You’re sailing aboard a beautiful Cruise Ship in the middle of the ocean at least a day or perhaps two from the nearest port of call. The closest port is most likely a quant island in the Caribbean or country in Central or South America. You don’t mind the geographic remoteness because you are surrounded by every modern convenience aboard your luxury cruise ship and, as a consequence, you feel completely safe. What you are completely unaware of, however, is that if you become seriously sick or injured aboard the cruise ship and ship’s doctor commits medical malpractice, or even kills a loved one, more likely than not you have no claim against the cruise line. To make matters worse, a law suit brought against the ship’s doctor in a U.S. Court will very likely be dismissed because of the court’s inability to exercise personal jurisdiction over the almost always foreign ship’s doctor.
The recent decision in Carlisle v. Carnival Corp, illustrates the confusion amongst Courts addressing the issue of ship board medical malpractice.
In March 1997, the Carlisles sailed as passengers aboard the Carnival cruise ship ECSTASY. Fourteen (14) year old Elizabeth Carlisle felt ill with abdominal pain, lower back pain and diarrhea and was seen several times in the ship’s infirmary by the ship’s physician, Dr. Mauro Neri. For several days Dr. Neri repeatedly advised the Carlisles that Elizabeth had the flu, assured her family it was not appendicitis, and provided antibiotics. The Carlisle family left the ship and returned home to Michigan, where Elizabeth was diagnosed with a ruptured appendix. Elizabeth had her appendix surgically removed and, as a consequence, was rendered sterile by the procedure, scarring and infection.
Her parents sued the Dr. Mauro, individually and also Carnival, alleging the doctor was negligent in his treatment of Elizabeth and that Carnival should be held vicariously liable for the doctor’s negligence under theories of agency, apparent agency and negligent hiring of Dr. Neri.
The contract between Dr. Neri and Carnival provided:
CONTRACTOR agrees to provide services aboard vessel in the capacity of SHIP’S PHYSICIAN . . . Said services shall consist of the providing of medical services and treatment to passengers and crew in accordance with PURCHASER’S Physician guidelines and shall be performed on a seven (7) day -per-week basis during regular and on-call vessel infirmary hours and for emergencies.
The contract further provided Dr. Neri’s weekly salary was his sole source of income during the term of the Agreement, and that Carnival could dismiss Dr. Neri for “violations of the Ship’s Articles” or “failure to perform duties to the satisfaction of” Carnival. Dr. Neri was provided a ship’s uniform and agreed his photograph, name and likeness could be used to promote and publicize Carnival’s vessels in any and all media. Dr. Neri was considered by Carnival to be an officer of the ship.
Carnival, in another document, agreed to indemnify Dr. Neri for up to $ 1 million for claims brought against him arising out of any act or omission on his part while acting in the course of his duties as ship’s doctor. Dr. Neri agreed that Carnival, or its insurer, would be permitted to take absolute control over the defense and handling of such claims.
Provisions within the Cruise Ticket issued to the Carlisles by Carnival provided:
If the vessel carries a physician, nurse …, it is done solely for the convenience of the guest and any such person in dealing with the guest is not and shall not be considered in any respect whatsoever, as the employee, servant or agent of the carrier and the carrier shall not be liable for any act or omission of such person or those under his order or assisting him with respect to treatment, advice or care of any kind given to any guest.
At the trial court level, Carnival filed a Motion for Summary Judgment, essentially asking the Court to rule that Carnival could never be liable for Dr. Neri’s actions no matter how grievous because the doctor was an independent contractor and the Cruise line lacked any meaningful degree of control over Dr. Neri’s doctor-patient relationship with Elizabeth. The trial court ruled in Carnival’s favor, holding that the cruise line was not vicariously liable for the doctor’s negligence under agency and apparent agency law. However in August of 2003, the Third District Court of Appeals reversed the lower court and held that Carnival could be liable under the facts before the Court. In February of 2007, the Florida Supreme Court quashed the decision of the appellate court and held Carnival could not be vicariously liable under the theory of respondeat superior for the medical negligence of the shipboard physician.
At the lower State Court level, Carnival relied upon the long line of decisions exemplified by Barbetta v. S/S Bermuda Star, which held: When a carrier undertakes to employ a doctor aboard ship for its passengers’ convenience, the carrier has a duty to employ a doctor who is competent and duly qualified. If the carrier breaches its duty, it is responsible for its own negligence in hiring an ill qualified doctor. If the doctor is negligent in treating a passenger, however, that negligence will not be imputed to the carrier. The rationale in Barbetta is the lack of a cruise line’s ability to control the doctor-patient relationship and lack of expertise to control the doctor in his practice of medicine, in that “a ship is not a floating hospital.”
Control: According to the Third District, a ship’s physician is in the regular employment of a ship as a salaried member of the crew, subject to the ship’s discipline and the master’s orders, and presumably also under the general direction and supervision of the company’s chief surgeon through modern means of communication. He is, for the purposes of respondeat superior an employee or servant whose negligent treatment of a passenger can be visited upon the cruise line employer.
The appeals court considered that the board of directors of a modern steamship company has as little professional ability to supervise effectively the highly skilled operations involved in the navigation of a modern ocean carrier by its master as it has to supervise a physician’s treatment of shipboard illness. Since the company is held liable for the negligent operation of the ship by the master, it should be liable for the negligent treatment of a passenger by a physician or nurse in the normal scope of their employment, as any other member of the ship’s crew, subject to the orders and commands of the master.
“Convenience” or Commercial Beneficial Decision: The Appeals Court also reasoned that a cruise line must, however, when it undertakes the duty to provide medical facilities and personal aboard its ship assume the duty to hire and treat carefully.
A shipping or cruise line’s decision to provide hospital facilities and medical personnel are substitutes to a shipowner’s otherwise more costly duty to sick passengers. Ships without physicians or nurses are required to change course and put in at the nearest port, according to the seriousness of the illness for both passengers and seamen whose lives may be threatened by illness. The shipowner could be liable under the principle of respondeat superior if proper medical care were not provided in a timely fashion. Placing a physician aboard ship, much more often than not, avoids the inconvenient and more costly duty owed by the cruise line to change course for the benefit of an ailing passenger or crew member.
Given these economic realities, can it truly be said that that cruise lines are placing ship’s doctors and nurses aboard their vessels for the “convenience” of the passengers? While it may have been true decades ago that cruise lines truly provided medical care as a convenience to passenger, those days have long sense passed. For many years now, cruise line’s charge passengers for the medical care provided aboard the ship. Ship’s infirmaries have become profit centers for the cruise lines.
Exculpatory Language Unenforceable Under 46 App. U.S.C.A. § 183c: The exculpatory language contained in the passenger ticket exonerating Carnival for acts of negligence by the Ship’s doctor was invalidated by the Appeals Court under 46 App. U.S.C.A. § 183c, since the statute invalidates certain disclaimers of liability:
It shall be unlawful for the manager, agent, master, or owner of any vessel transporting passengers between ports of the United States or between any such port and a foreign port to insert in any rule, regulation, contract, or agreement any provision or limitation (1) purporting, in the event of loss of life or bodily injury arising from the negligence or fault of such owner or his servants, to relieve such owner, master, or agent from liability, or from liability beyond any stipulated amount, for such loss or injury … All such provisions or limitations contained in any such rule, regulation, contract, or agreement are declared to be against public policy and shall be null and void and of no effect.
In bolstering its decision to invalidate the exculpatory language of the ticket contract, the Appeals Court noted in suits against a ship’s doctor, passengers are effectively faced with having to engage in a game of personal jurisdiction and service of process roulette, with the ability to proceed against the doctor depending on various factors such as contacts with the state, whether medical treatment was provided in Florida waters or at sea, and the practical realities of effectuating service of process. See, e.g., Rana v. Flynn, (personal jurisdiction present where treatment in Florida waters and there were multiple contacts with state); Elmlund v. Mottershead (no personal jurisdiction over non-resident ship’s doctor with insufficient Florida contacts); Rossa v. Sills(sufficient contacts to support personal jurisdiction). In the two years after the Carlisles initiated this suit, they were unable to serve process on Dr. Neri.
Foreseeability: Nearly four (4) million passengers boarded cruise ships departing from the Port of Miami this past year. Illness, mishap, injury and accidents are bound to occur aboard a floating city, which in every sense of the words is a cruise ship.
Cruise passengers at sea in medical distress do not have any meaningful choice but to seek treatment aboard the ship. One of several decisions relied upon by Carnival, was based on the fiction that passengers have some choice in the matter, and that the cruise lines lack control because it cannot interfere in the doctor-patient relationship. The State Appeals Court rejected the Barbetta line of cases and held that the cruise line’s duty to exercise reasonable care under the circumstances extended to the actions of the ship’s doctor placed on board by the cruise line. For purposes of fulfilling the cruise line’s duty to exercise reasonable care, the ship’s doctor was considered an agent of the cruise line whose negligence should be imputed to the cruise line.
In keeping with this reasoning, the Appeals Court also noted that cruise lines are already held vicariously liable for the negligence of ship’s doctor when it concerns substandard care provided to hundreds of crew members under general maritime law, namely a seaman’s claim for maintenance and cure benefits. Do cruise lines somehow exercise a greater degree of care over the same ship’s doctor when shipboard treatment is provided to crew members versus passengers aboard the same vessel?
The Appeals Court noted a cruise ship is, “a city afloat with hundreds of temporary citizens, some of whom are passengers and some of whom are the employees and agents of the cruise line who comprise the ship’s crew, each of whom, within their particular sphere, owe a duty of reasonable care to the passengers.”
The Florida Supreme Court summarized the appellate court’s reason, as follows: The Third District in this case followed Nietes v. American President Lines, Ltd. which was then the sole decision to hold that liability may be imputed to a ship owner under a theory of respondeat superior for the negligence of its shipboard doctor to a passenger. ”The position espoused by the Third District has some appeal because much has changed in the world in the one hundred years since the earlier courts held ship owners immune from such claims.” As the court below observed, “While the presence of an onboard physician is not required by law, 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.” Carlisle v. Carnival Corp.. Moreover, modern means of communication make it possible for the actions of the shipboard doctor to be controlled and supervised by a doctor thousands of miles away.
Notwithstanding the above, the Supreme Court of the State of Florida reasoned that Barbetta still represented the majority rule and in so doing ruled Carnival could not be held vicariously liable for the negligent acts of the doctor hired by the cruise line and serving aboard its vessel.