Articles Posted in Medical Malpractice

Recently, I was involved in a case where a seaman suffered an injury to his shoulder while working for a cruise ship company. The injury necessitated a surgery, which the cruise line company arranged and paid for. Following a course of physical therapy, the physician who performed the surgery, a physician hired and paid for by the cruise line, declared my client at maximum medical cure and the cruise ship company ceased payment of any further maintenance and cure. This occurred despite the disagreement of the physical therapist that my client was at maximum medical cure. The physical therapist felt that my client would definitely benefit from further physical therapy in order to improve his strength and range of motion. Clearly, if further physical therapy would improve the strength and range of motion, my client was not at maximum medical cure. However, the cruise ship selected doctor, a notorious workmen’s compensation physician, nevertheless concluded my client was at maximum medical cure as his opinion was the physical therapy was not necessary.

Thereafter, my client continued to have problems with his shoulder, and sought out a medical evaluation by an independent physician he selected and paid for. That doctor ordered an MRI, and concluded there was a re-tear of the shoulder which necessitated a further surgery.

A demand was mode on the cruise ship company to reinstate maintenance and cure. At this point, the case was in litigation. The cruise ship company was provided the medical reports and MRI report, as well as the MRI films, which showed the seaman needed another surgery because of a re-tear of the rotator cuff. Notwithstanding the clear medical evidence of the need for further medical care and treatment, the cruise line refused to reinstate maintenance and cure until the seamen appeared for a compulsory physical examination before their selected expert. Since the client was out of the country, we refused to comply with this request and demanded the reinstatement of maintenance and cure based on the undisputed medical evidence that there was a re-tear and a need for further treatment.

The recommended surgery was delayed for over a year, and ultimately the seaman appeared for a compulsory physical examination, and the defense expert agreed with the proposed surgery, which did eventually take place.

The question became whether the Defendant had a right to delay reinstatement of maintenance and cure based on the request for a compulsory physical examination. Does an employer of a seaman have a right to a compulsory physical examination in connection with their right to investigate a claim for maintenance and cure?
There is a case out of Seattle, Washington, that addressed this precise issue. The case is Thuyen Thanh Mai v. American Seafoods Company, LLC Case No. 63969-2-I (WA Ct. App., Mar. 14, 2011).
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In recent years, ship owners have increasingly been able to avoid their responsibilities and obligations under the United States laws that are designed to protect seaman, namely the Jones Act enacted by Congress in 1920, and the General Maritime Law which give seaman rights to maintenance and cure as well as claims for unseaworthiness of the vessel. Unseaworthiness is a form of liability without fault. The maritime laws have consistently been interpreted to protect seamen, who historically have been considered the wards of the United States Admiralty Courts.

Ship owners, including cruise ship companies, have fought hard, and spent lots of money, trying to escape their responsibilities under the favorable laws to protect seaman. They have petitioned Congress to repeal the Jones Act, or amend it to lessen the rights of the seamen. They have consistently tried to contract away their obligations, as they do in the context of passenger claims.

In recent years, courts have started to enforce arbitration provisions in a seaman’s employment agreement. Even though a seaman’s employment agreement is a take it or leave it employment agreement, with the seaman having no bargaining rights, and most of the time without any understanding of his legal rights, the courts have allowed ship owners to insert a mandatory arbitration clause into the seaman’s employment agreement.

The Jones Act, enacted in Congress in 1920, which is to be liberally interpreted to benefit seamen, provides for a right to a jury trial. This standard of causation in a negligence case under the Jones Act is very liberal, a seaman only has to prove that his injuries were caused in part by the employer’s negligence. If there was any negligence, no matter how small, which contributed in any way to the seaman’s injury, under the American law, the seaman is entitled to compensation.

Not only has mandatory arbitration provisions in a seaman’s employment contract taken away the seaman’s rights to a jury trial, the ship owners have now been using the employment agreement to take away the seaman’s rights under the Jones Act, putting a mandatory foreign choice of law provision into the employment agreement. The 11th Circuit Court of Appeals recently, in a case involving Norwegian Cruise Lines, enforced the mandatory arbitration clause in the seaman’s employment agreement which also contained a foreign choice of law clause. The court did not accept the argument that since the ship owner was trying to contract away the seaman’s statutory rights under the Jones Act the whole agreement should be stricken as against public policy and thus void. Instead, the court said the arbitration provision was enforceable, and if the seaman could prove at a later date that he was denied his statutory rights, he could come back to court and oppose enforcement of any arbitration award. Obviously, a long and tedious process for a seaman, who has little or no funds to pursue a big shipping company thru long and expensive litigation, especially a cruise ship company.
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The recent problems with the Carnival Triumph are coming to an end. A fire in the ship’s engine room left the ship drifting, without power, water or flushing toilets for five days. Conditions deteriorated to the point that both guests and cruise ship workers had to use plastic bags to dispose of body waste and they walked through excrements when toilets clogged and overflowed. Food lines were up to three hours long and passengers at the front of the lines hoarded food causing worry for those at the back of the line. A lack of air conditioning saw people sleeping on decks and in hallways. A cruiser’s nightmare comes true.

The cruise line said it would give each passenger $500, a free flight home, a full refund for their trip and for most expenses on board, as well as a credit for another cruise, though many passengers indicated they would never cruise again, and definitely not with Carnival.

But what of the cruise ship workers? What do they get? The crew would have had to continue working through this disaster. They would have had to do all that could be done to ensure the safety and comfort, within those confines, of the guests. Is anyone looking out for their health and wellness after exposure to those unsanitary conditions?

The Carnival cruise line’s Triumph didn’t live up to its name for the 3000 passengers unfortunate to be onboard. The ship can be seen getting towed to port, with a ship full of backed up sewage and other disease producing conditions.

Passengers will have to monitor their health over time as they have been exposed to not only the fear of a fire onboard, and loss of power, but also they have exposed to conditions that can lead to serious illnesses and disease.

A commuter ferry boat crashed into a lower Manhattan pier early Wednesday causing injuries to 57 people, and reports indicate one was critically injured.

Firefighters and rescue workers responded to the scene at approximately 8:43am. A passenger reported to CNN that “people were thrown into the air and the ground”.

Many were transported to a local hospital. Reports from the police department indicated that only one person was critically injured.

The right to receive maintenance and cure if you are injured or suffered an illness while in the service of a vessel, as a seaman, is one of the oldest remedies available to seamen. It is an ancient obligation placed on the employer to take care of seamen who suffer an injury or illness while in the service of a vessel. There are a few exceptions to the obligation, and any ambiguities or doubts as to the right of a seamen to maintenance and cure must be resolved in favor of the seaman.

Maintenance and cure is a contractual form of compensation that is provided for under the general Maritime law. The obligation to provide maintenance and cure does not depend on any determination of fault. It is an obligation that is treated as an implied term of any contract of Maritime employment with a seaman.

A seaman can recover maintenance and cure even for an injury or illness that may have pre-existed the seaman’s employment unless the seaman knowingly or fraudulently concealed a medical condition from his employer at the time he was hired.

The employer is entitled to investigate any claim for maintenance and cure benefits before paying them. One of the few defenses available to a Maritime employer to deny maintenance and cure, is a defense that the seaman willfully concealed a pre-existing medical condition from his employer. Most, if not all, employers of seamen, require the seamen to submit to pre-employment physical examinations and interviews. It is at this time that the seaman must be very careful not to fail to disclose any pre-existing medical condition he or she may have as this may later result in a defense raised by the employer to a claim for maintenance and cure.

In order to maintain the defense of an intentional misrepresentation by the seaman, the Maritime employer must establish the three elements in order to have a valid basis to deny maintenance and cure benefits:

1. The seaman intentionally misrepresented or concealed medical information;

2. The medical information that was not disclosed would have been material to the employer’s decision whether to hire the crewmembers; and
3. There is a casual connection between the information that was not disclosed and the injury or illness the seaman is claiming maintenance and cure benefits for in the lawsuit.
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The Justice Department announced a settlement they reached with a drug maker, GlaxoSmithKline, in which GSK agreed to pay Three Billion Dollars in fines!

The fines arose out of allegations that the drug maker engaged in fraud and bribery. The startling revelation about the drug company hit all the major news networks last night. The United States Justice Department calls this the biggest case of healthcare fraud in American history. The drug maker is accused of withholding critical safety information about a diabetes drug called Avandia. At the same time they withheld critical safety information about this drug, the giant drug maker was pushing its sales force to be fierce in their selling of the drug, and the company engaged in incentives labeled as bribery for those doctors that prescribed the drugs to the patients. The failure to disclose the safety information resulted in the drugs being pushed on consumers without knowledge of the dangers and in situations where the drug was not appropriate.

This is an unusual blog for me since I blog only about maritime legal issues, including cruise ship law news. However, this penalty, and the allegations, made me think of the many years which the cruise lines have been accused of failing to disclose the dangers that passengers can face when taking a cruise, including those dangers that are present in the various ports that the cruise ship companies take the passengers to. The allegations have been that the cruise ship companies for years tried to sweep under the carpet dangers, such as sexual assaults and rapes, and other crimes, aboard the cruise ships. As a result, unsuspecting passengers let their guard down, which resulted in more rapes and crimes onboard the cruise ships. Eventually, Congress addressed these issues and passed the Cruise Vessel Security and Safety Act in 2010. This legislation was prompted by Congressional hearings addressing cruise ship safety and crimes. I testified at these Congressional hearings as an invited Maritime Legal Expert.

On Monday, The Enchantment of the Seas cruise ship called for help around 11 a.m. in regards to a 67-year old passenger onboard the ship who was suffering from a stroke. At the time of the call, the cruise ship was about 414 miles from Cape Cod. The passenger was retrieved by a Coast Guard helicopter and then taken to a hospital in Boston. Coast Guard Lieutenant Garin Kirkpatrick stated that “given the poor weather and the distance from shore, we had to meticulously plan the flight in order to conduct the medevac.”

An evacuation from a cruise ship can be a very dangerous procedure, and one not often undertaken unless close to a life and death situation, of an extremely serious accident requiring specialized treatment. Cruise ships are generally not equipped for many emergencies although they state they comply with standards of the emergency physicians association, and hire doctors who have training in emergency medicine.

Our firm handles many cases where passengers and crewmembers have not received appropriate emergency medical treatment, some of which have resulted in death.

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