A.C., Plaintiff, v. NCL (Bahamas) Ltd.

Lipcon, Margulies, Alsina & Winkleman, P.A - Maritime Lawyer

September 10, 2015

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

IN ADMIRALTY

 

CASE NO.                                                     

 

A.C., Individually and as

Personal Representative for the Estate of

W.C., Deceased,

Plaintiff,

v.

NCL (BAHAMAS) LTD., DR. CHERRYLL LeBLANC,

  1. MICHIEL ADRIAAN ETSEBETH, DR. ANABELLE ABAD,

JOHANNES DE WINNAAR, LEILANI DANAN,

DOCTOR DOE(S), and NURSE DOE(S),

Defendants.

                                                                        /

 

COMPLAINT

Plaintiff hereby sues Defendants and alleges as follows:

PRELIMINARY ALLEGATIONS

  1. The Plaintiff, A.C., is a citizen of Florida. The Plaintiff, A.C., brings this action individually, on behalf of the Estate of W.C., and on behalf of all survivors who are entitled to recover, including, but not limited to, W.C.’S wife, A.C., and his son, P.J.C..
  2. Defendant, NCL (BAHAMAS) LTD. (hereinafter “NCL”), is a foreign entity with its principal place of business in Miami, Florida.
  3. Defendant, DR. CHERRYLL LeBLANC, was one of the ship’s doctors aboard the Norwegian Getaway vessel who saw, examined, treated and/or was consulted concerning the medical condition of W.C. while aboard the Norwegian Getaway. Upon information and belief, DR. CHERRYLL LeBLANC is a citizen of Florida.
  4. Defendant, DR. MICHIEL ADRIAAN ETSEBETH, was one of the ship’s doctors aboard the Norwegian Getaway vessel who saw, examined, treated and/or was consulted concerning the medical condition of W.C. while aboard the Norwegian Getaway. Upon information and belief, DR. MICHIEL ADRIAAN ETSEBETH is a citizen of South Africa.
  5. Defendant, DR. ANABELLE ABAD, was one of the ship’s doctors aboard the Norwegian Getaway vessel who saw, examined, treated and/or was consulted concerning the medical condition of W.C. while aboard the Norwegian Getaway. Upon information and belief, DR. ANABELLE ABAD is a citizen of the Philippines.
  6. Defendant, JOHANNES DE WINNAAR, was one of the ship’s nurses aboard the Norwegian Getaway vessel who saw, examined, treated and/or was consulted concerning the medical condition of W.C. while aboard the Norwegian Getaway. Upon information and belief, JOHANNES DE WINNAAR is a citizen of South Africa.
  7. Defendant, LEILANI DANAN, was one of the ship’s nurses aboard the Norwegian Getaway vessel who saw, examined, treated and/or was consulted concerning the medical condition of W.C. while aboard the Norwegian Getaway. Upon information and belief, LEILANI DANAN is a citizen of the Philippines.
  8. Defendant(s), DOCTOR DOE(S), is(are) the ship’s doctor(s) aboard the Norwegian Getaway vessel who saw, examined, treated and/or was(were) consulted concerning the medical condition of W.C. while aboard the Norwegian Getaway. The legal name(s) and identity(ies) of DOCTOR DOE(S) are presently unknown to the Plaintiff but will be revealed through discovery.  Upon learning the legal name(s) and identity(ies) of DOCTOR DOE(S), the Plaintiff will amend the Complaint to substitute DOCTOR DOE(S) with the legal name(s) of the individual ship’s doctor(s) who saw, examined, treated and/or was(were) consulted concerning the medical condition of W.C. while aboard the Norwegian Getaway.  Throughout this Complaint, DOCTOR DOE(S) is used both singularly and plural because it is presently unknown the number of ship’s doctors who saw, examined, treated and/or were consulted concerning the medical condition of W.C. while aboard the Norwegian Getaway.
  9. Defendant(s), NURSE DOE(S), is(are) the ship’s nurses aboard the Norwegian Getaway vessel who saw, examined, treated and/or was(were) consulted concerning the medical condition of W.C. while aboard the Norwegian Getaway. The legal name(s) and identity(ies) of NURSE DOE(S) are presently unknown to the Plaintiff but will be revealed through discovery.  Upon learning the legal name(s) and identity(ies) of NURSE DOE(S), the Plaintiff will amend the Complaint to substitute NURSE DOE(S) with the legal name(s) of the individual ship’s nurse(s) who saw, examined, treated and/or were consulted concerning the medical condition of W.C. while aboard the Norwegian Getaway.  Throughout this Complaint, NURSE DOE(S) is used both singularly and plural because it is presently unknown the number of ship’s nurses who saw, examined, treated and/or were consulted concerning the medical condition of W.C. while aboard the Norwegian Getaway.
  10. This matter is being filed pursuant to NCL’s federal forum selection clause within its passenger ticket contract and, because there is no diversity among the parties, it is brought under the admiralty and maritime jurisdiction of the Court. This is an admiralty or maritime claim within the meaning of Rule 9(h).
  1. At all times material hereto, NCL, personally or through an agent:Operated, conducted, engaged in or carried on a business venture in this state and/or county or had an office or agency in this state and/or county;
    • Was engaged in substantial activity within this state;
    • Operated vessels in the waters of this State;
    • Committed one or more of the acts stated in Florida Statutes §§ 48.081, 48.181 and/or 48.193;
    • The acts of NCL set out in this Complaint occurred in whole or in part in this county and/or state.
    • The Plaintiff’s passenger ticket contract for the subject cruise requires that suit be brought in this Court against all possible defendants, including the named Defendants herein.
    • NCL, as a common carrier, was engaged in the business of providing to the public and to the Plaintiff in particular, for compensation, vacation cruises aboard the Norwegian Getaway As part of providing vacation cruises, NCL advertised that a ship’s medical facility with competent physician(s) would be available in the event passengers needed medical care.
    • At all times material hereto, NCL charged money to passengers for the medical services it provided. As such, NCL is in the business of providing medical services to passengers for profit and/or NCL is in the business of operating a floating hospital for its own profit.  Herein, NCL charged the Plaintiff a fee for the medical treatment performed by the medical staff aboard its vessel and for the medicine provided to W.C.  All of the charges for the medical treatment and medicine were directly charged to Plaintiff’s onboard account with NCL.
  2. At all times material hereto, DR. CHERRYLL LeBLANC, DR. MICHIEL ADRIAAN ETSEBETH, DR. ANABELLE ABAD, and DOCTOR DOE(S) (hereinafter collectively referred to as the “Ship’s Doctors”) and JOHANNES DE WINNAAR, LEILANI DANAN, and NURSE DOE(S) (hereinafter collectively referred to as the “Ship’s Nurses”) (at times the Ship’s Doctors and the Ship’s Nurses are collectively referred to as the “Medical Defendants”) are subject to the jurisdiction of the Courts of this State under Florida’s long-arm statute based on the following activities and contacts, assessed over a period of time and considered collectively:
    1. The Medical Defendants agreed to insure an entity located in Florida (NCL) for foreseeable risks. Specifically, upon information and belief, the Medical Defendants entered into agreements with Florida-based NCL to indemnify and insure NCL.  Section 48.193 provides that “any person… contracting to insure any person, property, or risk located within this state” is subject to the jurisdiction of the Courts of this State. Fla. Stat. § 48.193(1)(a)(4).  As such, because the Medical Defendants contractually agreed to indemnify NCL (an entity located in Florida) for any harm resulting from their services (including medical malpractice), the Medical Defendants agreed to insure a person and/or risk in Florida within the meaning of Florida Statute § 48.193(1)(a)(4).
    2. The Medical Defendants appointed NCL as their exclusive agent in Florida, giving NCL “absolute and complete control” of all claims brought against them in Florida. In consideration of working as a ship’s doctor or nurse for Florida-based NCL, each Medical Defendant signed indemnity agreements with NCL. In each indemnity agreement, the Medical Defendants appointed NCL and NCL’s insurer as their exclusive agent, giving NCL “absolute and complete control of the defenses of all proceedings against [the Medical Defendants].”  By virtue of such appointments and giving NCL a quasi-power of attorney, the Medical Defendants purposefully directed their activities to this forum.  In this case, under the aforementioned agreement, Florida-based NCL controls and pays for the Medical Defendants’ attorney(s) in Florida.  Accordingly, the Medical Defendants appointed an agent in Florida (other than their attorney(s)) to assume complete control of their defenses in this case.
    3. At all times material hereto, the Medical Defendants worked as ship’s doctors or ship’s nurses aboard NCL’s vessels (and/or other cruise lines’ vessels), while the vessels were in Florida ports. During each of these times, while the vessel was in a Florida port or in Florida territorial waters, the Medical Defendants were expected to and/or did in fact provide medical care to passengers in Florida.  As such, harm resulting from the Medical Defendants’ services performed in Florida was a foreseeable risk in Florida, for which the Medical Defendants insured NCL in Florida.  As stated, this grants the Court personal jurisdiction over the Medical Defendants under Florida Statute § 48.193(1)(a)(4).
    4. Alternatively, the Medical Defendants’ continuing agreements to insure Florida-based NCL should be considered collectively with all of the Medical Defendants’ other contacts (as described herein) to establish jurisdiction under Florida’s general jurisdiction statute, § 48.193(2).
    5. At all times material hereto, upon information and belief, the Medical Defendants maintained active bank accounts in Florida and/or the United States and earned taxable income from these accounts.
    6. At all times material hereto, the Medical Defendants provided medical care to passengers in Florida ports and/or in Florida territorial waters, while working and being compensated as cruise ship doctor(s) or nurse(s).
    7. At all times material hereto, the Medical Defendants received medical training and continuing medical instruction in Florida.
    8. At all times material hereto, the Medical Defendants purposefully reached out to NCL (and/or other cruise lines) in Florida and entered into long-term business arrangements with these Florida entities to provide medical services to cruise passengers for profit.
    9. All payments of the Medical Defendants’ earnings from Florida-based NCL (and/or other Florida-based cruise lines) were processed by the cruise line(s) in Florida.
    10. At all times material hereto, the Medical Defendants (acting in consultation and in concert with NCL officials/employees located in Florida) failed to evacuate the Plaintiff to a properly equipped medical facility. Accordingly, the facts giving rise to the causes of action in this incident took place, in part, in Florida, thereby also giving this Court specific jurisdiction over the Medical Defendants.
  3. Defendants are subject to the jurisdiction of the Courts of this State.
  4. The causes of action asserted in this Complaint arise under the General Maritime Law of the United States.

FACTS COMMON TO ALL COUNTS

  1. At all times material hereto, NCL owned, operated, managed, maintained and/or controlled the Norwegian Getaway vessel, including the medical department.
  2. At all times material hereto, NCL owned, operated, managed, maintained and/or controlled the medical equipment in the ship’s medical facility aboard the Norwegian Getaway
  3. At all times material hereto, NCL maintained, controlled, ordered and/or supplied the medicine for the ship’s medical facility aboard the Norwegian Getaway
  4. At all times material hereto, NCL had the ability to monitor and control each and every step taken by any person (including the Medical Defendants) working in the medical department via telephone, videoconference, Skype or otherwise. This technology is generally referred to as “Face-to-Face Telemedicine”; such modern means of communication make the location of the cruise ship effectively irrelevant and allows NCL to directly control the medical care on the ship.
  5. At all times material hereto, NCL had control and/or the right to control any and all persons working in NCL’s medical department, including the Medical Defendants.
  6. At all times material hereto, the Medical Defendants were in the regular, full-time employment of the ship, as salaried member(s) of the crew, subject to the ship’s discipline and the master’s orders, and also under the control of NCL’s shoreside medical department located in Miami, Florida, through modern means of communication such as “Face-to-Face Telemedicine.”
  7. At all times material hereto, NCL had the right to fire the Medical Defendants.
  8. At all times material hereto, NCL was responsible and liable for the actions of the Medical Defendants with respect to the treatment, or lack of treatment, of the Plaintiff based on a theory of respondeat superior and/or apparent agency.
  9. At all times material hereto, the Medical Defendants were employees and/or actual agents and/or apparent agents of NCL, and at all times material hereto, acted within the course and scope of their employment and/or agency agreement and/or relationship.
  10. At all times material hereto, the Medical Defendants were represented to the Plaintiff and the ship’s passengers as agents and/or employees of NCL in that:
    • They worked in the ship’s medical facility aboard the vessel, which was owned and/or operated by NCL; and/or
    • They wore a ship’s uniform provided by NCL; and/or
    • They represented themselves as the “ship’s medical crew” to the Plaintiff; and/or
    • The Ship’s Doctors were called ship’s officer(s) by NCL, the ship’s officers and the crew; and/or
    • They ate with the ship’s crew; and/or
    • They were under the commands of the ship’s officers and followed all of the master’s rules and regulations; and/or
    • Their charges for medical treatment and medicine were charged directly to passengers’ onboard account with NCL; and/or
    • They communicated directly with NCL (to the captain and to unknown persons in NCL’s shoreside office) while providing treatment to the Plaintiff; and/or
    • The literature provided by NCL and its representatives showed the doctor(s) and/or nurse(s) as crewmembers and employees of NCL; and/or
    • There were NCL insignias in various places inside the ship’s medical facility where the Medical Defendants worked; and/or
    • They were employed full-time by NCL; and/or
    • They were paid a salary by NCL; and/or
    • They spoke to the Plaintiff as though they had authority to do so by NCL.
  11. At no time did NCL represent in a meaningful way to the Plaintiff in particular, or the ship’s passengers in general, that the Ship’s Doctors and/or the Ship’s Nurses were not agents or employees of NCL, but instead, that they were independent contractors.
  12. The Plaintiff reasonably relied on the representation of NCL that the ship’s staff/crew included medical doctor(s) and nurse(s) employed by NCL and that the vessel had a ship’s medical facility. This reliance was detrimental because it resulted in the Plaintiff receiving improper medical treatment.  Had the Plaintiff not detrimentally relied on the negligent medical treatment given by the NCL medical staff, W.C. would not have passed away.
  13. At all times material hereto, NCL knew of the Medical Defendants’ agency representation and allowed the Medical Defendants to represent themselves as such.
  14. The Plaintiff was a paying passenger aboard the Norwegian Getaway vessel for the cruise that commenced on or about November 15, 2014. The cruise started and ended in Miami, Florida.
  15. On or about November 17, 2014, the decedent, W.C., presented to the ship’s medical facility with complaints including, but not limited to, back pain. The Medical Defendant(s) gave him pain medication and a muscle relaxer, but no x-rays were taken.
  16. The following day (on or about November 18, 2014), W.C. was still suffering from back pain. The Plaintiff called the ship’s medical facility, and the Medical Defendant(s) directed W.C. to take the medication more often.
  17. The next day (on or about November 19, 2014), W.C. was taken to the ship’s medical facility with complaints including, but not limited to, fever, sore throat, dizziness, nausea and uncontrollable shaking. Upon taking x-rays, the Medical Defendant(s) diagnosed W.C. with pneumonia.
  18. Despite repeated requests, NCL and/or the Medical Defendant(s) refused to evacuate W.C. from the vessel. Instead, NCL and/or the Medical Defendant(s) told him that he had to stay aboard the vessel until the next port of call, which they were scheduled to arrive at two days later (i.e., on November 21, 2014).  Therefore, W.C. remained under the care of the Medical Defendants.
  19. At all times material hereto, W.C.’S medical condition was mismanaged by the Medical Defendants and/or the Medical Defendants failed to provide adequate medical treatment to W.C. so that his medical condition significantly deteriorated after November 19, 2014.
  20. As a result of the mismanaged and/or inadequate medical treatment of W.C.’S medical condition, W.C. died in Nassau, Bahamas on November 22, 2014.

COUNT I – GENERAL NEGLIGENCE AGAINST NCL

The Plaintiff realleges, adopts and incorporates by reference the allegations in paragraphs one (1) through thirty-four (34) as though alleged originally herein.

  1. It was the duty of NCL to provide the Plaintiff with reasonable care under the circumstances.
  2. At all times material hereto, NCL and/or its agents, apparent agents, servants, and/or employees breached its duty to provide the Plaintiff with reasonable care under the circumstances through the following acts and/or omissions:
    • Failing to disclose to passengers that the ship’s doctors and/or nurses were not properly qualified and/or did not have the proper licenses in the jurisdiction of the flag of the ship on which they were hired to provide medical care; and/or
    • Negligent reliance on the medical opinions and/or advice and/or instructions of ship’s doctors who were: (1) not properly qualified; and/or (2) failed to have the proper licenses in the jurisdiction of the flag of the ship on which they were hired to provide medical care; and/or
    • Failing to use reasonable care to provide and maintain an adequate ship’s medical facility, fit with proper and adequate crew and equipment; and/or
    • Failing to use reasonable care to provide and maintain an adequate ship’s medical facility, fit with proper and adequate medications; and/or
    • Failing to provide adequate training, instruction and supervision to crewmembers, particularly the medical staff; and/or
    • Failing to have an adequate number of medical employees to handle medical emergencies. Specifically, it is unrealistic to have a medical team consisting of two or three doctors and/or two or three nurses to perform all the services required on a ship carrying thousands of passengers and crew; and/or
    • Failing to initiate and/or use “Face-to-Face Telemedicine” and/or other similar tele-medicine and/or video-medicine sources; and/or
    • Failing to furnish such aid and assistance as ordinarily prudent persons would render under similar circumstances; and/or
    • Failing to adequately evacuate W.C. from the Norwegian Getaway in a timely manner; and/or
    • Failing to adequately assist W.C. to obtain prompt, proper and adequate shoreside medical care; and/or
    • Failing to assist W.C. in emergent travel to the United States for medical care; and/or
    • Failing to promulgate and/or enforce adequate policies and procedures to ensure that W.C. received prompt, proper and adequate medical treatment; and/or
    • Failing to promulgate and/or enforce adequate medical procedures aboard the Norwegian Getaway; and/or
    • Failing to comply with the Cruise Industry Passenger Bill of Rights.
  3. All or some of the above acts and/or omissions by NCL and/or its agents, servants, and/or employees, caused and/or contributed to W.C.’S death and the Plaintiff’s damages.
  4. At all times material hereto, NCL knew of the forgoing conditions causing the Plaintiff’s incident and did not correct them, or the conditions existed for a sufficient length of time so that NCL, in the exercise of reasonable care under the circumstances, should have learned of them and corrected them.
  5. As a result of NCL’s negligence, the following damages were incurred:
    • C. was injured about his body and extremities, including severe physical pain and suffering, mental and emotional anguish, loss of enjoyment of life, disability, impairment, inconvenience in the normal pursuits and pleasures of life, feelings of economic insecurity, disfigurement, aggravation of any previously existing conditions therefrom and resulting death. W.C. incurred medical expenses in the care and treatment of the injuries, suffered physical handicap, and his working ability and earning capacity in the future was impaired. W.C. lost the money paid for the cruise, incurred extra expenses such as transportation and had the enjoyment of the cruise ruined or damaged.
    • The Estate of W.C. incurred funeral and medical expenses. The estate also lost the benefit of the net accumulations that W.C. would have obtained had he lived to his normal life expectancy.
    • The survivors suffered lost support and services, funeral expenses, decedent’s companionship and protection, mental pain and suffering, loss of nurture and guidance, and all other damages as allowable by law.

WHEREFORE, the Plaintiff demands judgment for all damages recoverable under general maritime law and/or any other applicable wrongful death and/or survival act.

COUNT II – NEGLIGENCE AGAINST NCL FOR NEGLIGENT HIRING

AND/OR NEGLIGENT RETENTION OF THE MEDICAL DEFENDANTS

 

The Plaintiff realleges, adopts and incorporates by reference the allegations in paragraphs one (1) through thirty-four (34) as though alleged originally herein.

  1. At all times material hereto, NCL had a duty to exercise reasonable care for the safety of its passengers, including W.C.
  2. At all times material hereto, NCL had a duty to hire properly qualified and competent ship’s doctors and ship’s nurses.
  3. At all times material hereto, the Medical Defendants were agents, servants and/or employees of NCL.
  4. At all times material hereto, NCL and/or its agents, servants, and/or employees breached its duty/duties to W.C., as follows:
    • Hiring the Medical Defendants, who were not competent and/or duly qualified nor licensed to practice medicine in the jurisdiction of the ship, as ship’s doctors or ship’s nurses; and/or
    • Retaining the Medical Defendants, who were not competent and/or duly qualified nor licensed to practice medicine in the jurisdiction of the ship, as ship’s doctors or ship’s nurses.
  5. All or some of the above acts and/or omissions by NCL and/or its agents, servants, and/or employees, caused and/or contributed to W.C.’S death and the Plaintiff’s damages.
  6. At all times material hereto, NCL knew of the forgoing conditions causing the Plaintiff’s incident and did not correct them, or the conditions existed for a sufficient length of time so that NCL, in the exercise of reasonable care under the circumstances, should have learned of them and corrected them.
  7. As a result of NCL’s negligence, the following damages were incurred:
    • C. was injured about his body and extremities, including severe physical pain and suffering, mental and emotional anguish, loss of enjoyment of life, disability, impairment, inconvenience in the normal pursuits and pleasures of life, feelings of economic insecurity, disfigurement, aggravation of any previously existing conditions therefrom and resulting death. W.C. incurred medical expenses in the care and treatment of the injuries, suffered physical handicap, and his working ability and earning capacity in the future was impaired. W.C. lost the money paid for the cruise, incurred extra expenses such as transportation and had the enjoyment of the cruise ruined or damaged.
    • The Estate of W.C. incurred funeral and medical expenses. The estate also lost the benefit of the net accumulations that W.C. would have obtained had he lived to his normal life expectancy.
    • The survivors suffered lost support and services, funeral expenses, decedent’s companionship and protection, mental pain and suffering, loss of nurture and guidance, and all other damages as allowable by law.

WHEREFORE, the Plaintiff demands judgment for all damages recoverable under general maritime law and/or any other applicable wrongful death and/or survival act.

COUNT III – NEGLIGENCE AGAINST NCL FOR THE ACTS OF

THE MEDICAL DEFENDANTS BASED ON A THEORY OF

VICARIOUS LIABILITY UNDER RESPONDEAT SUPERIOR

 

The Plaintiff realleges, adopts and incorporates by reference the allegations in paragraphs one (1) through thirty-four (34) as though alleged originally herein.

  1. During the cruise that commenced on or about November 15, 2014, the Medical Defendants were the ship’s doctors and nurses aboard the Norwegian Getaway.
  2. At all times material hereto, the Medical Defendants were agents, servants and/or employees of NCL.
  3. At all times material hereto, the Medical Defendants were subject to the control and/or right to control by NCL.
  4. At all times material hereto, the Medical Defendants were acting within the scope of their employment and/or agency.
  5. At all times material hereto, NCL acknowledged that the Medical Defendants would act on NCL’s behalf, and all of the Medical Defendants accepted the undertaking.
  6. At all times material hereto, NCL is vicariously liable for the acts of the Medical Defendants based on the following:
    • They worked in the ship’s medical facility aboard the vessel, which was owned and/or operated by NCL; and/or
    • They wore a ship’s uniform provided by NCL; and/or
    • They represented themselves as the “ship’s medical crew” to the Plaintiff; and/or
    • The Ship’s Doctors were called ship’s officer(s) by NCL, the ship’s officers and the crew; and/or
    • They ate with the ship’s crew; and/or
    • They were under the commands of the ship’s officers and followed all of the master’s rules and regulations; and/or
    • Their charges for medical treatment and medicine were charged directly to passengers’ onboard account with NCL; and/or
    • They communicated directly with NCL (to the captain and to unknown persons in NCL’s shoreside office) while providing treatment to the Plaintiff; and/or
    • The literature provided by NCL and its representatives showed the doctor(s) and/or nurse(s) as crewmembers and employees of NCL; and/or
    • There were NCL insignias in various places inside the ship’s medical facility where the Medical Defendants worked; and/or
    • They were employed full-time by NCL; and/or
    • They were paid a salary by NCL; and/or
    • They spoke to the Plaintiff as though they had authority to do so by NCL.
  7. At all times material hereto, NCL had a duty to provide the Plaintiff with reasonable care under the circumstances.
  8. At all times material hereto, the Medical Defendants owed a duty to provide the Plaintiff with reasonable care under the circumstances.
  9. At all times material hereto, NCL breached its duty to provide reasonable care under the circumstances through the acts and/or omissions of its agents, servants and/or employees, including the Medical Defendants.
  10. At all times material hereto, the Medical Defendants breached their duty to provide reasonable care under the circumstances through the following acts and/or omissions:
    • Failing to promptly provide W.C. with proper and/or adequate medical care and attention; and/or
    • Failing to timely and/or properly diagnose W.C.’S medical condition; and/or
    • Failing to promptly order appropriate tests to assess W.C.’S medical condition; and/or
    • Failing to adequately monitor W.C.’S medical condition; and/or
    • Failing to adequately treat W.C. with the proper medications; and/or
    • Failing to adequately treat W.C.’S medical condition; and/or
    • Failing to stabilize W.C.’S temperature; and/or
    • Failing to stabilize W.C.’S medical condition; and/or
    • Allowing W.C.’S medical condition to significantly deteriorate; and/or
    • Failing to adequately advise the Plaintiff and/or W.C. regarding his medical condition; and/or
    • Failing to recommend appropriate medical care; and/or
    • Failing to utilize available medical testing and/or available medical equipment with adequate frequency during the medical care and treatment of W.C.; and/or
    • Failing to utilize telephone and/or video consultations with specialists during the medical care and treatment of W.C.; and/or
    • Failing to promptly obtain consultations with appropriate specialists; and/or
    • Failing to promptly have W.C. seen by a shoreside physician; and/or
    • Failing to adequately evacuate W.C. from the Norwegian Getaway in a timely manner; and/or
    • Knowingly rendering treatment to W.C. while lacking the proper licenses to practice medicine in the jurisdiction and/or location of the ship; and/or
    • Failing to have proper licenses to practice medicine in the jurisdiction and/or location of the ship; and/or
    • Breaching the prevailing professional standard of care for health care providers (i.e., the level of care, skill and treatment that, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by a reasonably prudent similar health care provider).
  11. All or some of the above acts and/or omissions by NCL and/or its agents, servants, and/or employees, including the Medical Defendants, caused and/or contributed to W.C.’S death and the Plaintiff’s damages.
  12. As a result of the Medical Defendants’ negligence, for which NCL is vicariously liable, the following damages were incurred:
    • C. was injured about his body and extremities, including severe physical pain and suffering, mental and emotional anguish, loss of enjoyment of life, disability, impairment, inconvenience in the normal pursuits and pleasures of life, feelings of economic insecurity, disfigurement, aggravation of any previously existing conditions therefrom and resulting death. W.C. incurred medical expenses in the care and treatment of the injuries, suffered physical handicap, and his working ability and earning capacity in the future was impaired. W.C. lost the money paid for the cruise, incurred extra expenses such as transportation and had the enjoyment of the cruise ruined or damaged.
    • The Estate of W.C. incurred funeral and medical expenses. The estate also lost the benefit of the net accumulations that W.C. would have obtained had he lived to his normal life expectancy.
    • The survivors suffered lost support and services, funeral expenses, decedent’s companionship and protection, mental pain and suffering, loss of nurture and guidance, and all other damages as allowable by law.

WHEREFORE, the Plaintiff demands judgment for all damages recoverable under general maritime law and/or any other applicable wrongful death and/or survival act.

COUNT IV – NEGLIGENCE AGAINST NCL FOR THE ACTS OF

THE MEDICAL DEFENDANTS BASED ON A THEORY OF

VICARIOUS LIABILITY UNDER APPARENT AGENCY

 

The Plaintiff realleges, adopts and incorporates by reference the allegations in paragraphs one (1) through thirty-four (34) as though alleged originally herein.

  1. During the cruise that commenced on or about November 15, 2014, the Medical Defendants were the ship’s doctors and nurses aboard the Norwegian Getaway.
  2. At all times material hereto, the Medical Defendants were represented to the Plaintiff and the ship’s passengers as agents and/or employees of NCL in that:
    • They worked in the ship’s medical facility aboard the vessel, which was owned and/or operated by NCL; and/or
    • They wore a ship’s uniform provided by NCL; and/or
    • They represented themselves as the “ship’s medical crew” to the Plaintiff; and/or
    • The Ship’s Doctors were called ship’s officer(s) by NCL, the ship’s officers and the crew; and/or
    • They ate with the ship’s crew; and/or
    • They were under the commands of the ship’s officers and followed all of the master’s rules and regulations; and/or
    • Their charges for medical treatment and medicine were charged directly to passengers’ onboard account with NCL; and/or
    • They communicated directly with NCL (to the captain and to unknown persons in NCL’s shoreside office) while providing treatment to the Plaintiff; and/or
    • The literature provided by NCL and its representatives showed the doctor(s) and/or nurse(s) as crewmembers and employees of NCL; and/or
    • There were NCL insignias in various places inside the ship’s medical facility where the Medical Defendants worked; and/or
    • They were employed full-time by NCL; and/or
    • They were paid a salary by NCL; and/or
    • They spoke to the Plaintiff as though they had authority to do so by NCL.
  3. At all times material hereto, NCL knew of the Medical Defendants’ agency representation and allowed the Medical Defendants to represent themselves as such.
  4. At no time did NCL represent in a meaningful way to the Plaintiff in particular, or the ship’s passengers in general, that the Ship’s Doctors and/or the Ship’s Nurses were not agents or employees of NCL, but instead, that they were independent contractors.
  5. NCL is estopped to deny that the Medical Defendants were its apparent agents and/or apparent employees and/or apparent servants.
  6. The Plaintiff reasonably relied on the representation of NCL that the ship’s staff/crew included medical doctor(s) and nurse(s) employed by NCL and that the vessel had a ship’s medical facility.
  7. It was reasonable for the Plaintiff to believe that the Medical Defendants were NCL’s agents and/or employees because they wore ship’s uniforms and admitted W.C. to the ship’s medical facility. In addition, at all times material hereto, the Medical Defendants spoke and acted as though they were authorized to do so by NCL.  Further, pre-cruise literature in the public domain stated that there was a medical facility onboard the vessel with doctors and nurses, which the Plaintiff reasonably believed were NCL’s agents and/or employees.
  8. The Plaintiff’s reliance was detrimental because it resulted in W.C. receiving improper medical treatment. Had the Plaintiff not detrimentally relied on the negligent medical treatment given by the NCL medical staff, W.C. would not have passed away.
  9. At all times material hereto, NCL had a duty to provide the Plaintiff with reasonable care under the circumstances, including through the acts of its apparent agents.
  10. At all times material hereto, NCL breached its duty to provide reasonable care under the circumstances through the following acts and/or omissions of its apparent agents, the Medical Defendants:
    • Failing to promptly provide W.C. with proper and/or adequate medical care and attention; and/or
    • Failing to timely and/or properly diagnose W.C.’S medical condition; and/or
    • Failing to promptly order appropriate tests to assess W.C.’S medical condition; and/or
    • Failing to adequately monitor W.C.’S medical condition; and/or
    • Failing to adequately treat W.C. with the proper medications; and/or
    • Failing to adequately treat W.C.’S medical condition; and/or
    • Failing to stabilize W.C.’S temperature; and/or
    • Failing to stabilize W.C.’S medical condition; and/or
    • Allowing W.C.’S medical condition to significantly deteriorate; and/or
    • Failing to adequately advise the Plaintiff and/or W.C. regarding his medical condition; and/or
    • Failing to recommend appropriate medical care; and/or
    • Failing to utilize available medical testing and/or available medical equipment with adequate frequency during the medical care and treatment of W.C.; and/or
    • Failing to utilize telephone and/or video consultations with specialists during the medical care and treatment of W.C.; and/or
    • Failing to promptly obtain consultations with appropriate specialists; and/or
    • Failing to promptly have W.C. seen by a shoreside physician; and/or
    • Failing to adequately evacuate W.C. from the Norwegian Getaway in a timely manner; and/or
    • Knowingly rendering treatment to W.C. while lacking the proper licenses to practice medicine in the jurisdiction and/or location of the ship; and/or
    • Failing to have proper licenses to practice medicine in the jurisdiction and/or location of the ship; and/or
    • Breaching the prevailing professional standard of care for health care providers (i.e., the level of care, skill and treatment that, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by a reasonably prudent similar health care provider).
  11. All or some of the above acts and/or omissions by NCL and/or its apparent agents, the Medical Defendants, caused and/or contributed to W.C.’S death and the Plaintiff’s damages.
  12. As a result of the Medical Defendants’ negligence, for which NCL is vicariously liable, the following damages were incurred:
    • C. was injured about his body and extremities, including severe physical pain and suffering, mental and emotional anguish, loss of enjoyment of life, disability, impairment, inconvenience in the normal pursuits and pleasures of life, feelings of economic insecurity, disfigurement, aggravation of any previously existing conditions therefrom and resulting death. W.C. incurred medical expenses in the care and treatment of the injuries, suffered physical handicap, and his working ability and earning capacity in the future was impaired. W.C. lost the money paid for the cruise, incurred extra expenses such as transportation and had the enjoyment of the cruise ruined or damaged.
    • The Estate of W.C. incurred funeral and medical expenses. The estate also lost the benefit of the net accumulations that W.C. would have obtained had he lived to his normal life expectancy.
    • The survivors suffered lost support and services, funeral expenses, decedent’s companionship and protection, mental pain and suffering, loss of nurture and guidance, and all other damages as allowable by law.

WHEREFORE, the Plaintiff demands judgment for all damages recoverable under general maritime law and/or any other applicable wrongful death and/or survival act.

COUNT V – NEGLIGENCE AGAINST NCL FOR THE ACTS OF

THE SHIP’S DOCTORS BASED ON A THEORY OF

VICARIOUS LIABILITY UNDER JOINT VENTURE

 

The Plaintiff realleges, adopts and incorporates by reference the allegations in paragraphs one (1) through thirty-four (34) as though alleged originally herein.

  1. During the cruise that commenced on or about November 15, 2014, the Ship’s Doctors served as doctors aboard the Norwegian Getaway.
  2. At all times material hereto, NCL and the Ship’s Doctors engaged in a joint venture[1] to operate a ship’s medical facility for passengers aboard the Norwegian Getaway for a profit.
  3. As its part of the joint venture, NCL financed and equipped the ship’s medical facility and assisted in running it. As their part of the joint venture, the Ship’s Doctors provided labor and/or assisted in running the ship’s medical facility so as to generate charges to passengers; the charges were thereby collected by NCL, and the money was then shared by NCL and the Ship’s Doctors.
  4. At all times material hereto, NCL and the Ship’s Doctors had joint or shared control over aspects of the joint venture. The Ship’s Doctors had control over the day-to-day workings of the ship’s medical facility.  NCL also had control over the day-to-day workings of the ship’s medical facility.  In addition, NCL had control over the billings and collections for the ship’s medical facility.  Thus, NCL and the Ship’s Doctors joint or shared control over the day-to-day operations of the medical facility in that the Ship’s Doctors performed the medical aspects of the joint venture and NCL performed the operational aspects of the joint venture.
  5. At all times material hereto, NCL and the Ship’s Doctors shared a common purpose, which was to operate the ship’s medical facility for profit.
  6. At all times material hereto, NCL and the Ship’s Doctors had a joint proprietary or ownership interest in the ship’s medical facility. NCL had the interest in the money it devoted to setting up the medical facility, and the Ship’s Doctors had a proprietary interest in the time and labor expended in operating the ship’s medical facility.  Further, NCL and the Ship’s Doctors shared in the profits of the joint venture.  Upon information and belief, contractual arrangements exist between NCL and the Ship’s Doctors that expressly lay out such a profit-sharing relationship. In Florida, a duty to share losses actually and impliedly exists as a matter of law in a situation where one party supplies the labor, experience and skill, and the other the necessary capital.
  7. Therefore, NCL and the Ship’s Doctors:
    • Had a community of interest in the performance of the common purpose, i.e., the operation of a ship’s medical facility for passengers for profit;
    • Had a joint proprietary interest;
    • Had a joint control or right of control with respect to the operation of the medical facility;
    • Had a right to share in the profits of the joint venture; and,
    • Would share losses which may have been sustained.
  8. As joint venturers, NCL and the Ship’s Doctors are liable for each other’s negligence. As a result, NCL is liable for the negligent conduct of the Ship’s Doctors and damages previously described in this Complaint. Participants in a joint venture are each liable for the torts of the other or of the servants of the joint undertaking committed within the course and scope of the undertaking, without regard to which of the joint venturers actually employed the servant.
  9. At all times material hereto, NCL had a duty to provide the Plaintiff with reasonable care under the circumstances.
  10. At all times material hereto, the Ship’s Doctors owed a duty to provide the Plaintiff with reasonable care under the circumstances.
  11. At all times material hereto, NCL and/or the Ship’s Doctors, through the joint venture, breached their duty to provide reasonable care under the circumstances through the following acts and/or omissions:
    • Failing to promptly provide W.C. with proper and/or adequate medical care and attention; and/or
    • Failing to timely and/or properly diagnose W.C.’S medical condition; and/or
    • Failing to promptly order appropriate tests to assess W.C.’S medical condition; and/or
    • Failing to adequately monitor W.C.’S medical condition; and/or
    • Failing to adequately treat W.C. with the proper medications; and/or
    • Failing to adequately treat W.C.’S medical condition; and/or
    • Failing to stabilize W.C.’S temperature; and/or
    • Failing to stabilize W.C.’S medical condition; and/or
    • Allowing W.C.’S medical condition to significantly deteriorate; and/or
    • Failing to adequately advise the Plaintiff and/or W.C. regarding his medical condition; and/or
    • Failing to recommend appropriate medical care; and/or
    • Failing to utilize available medical testing and/or available medical equipment with adequate frequency during the medical care and treatment of W.C.; and/or
    • Failing to utilize telephone and/or video consultations with specialists during the medical care and treatment of W.C.; and/or
    • Failing to promptly obtain consultations with appropriate specialists; and/or
    • Failing to promptly have W.C. seen by a shoreside physician; and/or
    • Failing to adequately evacuate W.C. from the Norwegian Getaway in a timely manner; and/or
    • Knowingly rendering treatment to W.C. while lacking the proper licenses to practice medicine in the jurisdiction and/or location of the ship; and/or
    • Failing to have proper licenses to practice medicine in the jurisdiction and/or location of the ship; and/or
    • Breaching the prevailing professional standard of care for health care providers (i.e., the level of care, skill and treatment that, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by a reasonably prudent similar health care provider).
  12. All or some of the above acts and/or omissions by NCL and/or its joint venturers, the Ship’s Doctors, caused and/or contributed to W.C.’S death and the Plaintiff’s damages.
  13. As a result of the Ship’s Doctors’ negligence, for which NCL is vicariously liable, the following damages were incurred:
    • C. was injured about his body and extremities, including severe physical pain and suffering, mental and emotional anguish, loss of enjoyment of life, disability, impairment, inconvenience in the normal pursuits and pleasures of life, feelings of economic insecurity, disfigurement, aggravation of any previously existing conditions therefrom and resulting death. W.C. incurred medical expenses in the care and treatment of the injuries, suffered physical handicap, and his working ability and earning capacity in the future was impaired. W.C. lost the money paid for the cruise, incurred extra expenses such as transportation and had the enjoyment of the cruise ruined or damaged.
    • The Estate of W.C. incurred funeral and medical expenses. The estate also lost the benefit of the net accumulations that W.C. would have obtained had he lived to his normal life expectancy.
    • The survivors suffered lost support and services, funeral expenses, decedent’s companionship and protection, mental pain and suffering, loss of nurture and guidance, and all other damages as allowable by law.

WHEREFORE, the Plaintiff demands judgment for all damages recoverable under general maritime law and/or any other applicable wrongful death and/or survival act.

COUNT VI – NEGLIGENCE AGAINST THE SHIP’S DOCTORS

 

The Plaintiff realleges, adopts and incorporates by reference the allegations in paragraphs one (1) through thirty-four (34) as though alleged originally herein.

  1. At all times material hereto, the Ship’s Doctors saw, examined, treated and/or were consulted concerning the medical condition of W.C. while aboard the Norwegian Getaway.
  2. At all times material hereto, the Ship’s Doctors were physicians holding themselves out to the general public, and the Plaintiff in particular, as being competent and able to safely and properly practice the medical profession.
  3. At all times material hereto, it was the duty of the Ship’s Doctors to provide W.C. with reasonable care under the circumstances and/or medical care that did not fall below the applicable standard of care for cruise ship doctors.
  4. At all times material hereto, the Ship’s Doctors breached their duty through the following acts and/or omissions:
    • Failing to promptly provide W.C. with proper and/or adequate medical care and attention; and/or
    • Failing to timely and/or properly diagnose W.C.’S medical condition; and/or
    • Failing to promptly order appropriate tests to assess W.C.’S medical condition; and/or
    • Failing to adequately monitor W.C.’S medical condition; and/or
    • Failing to adequately treat W.C. with the proper medications; and/or
    • Failing to adequately treat W.C.’S medical condition; and/or
    • Failing to stabilize W.C.’S temperature; and/or
    • Failing to stabilize W.C.’S medical condition; and/or
    • Allowing W.C.’S medical condition to significantly deteriorate; and/or
    • Failing to adequately advise the Plaintiff and/or W.C. regarding his medical condition; and/or
    • Failing to recommend appropriate medical care; and/or
    • Failing to utilize available medical testing and/or available medical equipment with adequate frequency during the medical care and treatment of W.C.; and/or
    • Failing to utilize telephone and/or video consultations with specialists during the medical care and treatment of W.C.; and/or
    • Failing to promptly obtain consultations with appropriate specialists; and/or
    • Failing to promptly have W.C. seen by a shoreside physician; and/or
    • Failing to adequately evacuate W.C. from the Norwegian Getaway in a timely manner; and/or
    • Knowingly rendering treatment to W.C. while lacking the proper licenses to practice medicine in the jurisdiction and/or location of the ship; and/or
    • Failing to have proper licenses to practice medicine in the jurisdiction and/or location of the ship; and/or
    • Breaching the prevailing professional standard of care for health care providers (i.e., the level of care, skill and treatment that, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by a reasonably prudent similar health care provider).
  5. All or some of the above acts and/or omissions by the Ship’s Doctors caused and/or contributed to W.C.’S death and the Plaintiff’s damages.
  6. As a result of the Ship’s Doctors’ negligence, the following damages were incurred:
    • C. was injured about his body and extremities, including severe physical pain and suffering, mental and emotional anguish, loss of enjoyment of life, disability, impairment, inconvenience in the normal pursuits and pleasures of life, feelings of economic insecurity, disfigurement, aggravation of any previously existing conditions therefrom and resulting death. W.C. incurred medical expenses in the care and treatment of the injuries, suffered physical handicap, and his working ability and earning capacity in the future was impaired. W.C. lost the money paid for the cruise, incurred extra expenses such as transportation and had the enjoyment of the cruise ruined or damaged.
    • The Estate of W.C. incurred funeral and medical expenses. The estate also lost the benefit of the net accumulations that W.C. would have obtained had he lived to his normal life expectancy.
    • The survivors suffered lost support and services, funeral expenses, decedent’s companionship and protection, mental pain and suffering, loss of nurture and guidance, and all other damages as allowable by law.

WHEREFORE, the Plaintiff demands judgment for all damages recoverable under general maritime law and/or any other applicable wrongful death and/or survival act.

COUNT VII – NEGLIGENCE AGAINST THE SHIP’S NURSES

 

The Plaintiff realleges, adopts and incorporates by reference the allegations in paragraphs one (1) through thirty-four (34) as though alleged originally herein.

  1. At all times material hereto, the Ship’s Nurses saw, examined, treated and/or were consulted concerning the medical condition of W.C. while aboard the Norwegian Getaway.
  2. At all times material hereto, it was the duty of the Ship’s Nurses to provide W.C. with reasonable care under the circumstances and/or medical care that did not fall below the applicable standard of care for cruise ship nurses.
  3. At all times material hereto, the Ship’s Nurses breached their duty through the following acts and/or omissions:
    • Failing to promptly provide W.C. with proper and/or adequate medical care and attention; and/or
    • Failing to timely and/or properly diagnose W.C.’S medical condition; and/or
    • Failing to promptly order appropriate tests to assess W.C.’S medical condition; and/or
    • Failing to adequately monitor W.C.’S medical condition; and/or
    • Failing to adequately treat W.C. with the proper medications; and/or
    • Failing to adequately treat W.C.’S medical condition; and/or
    • Failing to stabilize W.C.’S temperature; and/or
    • Failing to stabilize W.C.’S medical condition; and/or
    • Allowing W.C.’S medical condition to significantly deteriorate; and/or
    • Failing to adequately advise the Plaintiff and/or W.C. regarding his medical condition; and/or
    • Failing to recommend appropriate medical care; and/or
    • Failing to utilize available medical testing and/or available medical equipment with adequate frequency during the medical care and treatment of W.C.; and/or
    • Failing to utilize telephone and/or video consultations with specialists during the medical care and treatment of W.C.; and/or
    • Failing to promptly obtain consultations with appropriate specialists; and/or
    • Failing to promptly have W.C. seen by a shoreside physician; and/or
    • Failing to adequately evacuate W.C. from the Norwegian Getaway in a timely manner; and/or
    • Knowingly rendering treatment to W.C. while lacking the proper licenses to practice medicine in the jurisdiction and/or location of the ship; and/or
    • Failing to have proper licenses to practice medicine in the jurisdiction and/or location of the ship; and/or
    • Breaching the prevailing professional standard of care for health care providers (i.e., the level of care, skill and treatment that, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by a reasonably prudent similar health care provider).
  4. All or some of the above acts and/or omissions by the Ship’s Nurses caused and/or contributed to W.C.’S death and the Plaintiff’s damages.
  5. As a result of the Ship’s Nurses’ negligence, the following damages were incurred:
    • C. was injured about his body and extremities, including severe physical pain and suffering, mental and emotional anguish, loss of enjoyment of life, disability, impairment, inconvenience in the normal pursuits and pleasures of life, feelings of economic insecurity, disfigurement, aggravation of any previously existing conditions therefrom and resulting death. W.C. incurred medical expenses in the care and treatment of the injuries, suffered physical handicap, and his working ability and earning capacity in the future was impaired. W.C. lost the money paid for the cruise, incurred extra expenses such as transportation and had the enjoyment of the cruise ruined or damaged.
    • The Estate of W.C. incurred funeral and medical expenses. The estate also lost the benefit of the net accumulations that W.C. would have obtained had he lived to his normal life expectancy.
    • The survivors suffered lost support and services, funeral expenses, decedent’s companionship and protection, mental pain and suffering, loss of nurture and guidance, and all other damages as allowable by law.

WHEREFORE, the Plaintiff demands judgment for all damages recoverable under general maritime law and/or any other applicable wrongful death and/or survival act.

Respectfully submitted,

LIPCON, MARGULIES,

ALSINA & WINKLEMAN, P.A.

Attorneys for Plaintiff

One Biscayne Tower, Suite 1776

2 S. Biscayne Boulevard

Miami, Florida 33131

Telephone No.: (305) 373-3016

Facsimile No.: (305 373-6204

 

By:   /s/ Jason R. Margulies                                    

JASON R. MARGULIES

Florida Bar No. 57916

JACQUELINE GARCELL

Florida Bar No. 104358