Carnival, Other Cruise Lines See Rise in Injury Suits

Bloomberg Law’s® extensive network of reporters and editors provides comprehensive authoritative coverage of significant developments and issues  in  product safety and liability...

By Steven M. Sellers

Carnival Corp. and other cruise lines are seeing a rise in negligence cases. Top factors fueling the increase are questionable shipboard medical care and the added risks of popular shipboard attractions and onshore excursions, plaintiffs’ attorneys say.

At least 83 federal personal injury cases were filed against cruise lines in the first three months of 2018 alone, according to Bloomberg Law data. That figure continues an upward trend over the last two years in which cruise lines were hit with 188 negligence suits in 2017, and 164 the year before.

Personal injury cases against the three biggest cruise lines—Carnival, Royal Caribbean Cruises Ltd., and Norwegian Cruise Line Holdings—accounted for 78 to 87 percent of all federal litigation they faced over the last five years, according to Bloomberg Law Litigation Analytics.

The cases often involve slip-and-fall claims, but recent complaints also allege serious illnesses and injuries worsened by shipboard medical decisions.

The family of a passenger who suffered shortness of breath during a 2016 cruise and later died, for example, sued Royal Caribbean March 23. The ship’s doctor and medical staff allegedly underdiagnosed his heart attack and unduly delayed his evacuation to a hospital in Alaska, according to the family’s negligence suit.

Plaintiffs’ lawyers say suits like these are caused in part by low-paid, foreign-trained physicians who often aren’t up to the task of diagnosing and treating life-threatening conditions.

“You can have as many as 6,000 people on a ship, the equivalent of a small town, and you have all of the problems that go along with that, but they aren’t prepared,” said lawyer Ira H. Leesfield, of Leesfield Scolaro in Miami, who regularly represents passengers in cruise ship injury cases.

Plus many cruise ships now offer high-risk adventures and excursions like zip-lines and mountaineering that can up the ante on ship doctors, the attorneys said.

Not all personal injury cases include medical malpractice claims. But when they do, courts are increasingly questioning the industry’s favored defense that ship doctors are independent contractors.

Medical Care Defended

But defense lawyer Jeffrey Maltzman, of Maltzman & Partners in Coral Gables, Fla., disputed the notion that cruise ships offer unsafe trips with subpar medical care.

“I still think it’s the safest vacation you can take,” said Maltzman, who served as staff for five years on a cruise ship and has extensive experience defending the cruise industry in litigation. “Overall, I think medical care on cruise ships is better today than it’s ever been.”

The popularity of cruising certainly remains strong. Cruise revenue for Carnival, Royal Caribbean, and Norwegian, which account for about 80 percent of industry ship capacity, was about $31.5 billion in 2017, according to Bloomberg Intelligence.

Cruise Lines International Association, which bills itself as the world’s largest cruise industry trade association, also disputed the notion that its members provide inferior medical care to passengers.

CLIA’s medical facilities policy mandates that association members agree “to meet or exceed the requirements of the American College of Emergency Physicians’ (ACEP) Health Care Guidelines for Cruise Ships,” CLIA spokeswoman Sarah Kennedy said.

The policy specifies standards for medical infirmary facilities, staffing, equipment, and other requirements for international cruise vessels.

Criticisms of the cruise lines’ quality of medical care miss the mark by misconceiving the purpose of shipboard medical clinics, Maltzman said.

“The intent is not to treat or cure a life-threatening illness, but to stabilize it for evacuation to the nearest medical facility on land,” he said.

He also disagreed that cruise line physicians are often unqualified: “I haven’t seen a case where the physician didn’t have a fairly significant amount of emergency medical experience,” Maltzman said.

Cruise Ships, Not Steamships

Not so, the plaintiffs’ attorneys and others said.

Ship doctors “often have limited supplies on board and can be reluctant to call for a medical evacuation even though they may be just a couple of hundred miles from the U.S. coast,” said lawyer John Hickey, of the Hickey Law Firm, Miami, who ticked off recent negligence claims his firm has litigated against cruise lines.

The physicians, who typically aren’t licensed in the U.S., “aren’t necessarily who you would pick if you had a medical problem, and there’s certainly no second opinion,” said J. Denny Haythorn, a professor of law emeritus at Whittier Law School in Costa Mesa, Calif., with expertise in admiralty and maritime law.

“It’s a matter of money,” Leesfield said. “American doctors don’t take these jobs because they a low-paying and they’re away from home for a long time.”

When medical malpractice claims are pursued, the foreign-flagged cruise lines often press a traditional maritime law defense that they have no liability for their medical staff.

Hickey cited as an example a recent suit he filed against Carnival in which the ship’s doctor allegedly misdiagnosed and delayed the proper treatment of a passenger’s severe digestive illness.

The company argued in Gharfeh v. Carnival Corp. that it had no vicarious liability for the contract doctor’s alleged negligence. But the U.S. District Court for the Southern District of Florida rejected that notion in January, relying on Franza v. Royal Caribbean Cruises, Ltd., an Eleventh Circuit case decided in 2014.

In Franza, a passenger hit his head during an excursion and died after the ship’s medical staff allegedly misdiagnosed his brain injury and delayed further treatment when his condition worsened, according to the decision.

The vicarious liability defense was meant for nineteenth-century steamships that traversed the seas with meager supplies, not today’s floating cities that provide every amenity for cruises to the Caribbean and Asia, the U.S. Court of Appeals for the Eleventh Circuit said.

Errant Excursions

Cruise lines invoke a similar shield for excursion-related passenger injuries, but the industry’s involvement in such attractions may actually increase their liability, the plaintiffs’ lawyers said.

“Today, cruise lines can’t just sell a cruise,” said Leesfield. “They have to sell exotic experiences, such as excursions or attractions on the ship.”

Cruise line liability may be clearer for onboard facilities, such as water slides and pools, but less so for activities offered by onshore vendors, such as parasailing, mountain climbing, and zip-lines.

Cruise operators typically argue, like with their doctors, that such onshore vendors are independent contractors. They also say passenger tickets include express waivers of any liability for onshore injuries.

Celebrity Cruises, for example, won dismissal of a passenger’s zip-line ride injury claims because it wasn’t clear it knew the onshore ride was unsafe.

“Cruise lines need only exercise reasonable care in selecting an excursion operator,” Maltzman, the defense attorney, said. “The cruise line is just in the business of selling a ticket.”

But both Hickey and Leesfield predicted cruise lines will eventually lose their contractor-based liability arguments over adventure vendors, similar to those they’re losing in court over shipboard medical care.

That’s because the lawyers see excursions as profit-sharing “joint ventures” designed by cruise lines—setting a potential liability anchor for plaintiffs.

The cruise lines “have ultimate control over what the excursion does and they help design to excursion from the get-go,” Hickey said. “Just because you call someone an independent contractor doesn’t mean they are.”

Negligence Over Med-Mal Claims

As for plaintiffs’ attorneys assertions that they are getting past the contractor defense in medical care litigation, Maltzman said they’re exaggerating the reach of the Eleventh Circuit ruling.

“All Franza stands for is that there can be a potentially triable issue on a cruise line’s vicarious liability for medical malpractice,” he said. “I’ve yet to see a published case where medical malpractice was actually found against a cruise line.”

The plaintiffs’ lawyers acknowledge they seldom bring true medical malpractice claims in cruise line cases.

But that, Hickey said, is because “medical malpractice cases are expensive and time consuming to prosecute,” requiring experts to assess whether the doctor’s conduct fell below the standard of care.

As result, relatively few personal injury cases against cruise lines include medical malpractice claims even when there is evidence of a ship physician’s negligence, the plaintiff lawyers said.

“A lot of the cases are hybrid, and it’s easier to pursue a case over the initial injury—such as a fall from a slide on the ship—which is aggravated by a misdiagnosis,” said Leesfield. “The cruise ship is liable for the initial injury and that subsumes the medical negligence claim.”

Carnival, Norwegian and Royal Caribbean didn’t respond to requests for comment.

To contact the reporter on this story: Steven M. Sellers in Washington at ssellers@bloomberglaw.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bloomberglaw.com

Copyright © 2018 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Product Liability & Toxics Law News