It seems like every month brings another story about some dire medical problem aboard a cruise ship where the subjects’ misery is compounded by their inability to seek legal relief. But after more than a century, it looks as though cruise passengers now might be able to sue for medical malpractice.
As reported last month by the Associated Press (AP), a federal appeals court ruled that the exemption to malpractice liability that cruise lines were given through a series of court cases no longer should apply. The 11th U.S. Circuit Court of Appeals said that the most recent such ruling, known as “Barbetta,” is outdated law. Previous rulings had said that cruise passengers shouldn’t expect the same level of medical care on a ship as they get on land, and that ships’ doctors and nurses were private contractors beyond the cruise lines’ direct control.
So if you got sick or suffered an injury while taking a cruise, it was your bad.
That’s what happened to Pasquale Vaglio, who died after taking a fall while cruising. His family sued.
In 2011, Vaglio, 82, was with several family members aboard a Royal Caribbean ship when he fell and hit his head shortly after disembarking to go sightseeing in Bermuda. He was taken to the ship’s medical unit. A nurse examined him briefly, noted a bump and scrape on his head, but did not recommend a diagnostic scan. She advised that he rest in his cabin, and that his wife should monitor him for signs of concussion.
Vaglio’s condition declined, and his daughter contacted ship personnel. It took 20 minutes for a wheelchair to arrive and take him from the cabin back to the infirmary. More time elapsed while staff collected his credit card information. Four hours after his accident, and suffering from bleeding in his skull, Vaglio was examined by the ship’s doctor, who sent him to a hospital in Bermuda.
He was airlifted to a hospital in New York, where he died a week later.
The 11th Circuit court noted that the Royal Caribbean doctor and nurse wore cruise line uniforms, were presented to passengers as ship employees and that the onboard medical center was heavily promoted for its capabilities for care. Some cruise ships, the court said, even have intensive care units and laboratories, and can conduct live video conferences with medical experts on shore.
So why should these medical practitioners and the company that employs them be excused from the consequences of their errors?
“We can discern no sound reason in law to carve out a special exemption for all acts of onboard medical negligence,” Circuit Judge Stanley Marcus wrote. “Much has changed in the quarter-century since Barbetta.”
This victory for patient safety, AP said, could affect many of the 21 million people who take cruises every year.
Joseph Vaglio, Pasquale’s son, told AP, “What we didn’t realize until this happened was that they [cruise lines] have zero liability. There is no way they should be getting away with this. They are making money hand over fist. Part of their cost of doing business should be to have a competent medical staff.”
Instead of accepting responsibility for passenger safety, Royal Caribbean said, essentially, “say what?”
“While cruise ships may have improved their medical facilities in the last 100 years, they should not be punished for it,” wrote the company’s lawyers last month in a motion for rehearing. “Royal Caribbean is not in the business of providing health care. It is in the business of providing vacations.”
The 11th Circuit’s ruling conflicts with other circuits’ decisions. It could end up in the U.S. Supreme Court.
One maritime lawyer told AP that said if the decision stands, successful medical malpractice lawsuits will have to prove that the cruise lines control their medical staffs; that they aren’t independent contractors.
“There’s ample evidence of that control in the modern cruise industry,” according to the story. “The Cruise Lines International Association, for example, requires members to have medical staff aboard all ships around the clock. The organization has developed guidelines and policies for cruise lines to maintain high-standard medical care.”
A cruise line spokeswoman acknowledged that “Cruise ships go to great lengths to keep passengers healthy and well.”
But Royal Caribbean remained unmoved, saying it was unfair to compare cruise ships to an onshore medical center with numerous specialists and access to lab work and test equipment. “Cruise ships are still not floating hospitals,” according to its lawyers.
But the 11th Circuit’s ruling gives Vaglio’s relatives the right to prove their claims that the ship’s medical staff was negligent in his death. Absent a settlement, the case will go a jury to determine if damages are due.