Court to decide liability for malpractice at sea

Jason · July 17, 2006

Hilda and Sam Rosenfeld were on a Celebrity Cruises voyage several years ago when Hilda fell in the shower and sliced open her leg.

The Deerfield Beach couple sought treatment from the ship's doctor. They say he made a mistake, and Hilda, 82, contracted a severe bone infection.

"She's not the same," lamented Sam Rosenfeld, who said his wife now walks with a cane and resents it.

The couple filed a civil suit against the cruise line in 2003, but its chances hinge on a similar case before the Florida Supreme Court that will determine whether cruise lines can be held liable for malpractice at sea.

A decision in that case, Carlisle vs. Carnival, is likely this summer, court watchers say. A ruling for the plaintiffs could broaden legal rights for passengers and make it easier to recover damages. A ruling for the cruise lines, which have long enjoyed immunity from such lawsuits, would be a disappointment for the Rosenfelds.

"If the Supreme Court reverses Carlisle," said their attorney Jack Parris, of Miami, "our case will be thrown out."

Getting U.S.-quality medical care on a cruise ship can be difficult, according to attorneys who file medical claims for seafarers and cruise passengers. Almost all doctors who work on ships are foreign-trained and reside overseas. That limits the jurisdiction of U.S. courts in cases where something goes wrong. Whether ships have vicarious liability for the actions of doctors arose as a legal question in the age of trans-Atlantic liners. Ship captains weren't viewed as competent to oversee the specialized skills of physicians.

"Historically, the law recognized that doctors are trained in a discipline that the cruise lines aren't practicing," said Curtis Mase, a Miami maritime attorney who is defending Celebrity Cruises in the Rosenfeld's suit.

By one count, 27 cases over 100 years have upheld that principle. In only one case, a 1959 suit in federal court in California, was it rejected.

That was the landscape in 1997 when Darce and Kristopher Carlisle took a cruise from Miami on the Carnival ship Ecstasy with their 14-year-old daughter. Feeling ill, the daughter saw the ship's doctor, who treated her for the flu.

The symptoms continued, and the Carlisles left the ship in Cozumel, Mexico. After returning to Detroit they learned their daughter's appendix had ruptured. The ensuing infection damaged her reproductive system, their suit alleged.

A Miami-Dade County circuit court judge dismissed the case against Carnival, saying it was settled law that the cruise line was not liable. But in 2003, the Third District Court of Appeal, which reviews appeals in Miami-Dade and Monroe counties, overturned that decision.

The three-judge panel cited the 1959 case, in which a judge held American President Lines liable for its doctor's mistake. That ruling said the doctor was a salaried crew member, subject to the captain's orders "and presumably also under the general direction and supervision of the company's chief surgeon through modern means of communication."

The decision set off shock waves throughout the cruise industry.

Carnival, later joined by the industry's trade association, appealed the decision to the Florida Supreme Court. It argued that the appeals court was disregarding law established by other courts over time.

But some legal scholars say precedent, while influential, shouldn't always prevail. Times change, said Beth-Ann Herschaft, who wrote an article on cruise ship malpractice in a 1992 issue of the law review at Nova Southeastern University.

In it, Herschaft argued that cruises are resorts, not transportation, and that gives them different medical obligations from ships that carried immigrants 100 years ago. The stack of rulings saying ship owners aren't medically liable is pretty dusty, said Herschaft, who is now an assistant Broward County attorney.

"A lot of cases go back practically to Noah," she said.

Lawyers for cruise lines say that if passengers get bad treatment, they can sue the cruise line for hiring an incompetent doctor. "You can't just have some degree from Kmart medical school," said Mase, the Celebrity attorney.

They also say passengers can sue the doctors. But plaintiff attorneys say the doctor's activities at sea fall beyond the jurisdiction of U.S. courts.

The Rosenfelds were treated by a German doctor, Alfred Gerlach. He gave Hilda an antibiotic to ward off infection. But Parris, their attorney, said the prescription was only half what the doctor had said she needed. The attorney for Celebrity Cruises disputes that claim. But one point is certain: Gerlach won't face the charges in court.

"I have no way to sue a German doctor who commits malpractice on the high seas," Parris said.

The U.S. cruise industry, largely based in South Florida, has a lot riding on the outcome of the Carlisle case. So-called "forum selection" clauses in most cruise ticket agreements require lawsuits to be brought in South Florida courts. A change in Florida law would mean far more than a similar change made anywhere else.

In briefs to the Florida Supreme Court, the cruise lines say that increased liability could hurt Florida's economy. And they say allowing malpractice suits only in Florida will create confusion for a global maritime business.

"If the decision is left to stand, Florida will have one rule and the rest of the country another," Carnival attorneys said.

That may not matter much to Hilda Rosenfeld, who has had heart surgery, suffers from poor circulation and has kidney disease. Her attorney has filed at least two motions to have her case expedited. Both were denied.

Sam Rosenfeld said that his wife was close to losing her leg when she got off the ship for treatment at a hospital in Key West. Doctors had to cut away dying tissue on the leg, but couldn't prevent a bone infection.

"My wife really did suffer," he said. "That's obvious."

By Tom Stieghorst, South Florida Sun-Sentinel