Sandra Rinker v. Carnival Corporation and Ramanbhai Patel – Part 2

Lipcon, Margulies, Alsina & Winkleman, P.A

November 28, 2011

Sandra Rinker v. Carnival Corporation and Ramanbhai Patel – Part 2

Response to Motion for Summary Judgment

Plaintiff in this case was injured when she contracted meningitis onboard Carnival’s vessel. If properly treated her injuries may have been slight, however, Carnival failed to evacuate the Plaintiff, and failed to properly treat the Plaintiff, and delayed her from receiving proper treatment. As a result Plaintiff suffered severe injuries. Plaintiff sued Carnival and Carnival’s physician onboard their ship in the Southern District of Florida. In this response Plaintiff demonstrates that the record facts and the applicable law preclude the Court from granting Defendants’ motion for summary judgment.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 09-23154-CIV-Seitz-Simonton
SANDRA RINKER,
Plaintiff,

v.

CARNIVAL CORPORATION, and
RAMANBHAI PATEL (Ship’s Doctor),
Defendants.

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT CARNIVAL’S MOTION FOR SUMMARY JUDGMENT

COME NOW, Plaintiffs, SANDRA RINKER, by and through undersigned counsel, and hereby file their Response in Opposition to Defendant, CARNIVAL CORPORATION (“Carnival”) Motion for Summary Judgment. In support thereof, Plaintiff relies on the following memorandum of law.

MEMORANDUM OF LAW

I. Background.

The claims in this matter arise from Plaintiff’s severe injuries due, in part, to the failure of Defendant Patel and the nurses for whom he was responsible, to promptly, adequately and properly diagnose Plaintiff’s meningitis and timely evacuate her from the ship. Additionally, Plaintiff’s injuries are due, in part, to the failure of Defendant Carnival to immediately arrange for an ambulance when requested by the Plaintiff’s husband, while the ship was in the Port of San Diego. As a result of same, Plaintiff is profoundly deaf and suffers from severe neurological conditions which make her unable to ambulate or care for herself independently.

On November 4, 2008, Plaintiff was a paying passenger on Defendant Carnival’s vessel, ‘Spirit.’ Throughout the night, Plaintiff was suffering from extreme headaches and vomiting – common indicators of meningitis. Although her husband called the ship’s medical facility at about 2:30 AM and asked for a doctor to immediately come to their cabin, his request was denied. As a result, the Plaintiff’s husband took the Plaintiff to the ship’s medical facility at approximately 3:40 AM while the ship was enroute to the Port of San Diego, California.[1]

Despite the severity of her symptoms, rather than promptly and adequately diagnosing the Plaintiff’s condition, the ship’s nurse, under Defendant Patel’s supervision (but without calling or consulting with Dr. Patel), limited treatment to administrating an injection of Ketorolac, and sending the Plaintiff back to her cabin (which required the Plaintiff’s husband to take her back to the cabin via wheelchair). Several hours later, when the Plaintiff’s husband saw that the vessel was in port in San Diego, California, he called the ship’s purser at 8:00 AM, and asked the purser to call an ambulance for his wife. Carnival’s purser refused and, although the ship was in the Port of San Diego, required the Plaintiff’s husband to request an ambulance through the ship’s medical facility. The ship’s nurse required the Plaintiff to again come to the ship’s medical center before they would arrange for an ambulance; and, advised the Plaintiff’s husband to arrange for help through the purser’s desk to get Plaintiff from her cabin to the ship’s medical center. After Plaintiff again contacted the ship’s purser and requested assistance in bringing the Plaintiff down to the medical center, help was eventually provided by the purser after nearly an hour delay. The Plaintiff was assisted to the ship’s medical facility by her husband and a purser; arriving in the ship’s medical facility just after 9:00 AM.

Thereafter, although the ship was in the Port of San Diego and many passengers had already disembarked the ship themselves, Defendant Patel did not recommend Plaintiff’s immediate evacuation and instead held her for several hours in the ship’s medical facility. Plaintiff was forced to stay on the ship in the ship’s medical facility. A request from the ship’s medical staff was made to the ship’s purser to call an ambulance for the Plaintiff at approximately 11:15 AM, and an ambulance was then called by the Carnival purser. Most, if not all, of the passengers from the cruise had already disembarked the ship by this time. Throughout this time that the Plaintiff was in the ship’s medical center, Dr. Patel failed to administer antibiotics to the Plaintiff, allowing her meningitis to progress. During the several hours that Plaintiff was delayed in the ship’s medical facility by Defendant Patel and his staff, Plaintiff’s meningitis progressed to the point that she had lost most of her ability to hear and had suffered neurological impairment.

At 11:31 AM, the ambulance and paramedics arrived on the ship and, within the hour, Plaintiff was taken to the University of California San Diego Medical Center (“UCSD”). There, physicians began a medical workup and differential diagnosis for a cerebral hemorrhage and/or bacterial meningitis, both life threatening conditions. After a CAT scan and a lumbar puncture, both unable to be performed in the ship’s medical center, the doctors at UCSD diagnosed the Plaintiff’s meningitis and started her on antibiotics. Although the treatment saved her life, by the time she received it, the neurological damage was already too extensive. Had Plaintiff been timely evacuated by Patel, his staff and/or Carnival, when she first presented to the ship’s medical center; or when her husband had first demanded an ambulance at 8:00 AM when the ship was in the Port of San Diego, the process of her bacterial meningitis would have likely been reversed prior to her complete loss of hearing and profound neurological impairment of her vestibular function.

On September 30, 2011, Plaintiff filed her Second Amended Complaint against Carnival and Defendant Patel. The claims against Carnival include: Negligence (Count I); Apparent Agency Against Carnival for the Acts of Nurse Law (Count III); Apparent Agency Against Carnival for the Acts of the ship’s doctor – Defendant Patel (Count IV).

On October 14, 2011, Carnival, pursuant to Rule 12(b)(6), filed a Motion to Dismiss [D.E. 194], Counts III and IV (Apparent Agency) of Plaintiff’s Second Amended Complaint. Carnival further moved to dismiss the allegations contained in paragraphs 20 (g), 20 (i), and 20 (f) of the Second Amended Complaint. On November 7, 2011, Plaintiff filed her Response in Opposition to Carnival’s Motion to Dismiss [D.E. 219]. Carnival’s Motion to Dismiss is currently pending before the Court.

Here, Carnival’s Motion for Summary Judgment challenges Plaintiff’s causes of action based on Negligence (Count I), and Apparent Agency (Counts III and IV). Carnival further challenges that the allegation that a delay in Plaintiff’s medical care caused her injuries.

II. The claims at issue.

A. Regarding Count I (Negligence), the following are Plaintiff’s claims at issue:

First, Carnival’s active negligence for the ship’s purser failure (refusal) to promptly call an ambulance/paramedics when the ship was in the Port of San Diego and James Rinker directly requested Carnival’s purser get an ambulance for the Plaintiff.

Second, Carnival’s active negligence in requiring the Plaintiff to go through the ship’s medical facility in order to obtain an ambulance when the ship was in the Port of San Diego and James Rinker directly requested Carnival’s purser get an ambulance for the Plaintiff.

Third, Carnival’s negligence in delaying the provision of assistance to the Plaintiff in transporting her from her cabin to the ship’s medical center, after requiring that she go to the ship’s medical facility in order to obtain an ambulance when the ship was in the Port of San Diego, when she could not ambulate herself and her husband could not bring her to the ship’s medical center without assistance. Following Carnival’s purser’s transfer of James Rinker’s call for an ambulance to the ship’s medical facility; the ship’s medical facility required that the Plaintiff come from her cabin to the medical facility in order to obtain an ambulance. When James Rinker explained that the Plaintiff was unable to ambulate to the medical facility herself and that he was unable to adequately take her to the ship’s medical facility without a wheelchair and an assistant, he was told to request same from Carnival’s purser. After, again, speaking with Carnival’s purser and requesting a wheelchair and assistance in taking the Plaintiff to the medical facility, the Plaintiff (and her husband) were made to wait approximately one hour for such assistance to arrive and take her to the ship’s medical center.

Fourth, Carnival’s negligent hiring of Defendant Ramambhai Patel, as the ship’s physician. At all relevant times, Defendant Patel did not have the requisite experience and education in order to be qualified to provide emergency medical treatment to the Plaintiff.

Fifth, Carnival’s active negligence in having only one doctor on duty to care for 3,200 people.

B. Regarding Counts III and IV (Apparent Agency), the following claims are at issue:

First, Carnival’s representations to the Plaintiff and her husband (Plaintiff’s medical proxy) regarding its relationship to the ship’s doctor.

Second, Plaintiff’s (and, as her medical proxy, her husband’s) reliance on such representations to her (their) detriment.

For the reasons stated below, Carnival’s Motion for Summary Judgment should be denied in its entirety.

II. STANDARD OF REVIEW

Summary judgment can be rendered only if the summary judgment record shows that: (1) there is no genuine issue, (2) as to any material fact, and (3) the moving party is entitled to judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A “genuine issue” exists (and, thus, summary judgment is improper) when a rational fact finder, considering the evidence in the summary judgment record, could find in favor of the non-moving party. See Ricci v. DeStefano, 129 S. Ct. 2658 (2009). A fact is “material” if it might affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986).

The Court should deny summary judgment when a genuine issue of material fact remains to be tried, or were the moving party is not entitled to a judgment as a matter of law. See Rule 56 advisory committee note to 2007 amendments. The court also may not decide the motion on the basis of clearly erroneous findings of fact, an improper application of the law, or an erroneous legal standard. See In re Brown, 342 F. 3d 620, 633 (6th Cir. 2003). The party moving for summary judgment always has the burden of persuasion on such a motion. See RCO Industries Limited v. Seaboard Coast Line Railroad Company, 644 F. 2d 424, 428 (5th Cir. 1981). (“burden of proof is on the party seeking summary judgment and all reasonable doubts as to existence of a genuine issue of material fact must resolve against the movant”). If the moving party meets its prima facie burden, then the burden of going forward shifts to the non-moving party to show, by affidavit or otherwise, that a genuine issue of material fact remains for the fact finder to resolve. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Beard v. Banks, 548 U.S. 521, 529 (2006).

In ruling on a motion for summary judgment the court should never weigh the evidence. See Baranski v. Fifteen Unknown Agents of Bureau of Alcohol, Tobacco and Firearms, 452 F. 3d 433, 451 (6th Cir. 2006). Further, the Court should not weigh the credibility of witnesses or other evidence in ruling on a motion for summary judgment, as those functions are reserved for the fact finder at trial. Id. at 451. Instead, the court’s role under Rule 56 is narrowly limited to assessing the threshold issue of whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). Thus, the evidence of the non-moving party will be believed as true, all doubts will be resolved against the moving party, all evidence will be construed in light most favorable to the non-moving party, and all reasonable inferences will be drawn in the non-moving party’s favor. See Crawford v. Metropolitan Gov’t of Nashville & Davidson County, 129 S. Ct. 846, 849 n.1 (2009).

Furthermore, evidence produced by the nonmoving party to avoid summary judgment need not be in admissible for if it could be reduced to admissible form at trial. See United States v. Four Parcels of Real Property, 941 F. 2d 1438, 144 (11th Cir. 1991) (citations omitted). As such, documents produced during discovery are deemed authentic when offered by a party opponent.. Wells v. XPEDX, 2007 WL 2696566*4 (M.D. Fla. 2007). See also Burger King Corp. v. Lumbermens Mut. Cas. Co., 410 F. Supp. 2d 1249, 1255 (S.D. Fla. 2005)(Document sufficient to satisfy Federal Rule of Civil Procedure 56(e) and the rules of evidence because document was produced in the case).

III. STATEMENT OF MATERIAL FACTS AS TO WHICH THERE EXIST GENUINE ISSUES TO BE TRIED.

In accordance with Southern District of Florida, Local Rule 7.5, Plaintiff sets forth her statement of material facts in opposition to Defendant’s Motion for Summary Judgment. The statements of material facts below corresponds with the order and with the paragraph numbering scheme used by Defendant. Each paragraph sets forth genuine issues to be tried. In support thereof, Plaintiffs attach as exhibits the following: affidavits, deposition testimony, and documents produced by Defendants during discovery.

1. Admitted that on or about November 4, 2008, Plaintiff was a passenger onboard the Carnival Spirit.

2. Disputed in its entirety. Prior to boarding the cruise, Plaintiff was not provided with the terms and conditions of any Ticket Contract. In order to go on the cruise with her husband, Plaintiff used the services of a travel agency. The travel agency checked them into the cruise. Because Plaintiff and her husband did not book the cruise themselves, Plaintiff and her husband never read the terms and conditions of the Carnival passenger ticket contract. Further, Plaintiff and her husband were never directed by anyone to read the terms and conditions of the Carnival passenger ticket contract. Further, Plaintiff and her husband were never informed by anyone at anytime, either before or during the cruise, that Carnival’s ship’s doctor or medical staff were independent from Carnival. In fact, everything the Plaintiff and her husband saw aboard the Carnival ship indicated that Carnival’s ship’s doctor and medical staff were providing medical care aboard the ship to passenger’s on behalf and under the authority of Carnival. See Affidavit of James Rinker, attached hereto as Exhibit “1.”

3. Disputed to the extent that Plaintiff does recall seeing the ship’s doctor during the cruise. Plaintiff particularly recalls that during a cocktail party, a few days before the incident, the Captain introduced several crewmembers in the showroom, including the ship’s doctor. Exhibit “3,” Deposition of Sandra Rinker, p. 125, line 14 – 25. Admitted to the extent that on November 4, 2008, Plaintiff went to the medical facility with her husband. Between 2:00 and 2:30 AM, on the morning of November 4, 2008, Plaintiff woke up with a headache. Exhibit “2,” Deposition of James Rinker, Jr., p. 21, line 16 – 25; p. 22, line 1. At that time, Plaintiff had taken Excedrin and aspirin to alleviate the pain. Id., p. 22, line 20 – 25.

Shortly thereafter, Plaintiff complained to her husband that the pain in her head was the worst she had ever had. In response, Plaintiff’s husband contacted the ship’s purser, reported the severity of his wife’s headache, and asked for a doctor to be sent to the cabin. The ship’s purser connected Plaintiff with one of the ship’s nurses, who asked Plaintiff to come down to the medical facility. Id., p. 24, line 1-25. Plaintiff’s husband reported to the nurse his wife’s headache and that she had taken Excedrin and aspirin without any improvement. In response, the ship’s nurse asked the Plaintiff to get Tylenol from the Carnival ship’s purser, and that if the headache did not improve, to recontact her. Plaintiff’s husband obtained Tylenol from the ship’s purser, gave it to his wife and waited 30 to 40 minutes. Plaintiff’s headache never changed. Id., p. 25, line 24-25; p. 26, line 1-25; p. 27, line 1-7. At about 2.45 am, Plaintiff’s husband contacted the ship’s nurse to inform her that despite the Tylenol, Exceedrin and Aspirin, the headache had not improved. Plaintiff’s husband asked for the doctor to come up and check her out. Nurse refused saying this was not the sort of thing to wake the doctor up, and requested that they come down to the medical facility. Id., p. 27, line 11 – 25. Both the Plaintiff and her husband walked down to the medical facility. Id., p. 28, line 2-4.

Upon arriving at the ship’s medical facility, Plaintiff and her husband were required to fill out a form. The form indicates it was filled out at 3:40 AM. See Exhibit 4, “MS Carnival Spirit Medical Department” Form.

4. Disputed to the extent that Plaintiff does recall seeing the ship’s doctor during the cruise. Plaintiff particularly recalls that during a cocktail party, a few days before the incident, the Captain introduced several crewmembers in the showroom, including the ship’s doctor. Exhibit “3,” Deposition of Sandra Rinker, p. 125, line 14 – 25.

To the extent that Plaintiff, on her own, might not recall certain details about the medical facility, the ship’s nurses and doctor; it was because at all times material when Plaintiff was in Carnival’s medical center aboard the ship, she was confused and had an altered mental state. She was not capable of making decisions. James Rinker, Plaintiff’s husband, was at all times Plaintiff’s medical proxy and was making decisions for her. See Affidavit of James Rinker, attached hereto as Exhibit “1,” ¶ 15. [2]

In fact, everything the Plaintiff and her husband saw aboard the Carnival ship indicated that the Carnival’s ship’s doctor and medical staff were providing medical care aboard the ship to passenger’s on behalf and under the authority of Carnival. See Affidavit of James Rinker, attached hereto as Exhibit “1,” ¶ 6. There were no signs anywhere aboard the ship, including the ship’s medical center, that indicated that the ship’s doctor and medical staff were independent of Carnival. See Affidavit of James Rinker, attached hereto as Exhibit “1,” ¶ 11.

4(a). During the second night of the cruise, Plaintiff and her husband attended the Captain’s party aboard the ship. This is a gala event organized by the cruise, in which the ship’s Captain gets on stage and makes a presentation to the passengers, introducing himself and the ship’s officers to attending passengers. See Affidavit of James Rinker, attached hereto as Exhibit “1,” ¶ 7.

During the Captain’s Party, the Captain introduced the ship’s doctor, Dr. Patel, as an officer of the ship. At that time, Plaintiff’s husband observed that the ship’s doctor was wearing a blue naval uniform with gold stripes on the sleeves. All of the other ship’s officers were announced by the Captain and lined up across the stage along with the ship’s doctor. All of the other ship’s officers were announced by the captain and lined up across the stage along with the ship’s doctor. All of the ship’s officers, including the Captain, were wearing the identical naval uniform with gold stripes on the sleeves that was being worn by Dr. Patel. Also, all the officers, Dr. Patel, and the Captain, were wearing identical gold name tags with the Carnival logo. See Affidavit of James Rinker, attached hereto as Exhibit “1,” ¶ 8.

Based on the Captain’s introduction of Dr. Patel alongside other ship officers, as well as the fact that Dr. Patel was wearing the same blue naval uniform and gold name tag as other ship officers; it was Plaintiff’s husband’s belief that the ship’s doctor was in fact a Carnival ship’s officer and a Carnival employee acting under the authority and supervision of Carnival when providing medical care to the ship’s passengers. See Affidavit of James Rinker, attached hereto as Exhibit “1,” ¶ 9.

Towards the end of their cruise, Plaintiff and her husband purchased a video of the cruise produced and sold by Carnival. The video includes the Captain’s dinner party as described above. Further, the video depicts Plaintiff and her husband sitting at the Captain’s dinner party. See Affidavit of James Rinker, attached hereto as Exhibit “1,” ¶ 10. An image still from the video showing Plaintiff and her husband is attached to Exhibit 1 (as Exhibit 1(a)). Image stills from the video showing Dr. Patel along with the Captain and the other ship’s officers is attached to Exhibit 1 (as Exhibit 1(b)).

4(b). During his deposition, Dr. Patel conceded that on November, 2008 cruise he was required to attend the captain’s party aboard the Spirit. Exhibit “6,” Deposition of Dr. Patel, p. 189, line 5 – 12. Dr. Patel further conceded he was called onto a stage by the captain in front of all the passengers, and announced as a ship’s officer. Id. p. 189, line 13-17. See also Id., p. 189, line 18:

Q.And were you wearing your blue uniform at the time with the – with the stripes on the sleeves?
That’s correct.

Q.Were you called along with the other ships officers to line up on the stage?
That’s correct.

Q.Were you all dressed the same?
According to the captain, I was one of them. We were all dressed the same, yes.

Q.Would you agree that to a passenger sitting in the audience looking up at the stage you all looked the same, correct?
Correct, sir.

Q.At any time when the captain announced you to the audience of passengers, did he or anybody say that you are independent contractors?
No, sir.

Q.Did – did the captain ever say that you had nothing to do with Carnival, when you were on stage?
Q. Did – do you agree, it would be a passenger’s impression, when seeing you announced by the ship’s captain on the stage with the rest of the ship’s officers and wearing the same uniform and wearing a Carnival name tag, that you were acting on behalf of Carnival?
A.Well, I – I would agree with that.

Exhibit “6,” Deposition of Dr. Patel (emphasis added), p. 190, 8 – 25; p. 191, 1-25; p. 192, 1-3.

4(c). Also, during the cruise, Plaintiff and her husband, observed Carnival’s ship officers many times during the day. During the day, all of the ship’s officers would wear naval uniforms with black shoulder boards and gold stripes and a gold name tag with a Carnival logo. When Plaintiff’s husband saw Dr. Patel in the ship’s medical center on November 4, 2008 and he provided medical treatment to Plaintiff, Dr. Patel was wearing the identical white naval uniform with black shoulder boards and gold stripes and a gold tag with a Carnival logo worn by the other Carnival officers aboard the ship during the cruise. Plaintiff and her husband saw the same type of uniform and name tag worn by the ship’s nurse, Yolanda Dormhel. See Affidavit of James Rinker, attached hereto as Exhibit “1,” ¶ 11.

4(d). When Plaintiff first brought his wife to the ship’s medical center on November 4, 2007, Plaintiff was given a form to fill out by the ship’s nurse, Susan Law. Plaintiff’s husband saw that nurse Law was wearing the same name tag with a Carnival logo that Plaintiff’s husband had observed all of the ship’s officers wearing. The form Nurse Law handed to Plaintiff’s husband to fill out and have Plaintiff sign, had a Carnival logo on it and said “MS Carnival Spirit – Medical Department.” This was the only form that Plaintiff’s husband was handed to fill out when he brought his wife to the ship’s medical center. There was no indication on the form that the ship’s doctor and medical staff were independent of Carnival. Further, the form indicated in capital letters, and required Plaintiff to sign, that “I AUTHORIZE MEDICAL TREATMENT AND FOR ALL EXPENSES TO BE CHARGED TO MY SAIL & SIGN ACCOUNT.” See Exhibit 4, “MS Carnival Spirit Medical Department” Form. The sail and sign account was an account that Plaintiff and her husband established with Carnival at the start of the cruise whereby all purchased they made during the cruise from Carnival would be charged to their account. See Affidavit of James Rinker, attached hereto as Exhibit “1,” ¶ 13. See also Exhibit “6,” Deposition of Dr. Patel, p. 192, line 4 – 21:

Q.In looking at Carnival[‘s] form that the passengers were supposed to fill out when they come – initially present to the ship’s medical center for medical treatment does that say anywhere that the ships medical staff is independent of Carnival?
No, sir.

Q.In fact, it it has got a Carnival logo on it, right?
Yes, sir.

Q.And it says, MS Carnival Spirit, Medical Department, right?
That’s correct.

Q.And that’s you and the nurses, right, the MS Carnival Spirit Medical Department, right?
That’s correct.

4(e). At no time did Dr. Patel, Nurse Law or Nurse Dormehl tell either Plaintiff’s husband or the Plaintiff that they were independent from Carnival or that they were acting independently from Carnival when providing medical care to the ship’s passengers or the Plaintiff. See Affidavit of James Rinker, attached hereto as Exhibit “1,” ¶ 14.

4(f). Carnival’s Medical Center Operations Guidelines, Exhibit “5,” contains the operational guidelines of medical centers aboard Carnival ships. See Exhibit “6,” Deposition of Dr. Patel, p. 114, line 1 – 6 (explaining guidelines). As shipboard physician, Defendant Patel was expected to review and abide by these policies and procedures. Id., p. 114, line 9 – 11. Guideline 1.4.1., contains policies regarding the medical center’s dress code. Pursuant to the policy, the ship’s physician daytime uniform that Dr. Patel had to wear in the ship’s medical center was comprised of: white pants, white shoes, white top, epaulets, and gold officer’s stripes on a black board with a Carnival logo. See Exhibit “6,” Deposition of Dr. Patel, p. 134, line 25; p. 135, line 1, 21. Like the ship’s doctor, the ship’s captain, the staff captain, the hotel director and first officer, also wear white uniforms with gold stripes on a black board with a Carnival logo. Id., p. 135, line 22-25; p. 136, line 1-25; 137, line 1 – 25.

Guideline 1.4.1 also contains applicable official evening uniforms worn when in public areas of the ship during evening hours. Pursuant to the policy, the ship’s physician daytime uniform that Dr. Patel had to wear in the ship’s public areas in the evening was comprised of: a dark blue/dark black suit with three gold stripes on the sleeves and the Carnival logo. Like the ship’s doctor, the ship’s captain, the staff captain, the hotel director and first officer, also wear in the ship’s public areas in the evening a dark blue/dark black suit, with three gold stripes on the sleeves and the Carnival logo. Deposition of Dr. Patel, p.138, 1-25; p. 139, 1-16.

Finally, Guideline 1.4.1 contains a policy requiring name badges to be worn at all times on the vessel. Id. p. 139, 17-22. Pursuant to the policy, the name badge that Dr. Patel had to wear was golden, with a blue and red Carnival logo on it. Like the ship’s doctor, the ship’s captain, the staff captain, the hotel director and first officer, also wear a golden name badge, with a blue and red Carnival logo on it. Id. p. 139, 23 – 25; p. 140, 1 – 25.

4(g). The dress code policies (Carnival uniforms), applicable to the shipboard physician, are also applicable to the shipboard nurses. Id., p. 144, 1 – 25.

4(h). At no time either before or during the cruise did Plaintiff or her husband know that the ship’s doctor and medical staff were independent of Carnival. At all times before and during the cruise, Plaintiff and her husband believed that the ship’s doctor and the medical staff were being supervised by Carnival and were acting under the authority of Carnival when providing medical care to passengers, including the Plaintiff. All of Carnival’s actions: Dr. Patel’s uniforms, nametag and actions; Nurse Dormehl’s nametag, uniform and actions; and Nurse Law’s nametag and actions; as well as Carnival’s medical form, led Plaintiff and her husband to believe that Dr. Patel and the ship’s medical staff were being supervised by Carnival and were acting under the authority of Carnival. See Affidavit of James Rinker, attached hereto as Exhibit “1,” ¶ 18.

5. Admitted to the extent that Plaintiff did not know what were the qualifications of the medical staff. Disputed to the extent that Plaintiff’s husband, Plaintiff’s medical proxy, relied on Carnival’s representations that the ship’s officers were acting on behalf of Carnival. Exhibit “2,” Deposition of James Rinker, Jr., p. 233, line 1- 15:

Q.Were there other ship’s doctors on the other Carnival cruises you went on?
Yes.

Q. Did you have an expectation was to whether or not there would be ship’s doctors on this Carnival cruise?
Yes.

Q. . What was your expectation as to whether or not there would be ship’s doctors and nurses on this cruise before you went on it?
That they had them on prior cruises that I had been on, and that I expected them to be, you know, part of the Carnival.

Id. (emphasis added). See also, Id., p. 234, line 23 – 25:

Q.Did you have an impression as to who the ship’s doctor worked for before you went to see the ship’s doctor on November 4th?
A.To me, everybody on that Carnival ship was a Carnival employee.

Q.Would you have done anything differently if you knew the ship’s doctor was not a Carnival employee?
A.Yes.

Q.What?
I would have got a hold of the captain and requested to get my wife of the ship.

Id. (emphasis added), p. 235 , line 4-5.

Indeed, if Plaintiff’s husband (as Plantiff’s medical proxy making all of Plaintiff’s medical decisions) had known that the ship’s doctor and medical staff were independent of Carnival and were not acting under the authority of Carnival when providing medical care to passengers, Plaintiff’s husband would have gotten a hold of the ship’s Captain and would have requested him to get his wife off the ship. See Affidavit of James Rinker, attached hereto as Exhibit “1,” ¶ 19. See also Exhibit “6,” Deposition of Dr. Patel, p.192, line 22 – 25:

Q.Did you or any of the nurses ever tell Mr. or Mrs. Rinker that you weren’t acting on behalf of Carnival when providing medical care to the passengers?
No, sir.

As such, Plaintiff’s husband (as Plantiff’s medical proxy making all of Plaintiff’s medical decisions), detrimentally relied on the foregoing representations which led him to believe that the ship’s doctor and medical staff were being supervised by Carnival and were acting under the authority of Carnival when providing medical care to passenger’s, including Plaintiff. See Affidavit of James Rinker, attached hereto as Exhibit “1,” ¶ 20.

6. Admitted to the extent that after substantial delay, the Plaintiff was taken to UCSD Hospital in San Diego, California, at 11:55 am.

7. Disputed. As illustrated in his Rule 26 Expert’s Report, Exhibit “7,” and deposition testimony, Exhibit “8,” Plaintiff’s infectious disease expert, Dr. Brian Lipman has testified that the delay in Plaintiff’s medical treatment caused by the timely failure to evacuate her to a hospital, caused her subsequent neurological problems and deafness:

It is my opinion that within a reasonable degree of medical probability that Sandra Rinker should have been evacuated from the ship when she initially presented to the infirmary at 4:02 a.m. on the 4th of November 2008. According to the medical records, the patient was having an incessant headache in association with neurologic symptoms and vomiting. Furthermore, the headache was unrelieved by traditional analgesics and have been present for nearly a full day without improvement.

Furthermore, from review of the records, it appears that there were multiple opportunities for the patient to have been evacuated off the ship and to a hospital at 6:38 a.m. and then again at 8:00 a.m. I believe that any of these opportunities should have been take to have evacuated the patient immediately off the ship, as it was fairly clear that she was suffering from a severe and possibly life-threating illness. Had this been done and had the patient receive standard medical care, it is very likely that subsequent neurologic problems including her deafness could have been avoided.

Id., Exhibit “7,” Lipman Report (emphasis added). See also Exhibit “8,” Deposition of Brian Lipman, M.D., p. 99, line 17 – 22:

Q. Doctor, looking at plaintiff’s Exhibit No. 2, did you write this report?
A. Yes.

Q. Okay. And are the opinions contained in the report based on your education and experience and review of the documents and examination of Miss Rinker we just spoke about?
Q. Are your opinions within your July 22, 2011 report more likely than not from a medical perspective?
Yes.

Q. Now. let’s look at your opinions. The first opinion I see in your report is – it is my opinion within a reasonable degree of medical probability that Sandra Rinker should have been evacuated from the ship when she initially presented to the infirmary at 4:02 A.M. on the fourth of November 2008, is that correct?
Yes are.

Q. Is that your opinion more likely than not from a medical standpoint?
Yes.

Q. Okay. And I see your opinion it appears that there were multiple opportunities for the patient to have been evacuated off the ship into a hospital at 6:37 A.M. and then again at 8:00 A.M. I believe that any of these opportunities should have been taken to have evacuated the patient immediately off the ship as it was fairly clear that she was suffering from severe and possibly life threating illness. Did you write that, is that correct?
Yes.

Q. And is that your opinion from a medical perspective more likely than not?
Yes.

Q. And your next opinion is it is very likely that her neurological problems including her deafness could have been avoided, is that correct?
Yes.

Q. And this opinion is more likely than not from a medical perspective.
Yes.

Id., p. 100, line 1-25; p. 101, line 1-25; p. 102, line 1 – 13.