Cruise lines liable for MDs – Court rules against Carnival

Lipcon, Marguiles, Alsina & Winkleman, P.A

August 28, 2003
BY DALE K. DuPONT
Miami Herald

Cruise lines are responsible for the doctors they hire, a state appellate panel said Wednesday, extending companies’ liability in medical-malpractice cases.

The ruling, involving a teenager with a ruptured appendix, is the Third District Court of Appeal’s second in a week favoring plaintiffs in such suits against cruise lines. The responsibility issue is critical in an industry that operates under a tangle of international and national laws. “The cruise line’s duty to exercise reasonable care… extends to the actions of the ship’s doctor placed on board by the cruise line,” the opinion, written by Senior Judge Joseph Nesbitt, said. Regardless of contractual status, “the ship’s doctor is an agent of the cruise line.”

Miami attorney Charles Lipcon, who represents a family that’s suing Carnival, termed the ruling “one of the most significant I’ve seen in my entire practice, in terms of impact on passengers on ships,” while Jeffrey Maltzman, attorney for the world’s biggest cruise company, said, “I strongly but respectfully disagree with the court’s opinion, and Carnival intends to appeal.”

Carnival can ask for a hearing before the entire appeals court in Miami or go to the Florida Supreme Court. The issue also could end up before the U.S. Supreme Court.

“Before this decision, the law said cruise lines were not liable for bad medical care of onboard doctors,” said Lipcon, a maritime personal-injury specialist.

Passengers would have to sue a doctor in his own country unless the ship called on the United States.

“This means we don’t have to worry about finding the doctor,” Lipcon said. “Why should the cruise lines not be responsible for doctors on the ships?”

The case stems from a 1997 incident involving a Michigan family aboard the Ecstasy. Their 14-year-old daughter saw the ship’s doctor several times over a few days because of abdominal and lower-back pain and diarrhea. The doctor, identified as Mauro Neri, told the family that she had the flu, gave her antibiotics and assured them she did not have appendicitis, the ruling notes. The family cut the cruise short and went home, where the girl was diagnosed with a ruptured appendix, which was removed.

The appeals court reversed a ruling by Miami-Dade Circuit Judge Jon Gordon, who had agreed with Carnival’s argument that the line wasn’t liable. Carnival had cited a 1988 case that determined that cruise lines were not responsible for doctors’ negligence. The lines, Gordon had ruled, don’t have the expertise to control a doctor in the practice of medicine.

Plus, Carnival, in its tickets and brochure, had advised the family that the doctor was not an agent of the line, according to arguments filed by Carnival’s lawyers.

But, the appeals court said, cruise passengers who need medical care have no choice “but to seek treatment from the ship’s doctor.” While no law requires companies to have doctors on board, “the practical realities of the competitive cruise industry and the reasonably anticipated risks of taking a small city of people to sea for days at a time all but dictate a doctor’s presence.”

The same court said last week that a doctor may not use a ship’s foreign registry to shield himself from malpractice claims in the death of a passenger’s newborn. Ships, the court found, are subject to the laws of the ports they visit. An attorney for the doctor was served with the lawsuit aboard Royal Caribbean’s Explorer of the Seas while the ship was docked in Miami.

Earlier this year, the court allowed a case involving the death of a 13-year-old boy to proceed against Norwegian Cruise Line.