Liability for Medical Malpractice

The Court of Appeals for the 11th Circuit (Alabama, Florida and Georgia) has opened the door to a potential flood of liability exposure for vessel operators for negligence of shipboard doctors and other medical personnel.

The 2014 case of Franza v. Royal Caribbean Cruises Ltd. arose out of the injury and death of Pasquale Vaglio, an 82-year-old cruise ship passenger who fell and struck his head while disembarking for a shore side excursion in Bermuda. Immediately after the accident, Vaglio was taken to the medical facilities aboard Royal Caribbean’s Explorer of the Seas for treatment. The ship’s nurse failed to properly assess Vaglio’s condition. When Vaglio was examined further by the ship’s doctor hours later, he was in need of critical emergency treatment for a brain injury.  He was airlifted to a New York hospital and died a week later. Vaglio’s family brought suit against Royal Caribbean, claiming that it was liable for the negligence of its medical personnel.

The suit was initially dismissed by the trial court, based on longstanding precedent that historically protected vessel operators from the negligence of shipboard medical staff. That general exception to a vessel operator’s liability was based on the rationale that the nature of a physician’s specialized skill and training made it unreasonably impractical to fall within the scope of management and/or oversight by the vessel owner/employer.  Other courts had held that vessel operators were incapable of controlling onboard medical personnel because the patient typically determined the nature and extent of the treatment. In breaking from the longstanding law on this issue, the 11th Circuit re-instated the case. Essential to its ruling was what the appellate court noted as a progression of modern technology over the past decades and the expansion of the employment of medical personnel in corporate settings, including the shipping industry. Such developments, in the 11th Circuit’s view, have made it easier for vessel management to oversee and control the medical personnel they employ.   Consequently, the Franza case holds that vessel owners and operators can now be held liable for the medical malpractice of physicians that serve aboard their vessels. Royal Caribbean said it may appeal the ruling.

This article first appeared in Work Boat magazine. It was also posted on March 1, 2015, at Work Boat’s website.

Navigability a Question of Fact for Federal Courts

The United States district courts have original jurisdiction over any civil case of admiralty or maritime jurisdiction.  Admiralty jurisdiction in tort cases requires that the tortious act occurred on the navigable waters of the United States and the tort bears a significant relationship to traditional maritime activity.  The term “navigable waterways of the United States” refers to bodies of water that are navigable in fact.  This includes waters used or capable of being used as waterborne highways for commerce. There has never been any doubt that admiralty jurisdiction extends to the high seas and the territorial seas, but the same may not be said of inland waters.

In March 2010, Larry Boudreaux was conducting commercial crawfishing activities out of a commercial fishing skiff in the Atchafalaya Basin when a Louisiana Department of Wildlife and Fisheries vessel collided with Mr. Boudreaux’s vessel, sending Mr. Boudreaux overboard.  Mr. Boudreaux suffered physical injuries and brought a tort suit in federal court pursuant to admiralty jurisdiction.  The defendant, the Louisiana Department of Wildlife and Fisheries, filed a Motion for Summary Judgment before the United States District Court for the Western District of Louisiana alleging there was no admiralty jurisdiction because the collision did not occur on navigable waters.

The property where the incident occurred presented a genuine dispute of material fact with regard to whether the area was seasonally navigable.  The property flooded occasionally and defendant argued the flooding did not coincide with any particular commercial season, and that the property was usually high and dry, but it just so happened to be flooded on the day the incident occurred.  The plaintiff presented evidence that with the exception of two or three seasons, he had commercially fished for crawfish and catfish in and around the area since 1985 and he was able to access the area on an annual basis, coinciding with commercial crawfishing season, which generally falls between January and July of each year, depending on the relative water levels.  Mr. Boudreaux also submitted the affidavit of another commercial fisherman that stated he personally commercially fished the waters where the incident occurred for years.

The court denied defendant’s Motion for Summary Judgment and held there is no requirement that a body of water be navigable during a particular commercial season in order for admiralty jurisdiction to be found.  It has been held sufficient for a finding of navigability that a particular body of water is “navigable for a significant portion of time” over the years.


Boudreaux v. LA Dep’t of Wildlife & Fisheries

Longshore Fraud Nets Prison Time

Mervin J. Noel, 51, of Breaux Bridge, Louisiana, plead guilty to one count of making false statements to continue receiving workers’ compensation benefits under the Longshore and Harbor Workers’ Compensation Act. Noel began receiving longshore benefits and Social Security disability benefits after sustaining an injury while working on an offshore oil platform in 1994. His employer had LHWCA coverage through the Louisiana Workers’ Compensation Corp. (“LWCC”). He also applied for and received SSDI benefits.

In 2007, Noel began operating a lawn care business without disclosing his income to either LWCC or SSA. He completed four separate Forms LS-200, Report of Earnings, at the request of LWCC, falsely stating he had no income. He also falsely reported to SSA that he had not worked for wages since being declared disabled.

Noel received $20,776 in LHWCA benefits and $118,220 in SSDI benefits that he was not entitled to based on his earnings.

U.S. District Judge Elizabeth E. Foote sentenced Noel to six months in prison and six months at-home confinement and ordered Noel to pay $138,247 in restitution to LWCC and the United States.

DOL-Joint Bar Association Announces Annual Meeting

The DOL-Joint Bar Association has announced its annual membership meeting, which will be held in conjunction with Loyola Law School’s Annual Longshore Conference. The meeting will be held on Wednesday, March 18, 2015 at 3:00 p.m. at the Pan-American Life Center, Orleans Room (11th Floor), 601 Poydras St., New Orleans LA 70130. Director of OWCP Longshore Tony Rios will be addressing the membership and we will have all of the Regional District Directors in attendance.  This meeting is open to all plaintiff and defense attorneys representing parties before the United States Department of Labor regardless of membership in the DOL-Joint Bar Association.  Please share this announcement with any colleagues who practice before the United States Department of Labor.

For anyone interested in membership in the DOL-Joint Bar Association, you can apply or renew online using your credit card at Applications will also be accepted at the Annual Membership Meeting on March 18th.