The case of sick child at Sea and the Doctors line of treatment

The facts are not in dispute. The Carnival cruise ship Ecstasy was only two days out of Miami when Elizabeth developed serious abdominal pain. She consulted the ship's physician, Dr. Mauro Neri. According to the record, he repeatedly advised the family that she was suffering only from flu. He saw no persuasive evidence of appendicitis. When the pain grew worse, the family flew home. There her ruptured appendix was removed, but not before the teenager had been rendered sterile.

Elizabeth sued the Carnival line in the lower state courts of Florida. She lost in the trial court on Carnival's motion for summary judgment, but won in a District Court of Appeal — only to lose again last February in the state Supreme Court. In her petition to the U.S. Supreme Court she challenges a line of cases that appear to immunize cruise lines from responsibility for the malpractice of their doctors.


Was this doctor an independent agent or an employee? Before sailing from Miami, Carnival had entered into a contract with Dr. Neri, a resident of London. At a salary of $1,057 a week he was to serve as ship's doctor. He would be introduced as such at a welcoming embarkation party. He would wear an officer's uniform with four gold stripes. His name and photograph would be used in Carnival's promotional materials. By every outward appearance, he was an officer on an ocean-going ship.

On the other hand, maybe he wasn't. The cruise ticket issued to the Carlisles carried a few lines of fine print: The doctor was aboard solely for the convenience of passengers. "He 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 ..." et cetera, et cetera.

Was this disclaimer sufficient to quash the girl's suit against Carnival?

The Supreme Court of Florida ruled reluctantly last February that it was indeed sufficient: Carnival was not responsible for the opinions of its salaried shipboard doctor. Citing cases, the court held that Dr. Neri was "an independent contractor." A long line of precedents supports the view that a shipowner "may not be held vicariously liable for the medical negligence of its shipboard doctor."

This opinion by Justice Peggy Quince was closer to quarter-hearted than half-hearted. Florida's highest court was clearly unconvinced by Carnival's defense: "We find merit in the plaintiffs' argument and the reasoning of the District Court." Nevertheless, "we must adhere to the federal principles of harmony and uniformity."

The effect was to reverse a sound opinion from Joseph Nesbitt, senior judge of Florida's third District Court of Appeal. He agreed that a long line of precedents would militate against the young woman, but times have changed since the long line began: "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."

"Because it is foreseeable that some cruise passengers at sea will develop medical problems and the only realistic alternative for such an ill or injured passenger is treatment by the ship's doctor provided by the cruise line, there is an element of control over the doctor-patient relationship. ... We hold that the cruise line's duty to exercise reasonable care under the circumstances extends to the actions of a ship's doctor placed on board by the cruise line."

After all, said Judge Nesbitt, the ship's doctor is an agent of the cruise line. His negligence, if proved, is also the line's negligence:

"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, owes a duty of reasonable care to the passengers."

Judge Nesbitt's reasoning in the lower Florida court strikes me as too solid to be set aside by outdated precedent. Today's mammoth cruise liners are floating hotels. Ship doctors are indispensable staff. Maritime law ought to treat them as such.

(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)

COPYRIGHT 2007 UNIVERSAL PRESS SYNDICATE

This feature may not be reproduced or distributed electronically, in print or otherwise without the written permission of uclick and Universal Press Syndicate.