BY MARTHA BRANNIGAN
Miami Herald
A Florida Supreme Court decision this week that cruise lines aren’t liable for the malpractice of onboard physicians won’t put to rest the contentious issue.
Attorneys for a passenger — who sued Carnival Corp. after her appendicitis was misdiagnosed as the flu in 1997 — plan to petition the U.S. Supreme Court to review the question.
“This is a very important question for millions of passengers,” Charles Lipcon, a Miami attorney who intends to appeal on behalf of the passenger, said Friday. “Unless cruise lines are responsible for their doctors, there is basically no recourse for passengers.”
Plaintiffs attorneys say cruise-line doctors typically come from foreign countries, which makes it difficult to serve a lawsuit on them; moreover, their assets — if they have any — are hard to go after.
The case involved a 14-year-old Michigan girl, Elizabeth Carlisle, whose abdominal and back pain and diarrhea was misdiagnosed as flu by a cruise-ship physician. She was later diagnosed with a ruptured appendix and a subsequent infection left her sterile, the suit filed in Miami-Dade Circuit Court alleged.
The trial court dismissed Carlisle’s case against Carnival, but the Third District Court of Appeal in Miami reinstated it in 2003, finding the doctor was the ship’s agent, and therefore the line could be held liable for his actions.
But that decision — which relied on a single, old case in northern California — conflicted with the bulk of federal maritime decisions, which say cruise lines aren’t responsible for their doctors’ deeds.
The state’s high court, noting maritime cases must be treated uniformly, tossed out the case against Carnival on Thursday, even though it agreed that the passenger’s argument about the cruise line’s indirect responsibility made sense.
“The Florida Supreme Court opinion said it agreed with us conceptually,” said Miami attorney David H. Pollack, who represents Carlisle. “Quite a few people who cruise are retired, older people who do have a medical condition. There is a level of comfort to knowing there is someone who can treat you, but what if that someone messes up?”
Pollack said cruise tickets state in fine print that doctors are independent contractors the lines aren’t liable for. “I don’t think anybody when going on a cruise would assume the ship is not responsible for their doctor.”
A Carnival spokesman declined to comment on the case, referring questions to its attorneys. “For well over 100 years, the federal courts and most state courts have held a cruise line isn’t liable for the doctors,” said Darren W. Friedman of Maltzman Foreman P.A., who represents Carnival. “A cruise line is essentially that: a cruise line. It’s not a hospital. The doctors are responsible for their own actions.”
Friedman said suggestions that passengers have no recourse against doctors are inaccurate. “The doctor in this case has insurance,” Friedman said.
Lipcon, Margulies & Alsina, P.A. handled this case that resulted in the ruling that was favorable to passengers. It is anticipated that application will be made to the United States Supreme Court to review the decision.
View the initial favorible ruling, The Carlise Decision. [pdf, 124Kb]
