Franza causes seasickness over vicarious liability

Troubling news for cruise line operators with the groundbreaking Franza ruling. Jana Byron explains what happened.

In 1988, the Fifth Circuit Court of Appeals decided the case of Barbetta v S/S Bermuda Star and in so doing set forth a general principle in US maritime law: a cruise line-as a matter of law- cannot be held vicariously liable for the medical malpractice of its shipboard medical staff. The so-called Barbetta rule has been followed consistently by courts in the Second, Fifth and Ninth Circuits (and had been applied by lower courts in the Eleventh Circuit), but neither the US Supreme Court nor the Eleventh Circuit had addressed the question.

In Franza v. Royal Caribbean, decided on November 10th, 2014, the Eleventh Circuit refused to adopt the Barbetta rule.Observing that no controlling precedent existed, the Eleventh Circuit refused to recognize the immunity from suit for vicarious liability set forth in Barbetta, and in so doing, allowed a plaintiff to pursue a claim for shipboard medical malpractice against a cruise line.

Barbetta: Carry on cruising

In the Barbetta case, the claimants sought to convince the Fifth Circuit that a cruise line, as the employer of shipboard doctors and nurses,was vicariously liable for the actions of the shipboard medical personnel as employees of the cruise line. However, in order to establish such vicarious liability, a claimant is required to demonstrate that the employer had sufficient control over the employee, such that the employer could be rendered liable for the employeeís negligence. The Barbetta court ruled that in the context of cruise lines employing medical staff, this requisite control was lacking and thus the employer-carrier could not be held liable for the employee-doctorís negligence.

The Barbetta court went on to hold that the only duty a cruise line owed its passengers was to properly employ competent and qualified medical staff. Thus, under Barbetta, a passenger could only proceed against a cruise line if it could be shown that the operator breached this narrow duty. Put differently, the Barbetta court rendered cruise lines immune from suit for the negligence of medical staff who had been properly vetted because the cruise lines were not able to control the doctorís decisions with respect to patient treatment and care.

The logic of Barbetta is simple and compelling: cruise lines are experts in cruising and not medicine. Thus, according to the Barbetta court, a cruise line does not have the requisite skills or expertise to direct the doctor/patient relationship and therefore cannot exercise the requisite control over the medical staff to render it vicariously liable for the acts or omissions of its medical providers. The Barbetta court deemed this lack of control so compelling that it concluded that, as a matter of law, a passenger could not state a cause of action against a cruise line for the medical negligence of shipboard medical staff .

Barbetta: Overboard

The Eleventh Circuit didn't just criticize the Barbetta rule: it tossed it overboard and allowed the plaintiff to proceed with her claim against Royal Caribbean for the medical malpractice of the shipboard medical staff. As is usually the case, bad facts make bad law ñ something the Eleventh Circuit alluded to when it commented that the issue of 'vicarious liability raises fact-bound questions'. According to the complaint filed in Franza, the decedent suffered a blow to the head while boarding a trolley near where the ship had docked in Bermuda. After he fell, he was taken to the ship's infirmary and evaluated by a nurse who recommended he return to his cabin cautioning 'that [the decedent] might have a concussion.'

The decedentís condition deteriorated significantly over the next four hours but when his family called onboard 911 the complaint alleged that it took approximately 20 minutes for the shipís personnel to respond. The decedent was returned to the shipís infirmary, where according to the complaint he was forced to wait while the ship obtained his credit card information to pay for the medical services. Nearly four hours after his first visit to the infirmary he was evaluated by the shipís doctor who ordered that he be evacuated to a shoreside hospital in Bermuda. The next day he was airlifted to a hospital in NewYork where he passed away a week later.

'we must now acknowledge that medical professionals routinely work for corporate masters'

The decedentís daughter sued Royal Caribbean directly - not the ship's medical staff - on behalf of his estate, seeking to hold the cruise line liable for medical negligence of the infirmary staff. The district court dismissed the claim citing Barbetta. The Eleventh Circuit reversed and remanded the case. The appellate court noted that the plaintiffs were making a 'modest request' that they be permitted to proceed with the claim for vicarious liability. As the court put it, 'we can see nothing inherent in onboard medical negligence, when committed by fulltime employees acting within the course and scope of their employment, that justifies '[immunity from suit]' and that rather questions of an employerís liability for its employee's actions are questions of fact.

Unmoved by the cruise lineís argument to uphold Barbetta, the court noted, 'the roots of the Barbetta rule snake back into a wholly different world we now confront state of the art cruise ships that house thousands of people and operate as floating cities, complete with well-stocked infirmaries and urgent care centers'. In place of truly independent doctors and nurses,we must now acknowledge that medical professionals routinely work for corporate masters.

More specifically, the Court rejected the three 'pillars' of Barbetta:

1. The shipowners cannot/should not interfere with the doctor/patient relationship. The Franza court noted that modern cases reject this and in fact have said that inquiry into whether or not the doctor is an agent is appropriate.

2. The shipowner cannot control or supervise medical personnel. In rejecting this, the court noted that cruise lines have some institutional knowledge of medicine and shore side personnel qualified to control/ supervise medical personnel.

3. Shipowners do not have 'immediate' control over doctors. In rejecting this, the Franza court noted that this is a fact specific inquiry and that with modern technology and ease of communication with the ships, this is no longer a valid reason for Barbetta immunity.

Trouble ahead?

The Franza ruling is groundbreaking, and for cruise line operators, highly troubling, for several reasons. First, it allows for a new venue for medical malpractice claims that was, until now, essentially precluded by Barbetta. It may also create problems for the cruise industry because, at present, Franza is only binding upon courts in the Eleventh Circuit- which is the forum of choice for most cruise lines that employ forum selection clauses in their passenger contracts. And finally, where there was no conflict among the circuits on the question of a carrierís vicarious liability for medical negligence of its employees, now there is one, which makes the issue ripe for consideration by the Supreme court. Where the case goes from here remains to be seen but it will undoubtedly result in more lawsuits against the cruise industry. Watch this space for more developments.