Mark Pestronk
Q: My agency's client badly injured her ankle on a cruise. She claims to have been negligently diagnosed and treated by the ship's doctor, who prescribed nothing more than over-the-counter painkillers for her injury. When she returned home, tests showed that her ankle was broken in several places, and she says that the delay in treatment has left her with a permanent limp. Assuming that the ship's doctor committed malpractice, could my client successfully sue the cruise line for damages?
A: Until last month, I would have said that your client almost definitely could not successfully sue the cruise line. However, in November, the U.S. Court of Appeals for the 11th Circuit (which covers Florida) reversed decades of precedent and held that cruise lines could be responsible for their shipboard doctors' negligence.
Each cruise line's passenger ticket contract has a disclaimer that reads something like this (from Royal Caribbean's contract): "To the extent Passengers retain the services of medical personnel or independent contractors on or off the Vessel, Passengers do so at their sole risk. Any medical personnel attending to a Passenger on or off the Vessel, if arranged by Carrier, are provided solely for the convenience of the Passenger, work directly for the Passenger, and shall not be deemed to be acting under the control or supervision of the Carrier, as Carrier is not a medical provider."
As most of my readers know, the courts generally uphold all disclaimers in cruise line contracts. Even in the absence of such a contract clause, the courts have supported the cruise line's arguments that they should not, as a matter of general maritime law, be responsible for malpractice by medical professionals.
The courts in South Florida, where the nearly all suits by passengers must be filed, have been especially active in establishing these anti-consumer precedents. As the Court of Appeals put it, "In effect, these cases stand for the sweeping proposition no conceivable set of facts could ever justify holding a shipowner vicariously liable when a passenger receives negligent medical care aboard its ship."
Now, however, the Court of Appeals, in a precedent binding on the federal courts in Florida, reversed the rule and held that, where the medical staff act as agents of the cruise line, there is no reason to distinguish between the ship's medical staff, on the one hand, and any other member of the ship's crew acting within his or her authority, on the other hand. The case is Franza v. Royal Caribbean Cruises Ltd., and you can read it at www.pestronk.com/franza.html.
The court made short shrift of the disclaimer that I quoted above: "We would not consider the nurse and doctor to be independent contractors simply because that is what the cruise line calls them."
Thanks to Judge Thomas Dickerson for bringing this case to my attention in an article that he recently wrote for another travel trade publication.
So tell your client that she could successfully sue the cruise line if she has a malpractice claim and the doctor was an employee of the cruise line or was otherwise acting within his authority. She should immediately contact a lawyer who specializes in injury suits against cruise lines, as there are key deadlines in all passenger contracts for filing written claims and suits.
Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at [email protected].