Question: Regarding medical care aboard cruise ships, which of the following is incorrect?
A. It is difficult to prove negligence because of jurisdictional issues.
B. The American College of Emergency Physicians has published practice guidelines.
C. Cruise line owners are immune from liability under the Barbetta rule.
D. The Franza decision may be a game changer.
E. Lawsuits are on the increase.
Answer: A. More and more people are cruising, with the number of passengers on North American lines reaching nearly 18 million in 2017, about one-third out of Florida. Medical illnesses and accidents predictably occur at sea, and unfortunately, substandard and negligent care occasionally follows some of these mishaps.
Dr. S.Y. Tan
However, up until recently, courts have immunized cruise line owners from legal liability by relying on the so-called Barbetta rule, which is based on historical notions of limited resources at sea and the impossibility of exerting control over the conduct of a ship’s health care providers.
A 2007 Florida case is illustrative. The doctor aboard a Carnival cruise ship failed to diagnose acute appendicitis in a 14-year-old girl who had complained of several days of abdominal symptoms. As a result, the patient ruptured her appendix, and this eventually resulted in sterility. The parents sued the cruise line, which denied liability because the doctor was not an employee, a fact specifically disclosed in the cruise ticket.
Although the doctor’s contract stated that he was an independent contractor, the District Court of Appeal of Florida reasoned that, in a claim based on agency, it is the right of control rather than actual control itself that matters.
It therefore held that: “for purposes of fulfilling cruise line’s duty to exercise reasonable care, the ship’s doctor is an agent of cruise line whose negligence should be imputed to cruise line ... regardless of the contractual status ascribed to the doctor” and to the extent cruise ticket sought to limit cruise line’s liability for negligence of doctor, it was invalid.
However, the Florida Supreme Court quashed this decision, because federal maritime law has historically protected shipowners from liability flowing from the medical negligence of shipboard physicians.1
The Barbetta rule was named after a 1988 case in which Florence L. Barbetta suffered serious medical complications during a Mexican cruise out of Florida. The ship’s doctor was alleged to have been negligent for his failure to diagnose diabetes.2 The lower court dismissed the case, and the appellate court affirmed.
The appellate court noted that an impressive number of courts from many jurisdictions have, for almost 100 years, followed the same basic rule: If the doctor is negligent in treating a passenger, that negligence will not be imputed to the carrier unless the carrier itself was negligent in hiring the doctor.
Citing approvingly from another case, the appellate court noted: “[A] shipping company is not in the business of providing medical services to passengers; it does not possess the expertise requisite to supervise a physician or surgeon carried on board a ship as a convenience to passengers. A ship is not a floating hospital; a ship’s physician is an independent medical expert engaged on the basis of his professional qualifications and carried on board a ship for the convenience of passengers, who are free to contract with him for any medical services they may require.”
However, courts now appear ready to jettison this rule.
In the 2014 case of Franza v. Royal Caribbean Cruises, Ltd., a passenger fell and hit his head while his ship was at port in Bermuda.3 He died several days later, allegedly because of negligence and delay by the ship’s medical staff. The lower courts barred the lawsuit, based on Barbetta, but on appeal, the 11th Circuit Court reversed. It rejected the historical justifications for immunizing shipowners from liability, concluding that past reasons were no longer applicable to modern-day cruise ships.
The court wrote: “Here, the roots of the Barbetta rule snake back to a wholly different world. Instead of 19th-century steamships, we now confront state-of-the-art cruise ships that house thousands of people and operate as floating cities complete with well-stocked modern infirmaries and urgent-care centers. In place of independent doctors and nurses, we must now acknowledge that medical professionals routinely work for corporate masters. And whereas ships historically went ‘off the grid’ when they set sail, modern technology enables distant ships to communicate instantaneously with the mainland in meaningful ways.”
However, the injured person must still prove that the doctor or nurse was acting as a ship employee rather than an independent contractor. Some of the factors to be considered include whether the cruise line advertised its medical center or medical staff to passengers, whether it retained the right to hire and fire medical staff, and methods of payment.
This 2014 11th Circuit Court ruling has particular impact on Florida, because the state’s federal court system falls within its jurisdiction, and many cruise lines – such as Carnival, Celebrity, Disney, Norwegian, Royal Caribbean, and Silversea Cruises – are headquartered in Florida. Because most ocean liners hire medical professionals who are foreign nationals, seeking legal remedy against the individuals can be difficult.
As a result, suing the cruise line directly can serve as the simplest way to obtain compensation. Some major cruise lines have already seen an increase in personal injury lawsuits. According to Bloomberg Law, there were 164 such federal injury suits in 2016, 188 in 2017, and 83 cases in just the first 3 months of 2018.
The popular press recently highlighted the latest example of medical malpractice at sea. A cruise worker was awarded $3.34 million after a young, inexperienced doctor prescribed a large dose of intravenous promethazine for nausea. Instead of using 6.25 mg, the usual dose, he prescribed 25 mg, which was inadvertently injected into the ulnar artery. The caustic drug, known to injure vascular walls, caused severe damage with extravasation, and tissue swelling, ending in compartment syndrome.
Furthermore, he had to wait 24 hours before arriving in port for treatment. By then, his arm was gangrenous and had to be amputated. The defense had argued unsuccessfully that the plaintiff had a venous anomaly to account for the injury.4
These changes in the law augur well for the cruising public. The Franza decision puts cruise line owners on notice that they no longer enjoy blanket immunity, and will be held responsible for the negligence of their health care providers. Hopefully, this will ensure a more uniform and adequate standard of care.
The American College of Emergency Physicians has published specific guidelines regarding medical standards aboard cruise ships. In addition to having established medical policies and procedures, and a dedicated medical emergency telephone number, they must have at least one doctor available 24/7 to provide emergency medical care and maintain certain equipment on board, such as pulse oximeters, cardiac monitors, defibrillators, an EKG device, as well as a laboratory.
Norwegian Cruise Line has taken a step further: It recently installed the capability to consult in real time with the Cleveland Clinic for diagnostic and treatment advice.