cut it, I would say.

[Sky Sweet]

I would concur with much that Liat has stated in his post. When it comes to expertise by physicians and their education, those from Europe and Eastern Europe have had an education and post degree education which is equal or superior to that in the United States. Many of you might be surprised that there are many physicians in the United States from India, who have had absolutely no problem in completing their residencies and boards. India has for some of its citizens, but not all, schools and colleges which are equal to or superior to those in the United States.

 

Liat is extremely knowledgeable from a reading of his post, but am not certain that he is a lawyer. My exception to his statements and opinions relates to the jurisdiction for a medical malpractice lawsuit which is brought against a cruise ship health care provider and the cruise ship line. Consider that the principal offices of Celebrity Cruise Lines is in Miami, Florida, that contracts by pax to travel on their vessels is made in Miami, Florida, contact concerning cruises and issues regarding booked cruises is handled in Miami, Florida, and for Celebrity Cruise Lines to engage in such business in Miami, Florida, even as a foreign corporation, it must qualify as a foreign corporation in Miami, Florida. The latter qualification under Florida laws confers jurisdiction against at least Celebrity upon the Florida courts. [For many years while an attorney in California, I incorporated a Florida corporation as a subsidiary of my corporation client, merged the subsidiary into the parent, and then had to qualify the parent as a foreign corporation doing business in Florida.] Therefore, I would be of the opinion that the above creates sufficient nexis for a court in Florida to accept jurisdiction of a malpractice action.

 

Liat, a great post and thank you. To all other posters, this is a very interesting thread, and sort of makes this old "legal eagle" do a little thinking after five years of wonderful retirement. :D

 

i agree with what you said about the qualify of medical schools in Europe, but would like to ask you a question. Do you think there is a difference between a doctor who was educated in Europe because he lived there at the time, and an American who went to medical school in Europe because he was rejected from every American Medical School where he applied?

[cechase]

Sky Sweet you sure ask a very difficult question, and I am not certain that I have the answer.

 

If you might recall, President Regan invaded the Island of Grenada to rescue American students at a medical school there. My question at the time was why go to that medical school, and how good could that education be on that small island.

 

There is a corollary dispute going on in the legal profession in California regarding non ABA recognized law schools in Califonia. [Am still a member of the California Bar Association, although with the designation "Inactive" so I still get their publications.] One side points out that graduates of the non ABA recognized law schools have a very dismal passage rate on the California Bar Exam, which is very difficult. The other side points out some success stories, and points out that working adults only chance to study law is at night, hence Stanford, Bolt Hall at University of California, Hastings College of Law, University of California [my alma mater], USC, UCLA or others are not available to them.

 

Personally, if I required the services of a lawyer, I would very much be interested in the law school he or she attended, and of course, references and a discourse concerning his or her experience. Almost five years ago, when I moved here after retirement, I required the services of a lawyer who specialized in probate, wills and trusts [even though I was extremely experienced in those areas.] After getting a number of references, I actually researched those recommended very carefully. The sad thing is that a computer literate person can research lawyers to a degree, but it is almost impossible to do that with doctors.

 

So it is just my opinion, but I would be wary of a physician practicing in the United States, who obtained his medical degree from a foreign county, including Europe.

[greeneg]

If I may add here, there is no question that there are both excellent sources of medical training overseas as well as the classic "diploma mills". One area of protection, at least for people living in the United States, is that Foreign Medical Graduates are required to pass a standardized test (ECFMG -link for more information: http://www.ecfmg.org/ ) before they can qualify for either Specialty Training ( Residency) or State Licensure. I am not aware of any State in the US that would allow a non-ECFMG Certified Physician an un-restricted License to Practice Medicine.

 

This protection, of course, would not apply to a Physician whose practice is based on a Foreign Flag Vessel in International Waters, but I personally would find it hard to believe that a major cruise line would not properly investigate a Physicians Credentials just as diligently as they would any other Senior Officer. That is not to say that people sometimes don't slip through the cracks, but I still have to believe that a reasonable process must exist and be followed.

 

I have been fortunate not to have needed any of the services of my Colleagues at Sea; however, I have had the opportunity to speak with them on several occasions, and at least on the surface, they seem to be pretty much like physicians anywhere.

 

At least to me.

[hermang]

Sky Sweet you sure ask a very difficult question, and I am not certain that I have the answer.

 

If you might recall, President Regan invaded the Island of Grenada to rescue American students at a medical school there. My question at the time was why go to that medical school, and how good could that education be on that small island.

 

There is a corollary dispute going on in the legal profession in California regarding non ABA recognized law schools in Califonia. [Am still a member of the California Bar Association, although with the designation "Inactive" so I still get their publications.] One side points out that graduates of the non ABA recognized law schools have a very dismal passage rate on the California Bar Exam, which is very difficult. The other side points out some success stories, and points out that working adults only chance to study law is at night, hence Stanford, Bolt Hall at University of California, Hastings College of Law, University of California [my alma mater], USC, UCLA or others are not available to them.

 

Personally, if I required the services of a lawyer, I would very much be interested in the law school he or she attended, and of course, references and a discourse concerning his or her experience. Almost five years ago, when I moved here after retirement, I required the services of a lawyer who specialized in probate, wills and trusts [even though I was extremely experienced in those areas.] After getting a number of references, I actually researched those recommended very carefully. The sad thing is that a computer literate person can research lawyers to a degree, but it is almost impossible to do that with doctors.

 

So it is just my opinion, but I would be wary of a physician practicing in the United States, who obtained his medical degree from a foreign county, including Europe.

Do you know what they call the person who graduates at the bottom of his class in med school - Answer - DOCTOR.

 

Medical schools in many cases deliberately limit enrollment because they don't want too many doctors cutting into their livlihod so many doctors go abroad for training . Then when you need a doctor for a small town or small hospital - the only people available are foreign doctors who will work for less.

[greeneg]

Medical schools in many cases deliberately limit enrollment because they don't want too many doctors cutting into their livlihod so many doctors go abroad for training . Then when you need a doctor for a small town or small hospital - the only people available are foreign doctors who will work for less.

 

 

With no offense intended, Hermang, I think that's a little cynical. There are any number or reasons for the size of Graduating Medical Classes from available candidates to the physical size of facilities. With a growing population, increasing demand for services, and a restricted pool of potential candidates for admission, the number of US Medical Graduates may not fully meet the needs of the Country.

 

FMGs ( Foreign Medical Graduates) are no different from other legal immigrants. Given acceptable qualifications ( which they have if they are legal) they work hard, they appreciate the opportunity to be here, and they are valuable members of our communitites. They fulfill a need and we are lucky to have them with us.

 

It isn't all about the pursuit of the once-mighty Dollar.

[Sky Sweet]

Sky Sweet you sure ask a very difficult question, and I am not certain that I have the answer.

 

If you might recall, President Regan invaded the Island of Grenada to rescue American students at a medical school there. My question at the time was why go to that medical school, and how good could that education be on that small island.

 

There is a corollary dispute going on in the legal profession in California regarding non ABA recognized law schools in Califonia. [Am still a member of the California Bar Association, although with the designation "Inactive" so I still get their publications.] One side points out that graduates of the non ABA recognized law schools have a very dismal passage rate on the California Bar Exam, which is very difficult. The other side points out some success stories, and points out that working adults only chance to study law is at night, hence Stanford, Bolt Hall at University of California, Hastings College of Law, University of California [my alma mater], USC, UCLA or others are not available to them.

 

Personally, if I required the services of a lawyer, I would very much be interested in the law school he or she attended, and of course, references and a discourse concerning his or her experience. Almost five years ago, when I moved here after retirement, I required the services of a lawyer who specialized in probate, wills and trusts [even though I was extremely experienced in those areas.] After getting a number of references, I actually researched those recommended very carefully. The sad thing is that a computer literate person can research lawyers to a degree, but it is almost impossible to do that with doctors.

 

So it is just my opinion, but I would be wary of a physician practicing in the United States, who obtained his medical degree from a foreign county, including Europe.

 

Hi Cechase:)

 

Thank you for taking the time to respond to my question. I agree with your perspective on this issue. In my opinion, there are two major characteristics that distinguish the best physicians from the rest. These factors are superior diagnostic skills, which is largely determined by innate intelligence, and keeping up with new developments in their field through professional journals and conferences. While there is no fool proof way to find these doctors, I feel that physicians who were top students at the best colleges and medical schools are more likely to have the intelligence and love for learning that are needed to be excellent doctors.

[Sky Sweet]

Do you know what they call the person who graduates at the bottom of his class in med school - Answer - DOCTOR.

 

Medical schools in many cases deliberately limit enrollment because they don't want too many doctors cutting into their livlihod so many doctors go abroad for training . Then when you need a doctor for a small town or small hospital - the only people available are foreign doctors who will work for less.

 

I disagree and think enrollment is limited because Medical Schools are very expensive to run, so they prefer to accept people who have what it takes to be an asset to their profession.

[cechase]

For over 40 years, I never had to face a change of doctors until I retired from the San Francisco Bay Area to the Reno Area in 2002. I was very fortunate, being able to have a complicated operation at Stanford University Hospital, getting the best care for a Heart Attack at age 52, and several years before retiring having angiplasty and implantation of stents by the best cardiologists in the country.

 

So I tried to get referrals from my present physicians, and that was only moderately successful. Was referred to a Stanford trained cardiologist here, and to an eye doctor who turned out to be excellent.

 

While spending 16 days in a hotel room awaiting the completion of my new home here, got on the internet to find an internest as my primary doctor with little success. Finally, a little light bulb went off, and I was able to have a nice chat with three nurses and asked their recommendations. They were quite diplomatic and each recommended several or more doctors. However, they all mentioned one doctor, and he has turned out to be outstanding.

 

I guess if I did it again, I would follow the same procedure, including an interview. Unfortunately for those who followed me, he is no longer taking any more patients. That is a problem with the really good ones.

[greeneg]

And that, Charlie, really is the "right" way to find a new doctor. When I was in practice, I always wanted to meet ( interview is the wrong word) and talk with potential new patients about what their needs were and how I prefered to approach problems. Each of us had the opportunity to get a feel for what our mutual expectations were and to get not to be total strangers.

I always thought that both I and the patients were much happier that way.

Of course, that was in a different era....;)