It is really easy to commit malpractice when handling cruise ship injury cases. That’s because the law allows the cruise ship industry to insert contractual limitations in their ticket language. When you read the small print of the twelve pages that accompany the ticket you realize what a legal minefield it is and it’s all legal.
If you accept one of these cases you better be prepared for the fine print provisions. There is an excellent article in the Summer 2011 issue of The Trial Lawyer published by the National Trial Lawyer’s Association. Gerry McGill spells out the things you need to be aware about in simple clear languge in his article entitled Handling Cruise Line Passenger Claims. Among the warnings he points out are the following:
1. While the general maritime statute of limitations is three years, you are required to give notice and details of a claim within 6 months and file within one year if it involves a cruise ship
2. The cruise line has the right to contriol the foruum where you have to sue. The main places are Florida, California and Washington.
3. Cruise ship doctors are independent contactors and the line is not responsible for their actions
4. The cruise line is not responsible for injuries which occur on shore while on a ship organized excursion
5. There is a limitation on how much they owe for liability for baggage and personal belongings
6. The line has the right to change the itinerary any way they want no matter what they advertised
7. The ticket excludes claims from emotional distresss.
8. The line has the right tio search the stateroom, person and personal belongings of passengers at their discretion
9. The line has the right to refuse passenger, to disembark or confine a passenger to their cabin at their discretion.
A friend of mine, who is a great trial lawyer, has a trial where the issue is the hospital’s negligence for allowing an unqualified doctor privileges resulting in injury to the patient. He wanted some suggestions on concepts that might be used. I told him that I didn’t have anything original, but shared some general ideas. While we all aren’t going to have a case like that, the odds are we will have a case where the issue is negligent hiring in one sense or another. Where there is an element of trust involved these same concepts might apply. For example, hiring a security person who harms someone or any situation where the public would expect the employer to use caution in who they put in charge. Here are some very random ideas to consider:
It’s a case of bait and switch
It’s a case of a broken promise
A (hospital) is supposed to be a safe haven
(Hospitals) are like life guards at the pool when it comes to screening doctors
The buck stops here
They took a calculated risk with their patients
it was business as usual
Now they are closing the ranks
They want a wall of secrecy
Now that there is an injury they are in deep denial about their actions
Nothing short of Russian Roulette with patients
- It’s like taking the batteries out of the fire alarm without telling anyone.
Frank Luntz has been an advisor to the Republican party for a number of years. He has framed issues for them and advised them how to give talks on issues. He wrote a book Words that Work in which he discusses phrases and words that have power with people generally. Here are a few that might apply to a case like this:
- Prevention, protection and accountability
- the "R" words: restore, reform, renew
- "The right to" patients have the right to….
- peace of mind
I also noted that betrayal of a trust is a very powerful concept with people generally. Gerry Spence uses betrayal as a theme in most if not all of his criminal cases and his civil cases as well. We know that people respond to a betrayal of a trust so that should be used in a case like this.
One of may favorite analogies of this is when we fly on an airplane. We are have no obligation to get out and inspect the tires, question the pilot to make sure they are qualified to fly the airplane or do anything other then become a passenger. That’s because we trust the airline to screen their pilots and make sure the airplane is safe for us to fly in since the passenger’s lives are in their hands. Not only that, even if we wanted to make such a safety inspection we can’t. A hospital has even a higher duty of care to make sure their medical staff is competent and their facilities safe because they do their screening of doctors behind closed doors and among themselves.
One last thought. Where warning signs are ignored I like to continue this analogy with a situation on the airplane where a warning light begins flashing in the airplane cockpit. The pilot isn’t supposed to put a piece of black tape over it and ignore it. He or she is supposed to immediately respond before the situation gets out of control. The same thing is true for the supervisor or employer or hospital.
The New England Journal of Medicinehas published a perspectivebyLeonard H. Glantz and George J. Annas "The FDA, Preemption and the Supreme Court" that has provocative ideas about the subject. They acknowledge the obvious fact that:"Everyone would like to be immune from lawsuits" but, note that providing immunity deprives injured people of their day in court. Immunity, they point out, undermines the tort system’s goal of deterring unreasonably dangerous actions or omission.
In 1992, the U.S. Supreme Court in Riegel v. Medtronic determined that the Medical Device Amendments of 1976 preempted the area of device regulation. In an 8 to 1 decision the court said in cases where people were injured by defectively designed medical devices that the FDA had determined were safe and effective after full review were barred by preemption. The Medical Device Amendments to the Food, Drug and Cosmetics Act contain language prohibiting the states from establishing "any requirement" that is "different from or in addition to" requirements in federal statute relating to health and safety
Next Fall, the court will a case involving FDA approved drugs. The pharmaceutical industry with the support of the Bush Administration is arguing that once the FDA approves a drug preemption prohibits lawsuits by people injured from the drug.
This is a frightening situation because there is no remedy provided for the injured person once immunity is given. There is no means of accountability for the industry involved because the FDA is understaffed, overworked and administered by Bush appointee’s in the hip pocket of the pharmaceutical industry. The result is no remedy for the wrong done and no sanction to change behavior.