D.G. v. Carnival Corporation, Dr. Sergey Davydenkov, Dr. George Nel, Libby Goslett, Maree Pearce, and Yvonne McConnon Bourgeois

November 22, 2014

D.G. v. Carnival Corporation,  Dr. Sergey Davydenkov, Dr. George Nel, Libby Goslett, Maree Pearce, and  Yvonne McConnon Bourgeois

D.G.,
Plaintiff,

v.

CARNIVAL CORPORATION,
SERGEY DAVYDENKOV, DR. GEORGE NEL,
LIBBY GOSLETT, MAREE PEARCE, and
YVONNE McCONNON BOURGEOIS,
Defendants.

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SECOND AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiff sues Defendants and alleges:

PRELIMINARY ALLEGATIONS

1. Plaintiff, D.G., is a resident of New York.
2. Defendant CARNIVAL CORPORATION (hereinafter referred to as “CARNIVAL”), is a Panamanian Corporation with its principal place of business in Miami, Florida.
3. Defendants, DR. SERGEY DAVYDENKOV and DR. GEORGE NEL (hereinafter collectively referred to as “Ship’s Doctors”), are the ship’s doctors aboard the ship Carnival Sunshine who saw, examined, treated and/or were consulted concerning the medical condition of D.G. while aboard the Carnival Sunshine.
4. Defendants, LIBBY GOSLETT, MAREE PEARCE and YVONNE McCONNON BOURGEOIS (hereinafter collectively referred to as “Ship’s Nurses”), are the ship’s nurses aboard the ship Carnival Sunshine who saw, examined, treated and/or were consulted concerning the medical condition of D.G. while aboard the Carnival Sunshine.
5. The matter in controversy exceeds, exclusive of interests and costs, the sum specified by 28 U.S.C. § 1332. In the alternative, if diversity jurisdiction does not apply, then this matter falls under the admiralty and maritime jurisdiction of this Court.
6. CARNIVAL, at all times material hereto, personally or through an agent:
   1. Operated, conducted, engaged in or carried on a business venture in this state and/or county or had an office or agency in this state and/or county;
   2. Was engaged in substantial activity within this state;
   3. Operated vessels in the waters of this State;
   4. Committed one or more of the acts stated in Florida Statutes §§ 48.081, 48.181 or 48.193;
   5. The acts of CARNIVAL set out in this Complaint occurred in whole or in part in this county and/or state.
   6. The cruise line ticket for the Plaintiff requires that suit be brought in this Court against all the named Defendants in this action.
   7. CARNIVAL, as a common carrier, was engaged in the business of providing to the public and to the Plaintiff in particular, for compensation, vacation cruises aboard the vessel, Carnival Sunshine. As part of providing vacation cruises, CARNIVAL advertised that a competent physician and ship’s medical facility would be available in the event passengers needed medical care.
   8. At all times material hereto, CARNIVAL charged money to passengers for the medical services it provided. Thereby, CARNIVAL is in the business of providing medical services to passengers for profit, and/or CARNIVAL is in the business of operating a floating hospital for their own profit.  Herein, CARNIVAL charged Plaintiff a fee for the medical treatment performed by the medical staff aboard its vessel and for the medicine provided to the Plaintiff patient.  All of the charges for the medical treatment and medicine were charged directly to Plaintiff’s “Sail & Sign” account (or the equivalent shipboard credit card) linked to CARNIVAL.
7. At all times material hereto, the Ship’s Doctors and the Ship’s Nurses (at times collectively referred to as “Medical Defendants”) engaged in substantial and not isolated activities in Florida. Such activities and contacts, assessed over a period of time and considered collectively, establish jurisdiction under Florida’s long arm statute, based on the following:
   1. The Medical Defendants agreed to insure an entity located in Florida (CARNIVAL) for foreseeable risks. Specifically, upon information and belief, the Medical Defendants entered into agreements with Florida-based CARNIVAL to indemnify it and insure it.  As such, because the Medical Defendants contractually agreed to indemnify CARNIVAL (an entity located in Florida) for any harm resulting from their services (including medical malpractice), the Medical Defendants agreed to insure a person and/or risk in Florida under Florida Statute § 48.193(1)(d).  Section 48.193(1)(d) provides that “any person… who contracts to insure any person, property, or risk located in Florida” is subject to the jurisdiction of Courts in Florida. Id. (emphasis added).
   2. The Medical Defendants appointed CARNIVAL as their exclusive agent in Florida, giving CARNIVAL “absolute and complete control” of all claims brought against them in Florida. In consideration of working as a ship’s doctor or nurse for Florida-based CARNIVAL, each Medical Defendant signed indemnity agreements with CARNIVAL. In each indemnity agreement, the Medical Defendants appointed CARNIVAL and CARNIVAL’S insurer as their exclusive agent, giving CARNIVAL “absolute and complete control of the defenses of all proceedings against [the Medical Defendants].”  By virtue of such appointments and giving CARNIVAL a quasi-power of attorney, the Medical Defendants purposefully directed their activities to this forum.   In this case, under the aforementioned agreement, Florida-based CARNIVAL controls and pays for the Medical Defendants’ attorney(s) in Florida.  Accordingly, the Medical Defendants appointed an agent in Florida (other than their attorney(s)) to assume complete control of their defenses in this case.
   3. At all times material hereto, the Medical Defendants worked as ship’s doctors or ship’s nurses aboard CARNIVAL’S vessels (and/or other cruise lines’ vessels), while the vessels were in Florida ports. During each of these times, while the vessel was in a Florida port or in Florida territorial waters, the Medical Defendants were expected to and/or did in fact provide medical care to passengers in Florida.  As such, harm resulting from the Medical Defendants’ services performed in Florida was a foreseeable risk in Florida, for which the Medical Defendants insured CARNIVAL in Florida.  As stated, this grants the Court personal jurisdiction over the Medical Defendants under Florida Statute § 48.193(1)(d). Alternatively, the Medical Defendants’ continuing agreements to insure Florida-based CARNIVAL should be considered collectively with all of the Medical Defendants’ other contacts (as described herein) to establish jurisdiction under Florida’s general jurisdiction statute, §48.193(2).
   4. At all times material hereto, upon information and belief, the Medical Defendants maintained active bank accounts in Florida and/or the United States and earned taxable income from these accounts.
   5. At all times material hereto, the Medical Defendants provided medical care to passengers in Florida ports and/or in Florida territorial waters, while working and being compensated as a cruise ship doctor or nurse.
   6. At all times material hereto, the Medical Defendants received medical training and continuing medical instruction in Florida.
   7. At all times material hereto, the Medical Defendants purposefully reached out to CARNIVAL (and/or other cruise lines) in Florida and entered into long-term business arrangements with these Florida entities to provide medical services to cruise passengers for profit.
   8. All payments of the Medical Defendants’ earnings from Florida-based CARNIVAL (and/or other Florida-based cruise lines) were processed by the cruise line(s) in Florida.
   9. At all times material hereto, the Medical Defendants (acting in consultation and in concert with CARNIVAL officials/employees located in Florida) failed to evacuate the Plaintiff to a properly equipped medical facility. Accordingly, the facts giving rise to the causes of action in this incident took place, in part, in Florida, thereby also giving this Court specific jurisdiction over the Medical Defendants.
8. Defendants are subject to the jurisdiction of the Courts of this State.
9. The causes of action asserted in this Complaint arise under the General Maritime Law of the United States.
10. At all times material hereto, CARNIVAL, owned, operated, managed, maintained and/or controlled the vessel Carnival Sunshine, including the medical department.
11. At all times material hereto, CARNIVAL owned, operated, managed, maintained and/or controlled the medical equipment in the ship’s medical facility aboard the vessel Carnival Sunshine.
12. At all times material hereto, CARNIVAL had the ability to monitor and control each and every step taken by any person (including the Medical Defendants) working in the medical department via telephone, videoconference, Skype or otherwise. This technology is generally referred to as “Face to Face Telemedicine.”  Such modern means of communication make the location of the cruise ship effectively irrelevant and allows CARNIVAL to directly control the medical care on the ship.
13. At all times material hereto, CARNIVAL had control and/or the right to control any and all persons working in CARNIVAL’S medical department, including the Medical Defendants.
14. At all times material hereto, the Medical Defendants were in the regular, full-time employment of the ship, as salaried member(s) of the crew, subject to the ship’s discipline and the master’s orders, and also under the control of CARNIVAL’S shoreside medical department located in Miami, Florida, through modern means of communication such as “Face to Face Telemedicine.”
15. At all times material hereto, CARNIVAL had the right to fire the Medical Defendants.
16. At all times material hereto, CARNIVAL was responsible for, and liable for, the actions of the Medical Defendants with respect to treatment, or lack of treatment, of the Plaintiff based on a theory of respondeat superior and/or apparent agency.
17. At all times material hereto, the Medical Defendants were employees and/or actual agents and/or apparent agents of CARNIVAL, and at all times acted within the course and scope of their employment and/or agency agreement and/or relationship.
18. At all times material hereto, the Medical Defendants were represented to the Plaintiff and the ship’s passengers as employees of CARNIVAL in that:
    1. They worked in the ship’s medical facility aboard the vessel, which was owned and/or operated by CARNIVAL; and/or
    2. They wore a ship’s uniform provided by CARNIVAL; and/or
    3. They represented themselves as the “ship’s medical crew” to the Plaintiff; and/or
    4. The Ship’s Doctors were called ship’s officer(s) by CARNIVAL, the ship’s officers and the crew; and/or
    5. They ate with the ship’s crew; and/or
    6. They were under the commands of the ship’s officers and followed all of the master’s rules and regulations; and/or;
    7. Their charges for medical treatment and medicine were charged directly to Plaintiff’s “Sail & Sign” account (or the equivalent shipboard credit card) linked to CARNIVAL; and/or
    8. They communicated directly with CARNIVAL (to the captain and to unknown persons in CARNIVAL’S shore side office) while providing treatment to the Plaintiff; and/or
    9. The literature provided by CARNIVAL and its representatives showed the doctor(s) and/or nurse(s) as crewmembers and employees of CARNIVAL;
    10. There were CARNIVAL insignias in various places inside the ship’s medical facility where the Medical Defendants worked; and/or
    11. They were employed full-time by CARNIVAL; and/or
    12. They were paid a salary by CARNIVAL; and/or
    13. They spoke to the Plaintiff(s) as though they had authority to do so by CARNIVAL.
19. At no time did CARNIVAL represent to the Plaintiff in particular, or the ship’s passengers in general, that the Ship’s Doctors and/or the Ship’s Nurses were not agents or employees of CARNIVAL, in meaningful way, but instead were independent contractors.
20. The Plaintiff reasonably relied on the representation of CARNIVAL that the ship’s staff/crew included a medical doctor employed by CARNIVAL and that the vessel had a ship’s medical facility. This reliance was detrimental because it resulted in the plaintiff boarding an airplane based on the negligent medical advice given by the Carnival Medical staff that it was safe to her to fly.  Had she not detrimentally relied on the negligent medical advice given by the Carnival Medical staff, she would not have flown and would not have suffered a stroke.
21. At all times material hereto, CARNIVAL knew of the Medical Defendants’ agency representation and allowed the Medical Defendants to represent themselves as such.
22. Between July 28, 2013 and August 9, 2013, Plaintiff was a paying passenger on the Carnival Sunshine.
23. During the subject cruise, Plaintiff presented to the medical facility onboard the vessel multiple times, and she was given improper and/or negligent medical treatment and/or advice.
    1. Specifically, the Plaintiff reported to the ship’s medical condition with complaints, including, but not limited to, dizziness, headaches, shortness of breath, inability to feel her extremities, blurred vision, and blackened stool.
    2. The Medical Defendants conducted blood tests which showed that the Plaintiff’s hemoglobin levels were very low. However, the Medical Defendants stated that the reading must not be accurate and that the equipment must be faulty.
    3. In addition, the Medical Defendants misdiagnosed the Plaintiff and provided the Plaintiff their medical opinion that it was safe for her to fly on an airplane when, in fact, it was not safe for her to fly.
    4. The Plaintiff left the vessel on August 9, 2013 and took a flight home.
24. The above negligent and/or improper medical care and/or medical advice directly led to the Plaintiff suffering a stroke and other injuries, thereby suffering permanent brain injury and other harms.

COUNT I – NEGLIGENCE AGAINST CARNIVAL^[1]

Plaintiff realleges, adopts, and incorporates by reference the allegations in paragraphs one (1) through twenty-four (24) as though alleged originally herein.

25. It was the duty of CARNIVAL, to provide Plaintiff with reasonable care under the circumstances.
26. Between July 28, 2013 and August 9, 2013, CARNIVAL, and/or its agents, apparent agents, servants, and/or employees breached its duty to provide Plaintiff with reasonable care under the circumstances.
27. On or about the above date(s), Plaintiff was injured due to the fault and negligence of CARNIVAL, and/or its agents, apparent agents, servants, and/or employees as follows:
    1. Failure to timely divert the vessel or to evacuate the Plaintiff by helicopter or speed boat; and/or
    2. Failure to hire properly qualified ship’s doctors and/or nurses; and/or
    3. Failure to hire properly licensed ship’s doctors and/or nurses which had the proper licenses in the jurisdiction of the flag of the ship on which they were hired to provide medical care, so as to be in violation of the law of the flag country with respect to the provision of medical services, and/or
    4. Failure to disclose to passengers that the ship’s doctors and/or nurses: did not have the proper licenses in the jurisdiction of the flag of the ship on which they were hired to provide medical care; and were not properly qualified; and/or
    5. Negligent reliance on the medical opinions and/or advice and/or instructions of ship’s doctors who were: (1) not properly qualified; and/or (2) failed to have the proper licenses in the jurisdiction of the flag of the ship on which they were hired to provide medical care; and/or
    6. Negligent retainer of ship’s doctors and nurses which did not have the proper licenses in the jurisdiction of the flag of the ship on which they were hired to provide medical care, and/or
    7. Failure to use reasonable care to provide and maintain an adequate ship’s medical facility, fit with proper and adequate crew and equipment; and/or
    8. Failure to provide adequate training, instruction and supervision to crew members, particularly medical staff; and/or
    9. Failure to have proper and adequate procedures and/or equipment in effect to handle Plaintiff’s medical condition; and/or
    10. Failure to have an adequate number of medical employees to handle medical emergencies. Specifically, it is unrealistic to have a medical team consisting of one or two doctors or three to four nurses to perform all the services required on a ship carrying thousands of passengers and crew; and/or
    11. Failure to have “Face to Face Telemedicine” tools in place; and/or
    12. Failure to have adequate procedures, policies or tools in place to ensure adequate communication with CARNIVAL’S shoreside medical department; and/or
    13. Failure to furnish such aid and assistance as ordinarily prudent persons would render under similar circumstances.
28. At all times material hereto, CARNIVAL knew of the forgoing conditions causing Plaintiff’s accident and did not correct them, or the conditions existed for a sufficient length of time so that Defendants in the exercise of reasonable care under the circumstances should have learned of them and corrected them.
29. At all times material hereto, CARNIVAL, negligently failed to determine the hazards on the vessel to Plaintiff, failed to eliminate the hazard, failed to modify the hazard and failed to properly warn Plaintiff of the hazard. In addition, Defendant violated the International Safety Management Code and failed to have a proper, adequate and safe Management System Manual. All of the above caused the Plaintiff to be injured and/or which caused the Plaintiff’s injuries to be aggravated and made worse.
30. In light of its knowledge, CARNIVAL negligently failed to hire, train, and/or retain a competent physician and/or competent nurses, and instead, negligently hired and retained incompetent and/or unqualified persons to act as ship’s physician(s) and/or as ship’s nurse(s).
31. As a direct and proximate result of the negligence of CARNIVAL, the Plaintiff’s medical condition was not properly and/or timely diagnosed and/or treated. Further, as a direct and proximate result of the negligent of CARNIVAL, Plaintiff was misadvised that it was safe for her fly on an airplane, which led the Plaintiff to suffer a stroke.
32. As a result of CARNIVAL’S negligence, Plaintiff was injured about her body and extremities, including severe physical pain and suffering, mental and emotional anguish, loss of enjoyment of life, disability, impairment, inconvenience in the normal pursuits and pleasures of life, feelings of economic insecurity, disfigurement, aggravation of any previously existing conditions therefrom, incurred medical expenses in the care and treatment of her injuries including psychiatric and life care, suffered physical handicap, lost wages, income lost in the past, and her working ability and earning capacity have been impaired. The injuries and damages are permanent or continuing in nature, and Plaintiff will suffer the losses and impairments in the future. Further, Plaintiff lost the value of her vacation cruise for which she incurred expenses, including, but not limited to, the cost of the cruise ticket for herself and others as well as transportation costs.

     WHEREFORE, the Plaintiff demands judgment for all damages recoverable under the law against Defendants and demands jury trial of all issues so triable.

COUNT II – NEGLIGENCE AGAINST CARNIVAL FOR THE ACTS OF THE MEDICAL DEFENDANTS BASED ON A THEORY OF VICARIOUS LIABILITY UNDER RESPONDEAT SUPERIOR^[2] – PREVIOUSLY DISMISSED BY COURT ORDER, BUT PLAINTIFF CONTEMPORANEOUSLY SEEKS CONSIDERATION OF THE COURT’S PRIOR ORDER BASED ON FRANZA V. ROYAL CARIBBEAN CRUISES LTD.

Plaintiff realleges, adopts, and incorporates by reference the allegations in paragraphs one (1) through twenty-four (24) as though alleged originally herein.

33. Between July 28, 2013 and August 9, 2013, the Medical Defendants were the ship’s doctor(s) and ship’s nurse(s) aboard the vessel Carnival Sunshine.
34. At all times material hereto, the Medical Defendants were the agents, apparent agents, servants, and/or employees of Defendant CARNIVAL.
35. At all times material hereto, the Medical Defendants were subject to the control and/or right to control by Defendant CARNIVAL.
36. At all times material hereto, the Medical Defendants were acting within the scope of their employment and/or agency.
37. At all times material hereto, CARNIVAL acknowledged that the Medical Defendants would act on CARNIVAL’S behalf, and all of the Medical Defendants accepted the undertaking.
38. At all times material hereto, CARNIVAL is vicariously liable for the acts of the Medical Defendants based on the following:
    1. They worked in the ship’s medical facility aboard the vessel, which was owned and/or operated by CARNIVAL; and/or
    2. They wore a ship’s uniform provided by CARNIVAL; and/or
    3. They represented themselves as the “ship’s medical crew” to the Plaintiff; and/or
    4. The Ship’s Doctors were called ship’s officer(s) by CARNIVAL, the ship’s officers and the crew; and/or
    5. They ate with the ship’s crew; and/or
    6. They were under the commands of the ship’s officers and followed all of the master’s rules and regulations; and/or;
    7. Their charges for medical treatment and medicine were charged directly to Plaintiff’s “Sail & Sign” account (or the equivalent shipboard credit card) linked to CARNIVAL; and/or
    8. They communicated directly with CARNIVAL (to the captain and to unknown persons in CARNIVAL’S shore side office) while providing treatment to the Plaintiff; and/or
    9. The literature provided by CARNIVAL and its representatives showed the doctor(s) and/or nurse(s) as crewmembers and employees of CARNIVAL;
    10. There were CARNIVAL insignias in various places inside the ship’s medical facility where the Medical Defendants worked; and/or
    11. They were employed full-time by CARNIVAL; and/or
    12. They were paid a salary by CARNIVAL; and/or
    13. They spoke to the Plaintiff(s) as though they had authority to do so by CARNIVAL.
39. At all times material hereto, CARNIVAL had a duty to provide the Plaintiff with reasonable care under the circumstances.
40. At all times material hereto, the Medical Defendants owed a duty to provide Plaintiff with reasonable care under the circumstances.
41. Between July 28, 2013 and August 9, 2013, the Medical Defendants breached their duty to provide reasonable care under the circumstances by:
    1. Failure to promptly provide Plaintiff with proper and/or adequate medical care and attention; and/or
    2. Failure to timely and/or properly assess the condition of the Plaintiff; and/or
    3. Failure to timely and/or properly diagnose Plaintiff’s medical condition; and/or
    4. Failure to order appropriate tests (including, but not limited to, further blood tests) to assess the condition of the Plaintiff; and/or
    5. Failure to properly treat Plaintiff’s medical condition; and/or
    6. Failure to properly monitor the Plaintiff; and/or
    7. Failure to promptly obtain consultations with appropriate specialists; and/or
    8. Failure to promptly have Plaintiff seen by a physician; and/or
    9. Failure to warn the Plaintiff that it was not safe for her to fly on an airplane under her condition; and/or
    10. Failure to recommend the immediate evacuation of Plaintiff from the ship by helicopter or speed boat and/or to timely recommend diverting the ship; and/or
    11. A substantial departure from the accepted standards of reasonable medical care and treatment for a ship’s doctor; and/or
    12. A breach of the prevailing professional standard of care for said health care providers, to wit: that level of care, skill and treatment which, in light of all relevant surrounding circumstances as recognized as acceptable and appropriate by a reasonably prudent similar health care provider.
42. Between July 28, 2013 and August 9, 2013, CARNIVAL breached its duty to provide Plaintiff with reasonable care under the circumstances through the above acts of its agents and/or employees and/or servants, including the Medical Defendants.
43. As a result of the negligence of the Medical Defendants, for which CARNIVAL is vicariously liable based on a theory of apparent agency and/or agency by estoppel, the Plaintiff was injured about her body and extremities, including severe physical pain and suffering, mental and emotional anguish, loss of enjoyment of life, disability, impairment, inconvenience in the normal pursuits and pleasures of life, feelings of economic insecurity, disfigurement, aggravation of any previously existing conditions therefrom, incurred medical expenses in the care and treatment of her injuries including psychiatric and life care, suffered physical handicap, lost wages, income lost in the past, and her working ability and earning capacity have been impaired. The injuries and damages are permanent or continuing in nature, and Plaintiff will suffer the losses and impairments in the future. Further, Plaintiff lost the value of her vacation cruise for which she incurred expenses, including, but not limited to, the cost of the cruise ticket for herself and others as well as transportation costs.

     WHEREFORE, the Plaintiff demands judgment for all damages recoverable under the law against Defendants and demands jury trial of all issues so triable.

COUNT III – NEGLIGENCE AGAINST CARNIVAL FOR THE ACTS OF THE MEDICAL DEFENDANTS BASED ON A THEORY OF VICARIOUSLY LIABILITY UNDER APPARENT AGENCY

Plaintiff realleges, adopts, and incorporates by reference the allegations in paragraphs one (1) through twenty-four (24) as though alleged originally herein.

44. Between July 28, 2013 and August 9, 2013, the Medical Defendants were the ship’s doctor(s) and ship’s nurse(s) aboard the vessel Carnival Sunshine.
45. At all times material hereto, the Medical Defendants were represented to the Plaintiff, the Plaintiff’s husband, and the ships’ passengers as employees and/or agents and/or servants of CARNIVAL, in that:
    1. They worked in the ship’s medical facility aboard the vessel, which was owned and/or operated by CARNIVAL; and/or
    2. They wore a ship’s uniform provided by CARNIVAL; and/or
    3. They represented themselves as the “ship’s medical crew” to the Plaintiff; and/or
    4. The Ship’s Doctors were called ship’s officer(s) by CARNIVAL, the ship’s officers and the crew; and/or
    5. They ate with the ship’s crew; and/or
    6. They were under the commands of the ship’s officers and followed all of the master’s rules and regulations; and/or;
    7. Their charges for medical treatment and medicine were charged directly to Plaintiff’s “Sail & Sign” account (or the equivalent shipboard credit card) linked to CARNIVAL; and/or
    8. They communicated directly with CARNIVAL (to the captain and to unknown persons in CARNIVAL’S shore side office) while providing treatment to the Plaintiff; and/or
    9. The literature provided by CARNIVAL and its representatives showed the doctor(s) and/or nurse(s) as crewmembers and employees of CARNIVAL;
    10. There were CARNIVAL insignias in various places inside the ship’s medical facility where the Medical Defendants worked; and/or
    11. They were employed full-time by CARNIVAL; and/or
    12. They were paid a salary by CARNIVAL; and/or
    13. They spoke to the Plaintiff(s) as though they had authority to do so by CARNIVAL.
46. It was reasonable for the Plaintiff to believe that the Medical Defendants were CARNIVAL’S agents because they wore ship’s uniforms and admitted Plaintiff to the ship’s medical facility. In addition, at all times material hereto, the Medical Defendants spoke and acted as though they were authorized to do so by CARNIVAL.  In addition, pre-cruise literature in the public domain stated that there was a medical facility onboard the vessel with doctors and nurses, which the Plaintiff reasonably believed were Carnival’s agent.
47. At no time did CARNIVAL represent to the Plaintiff in particular, or the ship’s passengers in general, that the Ship’s Doctors and/or the Ship’s Nurses were not agents or employees of CARNIVAL, in meaningful way, but instead were independent contractors.
48. At all material times hereto, Plaintiff reasonably relied on the representations of the Medical Defendants (that they were employees and/or agents and/or servants of CARNIVAL) to her detriment when she took a flight back home following the cruise when it was medically unsafe to do, based on the medical advice of the Carnival doctors and/or nurses. Had the Plaintiff not relied on these representations, she would not have flown and not suffered a stroke.
49. This reasonable reliance was detrimental because Medical Defendants’ negligent medical care and improper medical advice directly led to the Plaintiff suffering a stroke and other injuries, thereby suffering permanent brain injury and other harms.
50. At all times material hereto, CARNIVAL knew of the Medical Defendants’ agency representation and allowed the Medical Defendants to represent themselves as such.
51. CARNIVAL is estopped to deny that the Medical Defendants were its apparent agent and/or apparent employee and/or apparent servant.
52. Between July 28, 2013 and August 9, 2013, CARNIVAL had a duty to provide the Plaintiff with reasonable care under the circumstances and through the acts of its apparent agents, the Medical Defendants breached their duty to provide Plaintiff with reasonable care under the circumstances.
53. Plaintiff was injured due to the fault and/or negligence of CARNIVAL through the acts of its apparent agents, the Medical Defendants, as follows:
    1. Failure to promptly provide Plaintiff with proper and/or adequate medical care and attention; and/or
    2. Failure to timely and/or properly assess the condition of the Plaintiff; and/or
    3. Failure to timely and/or properly diagnose Plaintiff’s medical condition; and/or
    4. Failure to order appropriate tests (including, but not limited to, further blood tests) to assess the condition of the Plaintiff; and/or
    5. Failure to properly treat Plaintiff’s medical condition; and/or
    6. Failure to properly monitor the Plaintiff; and/or
    7. Failure to promptly obtain consultations with appropriate specialists; and/or
    8. Failure to promptly have Plaintiff seen by a physician; and/or
    9. Failure to warn the Plaintiff that it was not safe for her to fly on an airplane under her condition; and/or
    10. Failure to recommend the immediate evacuation of Plaintiff from the ship by helicopter or speed boat and/or to timely recommend diverting the ship; and/or
    11. A substantial departure from the accepted standards of reasonable medical care and treatment for a ship’s doctor; and/or
    12. A breach of the prevailing professional standard of care for said health care providers, to wit: that level of care, skill and treatment which, in light of all relevant surrounding circumstances as recognized as acceptable and appropriate by a reasonably prudent similar health care provider.
54. As a result of the negligence of the Medical Defendants, for which CARNIVAL is vicariously liable based on a theory of apparent agency and/or agency by estoppel, the Plaintiff was injured about her body and extremities, including severe physical pain and suffering, mental and emotional anguish, loss of enjoyment of life, disability, impairment, inconvenience in the normal pursuits and pleasures of life, feelings of economic insecurity, disfigurement, aggravation of any previously existing conditions therefrom, incurred medical expenses in the care and treatment of her injuries including psychiatric and life care, suffered physical handicap, lost wages, income lost in the past, and her working ability and earning capacity have been impaired. The injuries and damages are permanent or continuing in nature, and Plaintiff will suffer the losses and impairments in the future. Further, Plaintiff lost the value of her vacation cruise for which she incurred expenses, including, but not limited to, the cost of the cruise ticket for herself and others as well as transportation costs.

     WHEREFORE, the Plaintiff demands judgment for all damages recoverable under the law against Defendants and demands jury trial of all issues so triable.

COUNT IV – NEGLIGENCE AGAINST THE SHIP’S DOCTORS

Plaintiff realleges, adopts, and incorporates by reference the allegations in paragraphs one (1) through twenty-four (24) as though alleged originally herein.

55. At all times material hereto, the Ship’s Doctors were the ship’s physicians aboard the vessel Carnival Sunshine between July 28, 2013 and August 9, 2013.
56. At all times material hereto, the Ship’s Doctors were physicians holding themselves out to the general public, and the Plaintiff in particular, as being competent and able to safely and properly practice the medical profession.
57. It was the duty of the Ship’s Doctors to provide Plaintiff with reasonable care under the circumstances and/or medical care which did not fall below the applicable standard of care for cruise ship doctors.
58. Between July 28, 2013 and August 9, 2013, the Ship’s Doctors and/or their agents, servants, and/or employees, breached their duty to provide Plaintiff with reasonable care under the circumstances.
59. On or about the above date, Plaintiff was injured due to the fault and negligence of the Ship’s Doctors and/or their agents, servants, and/or employees as follows:
    1. Failure to promptly provide Plaintiff with proper and/or adequate medical care and attention; and/or
    2. Failure to timely and/or properly assess the condition of the Plaintiff; and/or
    3. Failure to timely and/or properly diagnose Plaintiff’s medical condition; and/or
    4. Failure to order appropriate tests (including, but not limited to, further blood tests) to assess the condition of the Plaintiff; and/or
    5. Failure to properly treat Plaintiff’s medical condition; and/or
    6. Failure to properly monitor the Plaintiff; and/or
    7. Failure to promptly obtain consultations with appropriate specialists; and/or
    8. Failure to promptly have Plaintiff seen by a physician; and/or
    9. Failure to warn the Plaintiff that it was not safe for her to fly on an airplane under her condition; and/or
    10. Failure to recommend the immediate evacuation of Plaintiff from the ship by helicopter or speed boat and/or to timely recommend diverting the ship; and/or
    11. A substantial departure from the accepted standards of reasonable medical care and treatment for a ship’s doctor; and/or
    12. A breach of the prevailing professional standard of care for said health care providers, to wit: that level of care, skill and treatment which, in light of all relevant surrounding circumstances as recognized as acceptable and appropriate by a reasonably prudent similar health care provider; and/or
    13. Failure to inform CARNIVAL and the Plaintiff that the Ship’s Doctors were not competent to handle the Plaintiff’s medical problems.
60. As a direct and proximate result of the negligence of the Ship’s Doctors’, the Plaintiff was injured about her body and extremities, including severe physical pain and suffering, mental and emotional anguish, loss of enjoyment of life, disability, impairment, inconvenience in the normal pursuits and pleasures of life, feelings of economic insecurity, disfigurement, aggravation of any previously existing conditions therefrom, incurred medical expenses in the care and treatment of her injuries including psychiatric and life care, suffered physical handicap, lost wages, income lost in the past, and her working ability and earning capacity have been impaired. The injuries and damages are permanent or continuing in nature, and Plaintiff will suffer the losses and impairments in the future. Further, Plaintiff lost the value of her vacation cruise for which she incurred expenses, including, but not limited to, the cost of the cruise ticket for herself and others as well as transportation costs.

      WHEREFORE, the Plaintiff demands judgment for all damages recoverable under the law against Defendants and demands jury trial of all issues so triable.

COUNT V – NEGLIGENCE AGAINST THE SHIP’S NURSES

Plaintiff realleges, adopts, and incorporates by reference the allegations in paragraphs one (1) through twenty-four (24) as though alleged originally herein.

61. At all times material hereto, the Ship’s Nurses were the ship’s nurses aboard the vessel Carnival Sunshine between July 28, 2013 and August 9, 2013.
62. It was the duty of the Ship’s Nurses to provide Plaintiff with reasonable care under the circumstances and/or medical care which did not fall below the applicable standard of care for cruise ship nurses.
63. Between July 28, 2013 and August 9, 2013, the Ship’s Nurses, and/or their agents, servants, and/or employees breached their duty to provide Plaintiff with reasonable care under the circumstances.
64. On or about the above date(s), Plaintiff was injured due to the fault and negligence of the Ship’s Nurses, and/or their agents, servants, and/or employees as follows:
    1. Failure to promptly provide Plaintiff with proper and/or adequate medical care and attention; and/or
    2. Failure to timely and/or properly assess the condition of the Plaintiff; and/or
    3. Failure to timely and/or properly diagnose Plaintiff’s medical condition; and/or
    4. Failure to order appropriate tests (including, but not limited to, further blood tests) to assess the condition of the Plaintiff; and/or
    5. Failure to properly treat Plaintiff’s medical condition; and/or
    6. Failure to properly monitor the Plaintiff; and/or
    7. Failure to promptly obtain consultations with appropriate specialists; and/or
    8. Failure to promptly have Plaintiff seen by a physician; and/or
    9. Failure to warn the Plaintiff that it was not safe for her to fly on an airplane under her condition; and/or
    10. Failure to recommend the immediate evacuation of Plaintiff from the ship by helicopter or speed boat and/or to timely recommend diverting the ship; and/or
    11. A substantial departure from the accepted standards of reasonable medical care and treatment for a ship’s nurse; and/or
    12. A breach of the prevailing professional standard of care for said health care providers, to wit: that level of care, skill and treatment which, in light of all relevant surrounding circumstances as recognized as acceptable and appropriate by a reasonably prudent similar health care provider; and/or
    13. Failure to inform CARNIVAL and the Plaintiff that the Ship’s Nurses were not competent to handle the Plaintiff’s medical problems.
65. As a direct and proximate result of the negligence of the Ship’s Nurses, the Plaintiff was injured about her body and extremities, including severe physical pain and suffering, mental and emotional anguish, loss of enjoyment of life, disability, impairment, inconvenience in the normal pursuits and pleasures of life, feelings of economic insecurity, disfigurement, aggravation of any previously existing conditions therefrom, incurred medical expenses in the care and treatment of her injuries including psychiatric and life care, suffered physical handicap, lost wages, income lost in the past, and her working ability and earning capacity have been impaired. The injuries and damages are permanent or continuing in nature, and Plaintiff will suffer the losses and impairments in the future. Further, Plaintiff lost the value of her vacation cruise for which she incurred expenses, including, but not limited to, the cost of the cruise ticket for herself and others as well as transportation costs.

WHEREFORE, the Plaintiff demands judgment for all damages recoverable under the law against Defendants and demands jury trial of all issues so triable.

RESPECTFULLY SUBMITTED,
LIPCON, MARGULIES,
ALSINA & WINKLEMAN, P.A.
Attorneys for Plaintiff
One Biscayne Tower, Suite 1776
2 South Biscayne Boulevard
Miami, Florida 33131
Telephone No.: (305) 373-3016
Facsimile No.: (305) 373-6204

By:  /s/ Michael A. Winkleman                  
MICHAEL A. WINKLEMAN
Florida Bar No. 36719
JACQUELINE GARCELL
Florida Bar No. 104358

^[1] In the time between this Honorable Court’s ruling on the Defendant’s Motion to Dismiss and the filing of this Amended Complaint, the Eleventh Circuit Court of Appeals entered its opinion in Franza v. Royal Caribbean Cruises Ltd., which dramatically changed the law regarding cruise ship medical negligence.  More specifically, Franza v. Royal Caribbean Cruises Ltd. directly undercuts the district court case law relied on by Carnival regarding a shipowner’s duty of care contained in its initial Motion to Dismiss.

^[2] This Count was previously dismissed by this Honorable Court based on Barbetta, but contemporaneous with the filing of this Second Amended Complaint, Plaintiff seeks reconsideration of the ruling in light of Franza v. Royal Caribbean Cruises Ltd., which (finally) rejected the outdated precedent of Barbetta.  This count is included in the interests of judicial economy, as the Motion for Reconsideration asks that this count be reinstated.  If and when this is done, a Third Amended Complaint will not be required.