ON INJURYBOARD: A Two-Part Special Report
It was supposed to be a dream cruise. Don and Marlene Bryce were celebrating Don’s retirement and their 53 years as a married couple. They decided to take a cruise and settled upon Holland America’s ship, “ms Rotterdam.”
Eight days into the cruise, Don became ill. Marlene called the ship’s doctor, Dr. Mark Gibson who gave Don medicine for vomiting.
But Don continued to get worse. Marlene called for a nurse to see her husband. But medical records show when she came, the nurse did not take vital signs. Instead, she took Don’s temperature and gave him more medicine to stop the diarrhea and vomiting.
And one more thing- she told Marlene that they were quarantined to the room.
Areporter for KOMO-TV in Seattle, Liz Rocca, put together the chronology of events from medical records.
Don kept getting worse and Marlene asked for medical help four times. The next morning she called Dr. Gibson again because her husband was weak, confused and was coughing. Give him more medicine the doctor told her.
Don kept going downhill, so much so, that Marlene went to the infirmary to plead with the doctor to see Don. Dr. Gibson told her he would come the next morning because “he didn’t have the time.” The doctor’s notes reveal that Don was improving. He certainly was not.
12 days into the cruise, in the middle of the night, Don’s skin was turning dark. Marlene called for a nurse, who never came. Give him water and food, she advised over the phone.
Finally at 4:50 a.m., after Marlene called again, a nurse arrived. By this time Don’s skin was dark, and he was cold. Then he collapsed and died. The doctor arrived two minutes later.
"I was probably five feet away from him on a chair and saw him die," said Marlene tells KOMO and ABC News.
Don died of a heart attack triggered by pneumonia and dehydration, an autopsy revealed.
While the doctor wouldn’t comment, Holland America did, issuing a statement that says, “We have determined the medical staff acted in a proper and professional manner.”
InjuryBoard attorney member, Gerald McGill is not surprised by any of this.
The Pensacola, Florida lawyer is board certified in maritime law and often represents consumers harmed on cruise ships.
“I always felt this is a total travesty what the cruise lines are allowed to get away with,” he tells IB News.
Passengers assume, and the cruise lines are anxious to convey the impression that excellent medical care is available 24 hours a day.
In fact, Holland America Line (HAL) brags it’s a leader in cruise medicine and that its ships contain a complete medical center carrying much of the standard equipment found in North American hospital emergency departments, “such as an examination room, capabilities to perform simple laboratory tests, an X-ray machine, one isolation bed, an intensive care unit with one bed, and one or two additional beds. A pacemaker, defibrillator, cardiac monitor, electrocardiogram machine, ventilator, oxygen and suction unit are included in the medical center's mini-intensive care unit.”
It’s enough to make a passenger truly relax at sea. To complete the image, doctors and nurses wear a ship uniform giving passengers the impression they are employees working at the direction of the cruise line.
But McGill says the reality is quite different. It’s all contained in the fine print of paragraph 4C of your cruise contract.
“c) We do not undertake to supervise, nor assume any liability in respect of, the acts or omissions of the Ship's barbers, beauticians, masseurs, masseuses or photographers, all of whom are either independent contractors or are employed by independent contractors, and work directly for the passenger when performing their services.”
Specifically, when it comes to doctors or nurses, they have the same independent contractor status as a barber. Again paragraph 4C.
“Similarly, any medical examination or treatment you receive from personnel aboard ship during the Cruise, Cruisetour or HAL Land Trip, is provided solely for your convenience by independent contractors rather than our agent or employee. We do not undertake to supervise the medical expertise of any such personnel and will not be liable for the consequences of any examination, advice, diagnosis, medication, treatment, prognosis or other professional services which a doctor or nurse may furnish or fail to furnish to you. Furthermore, you may be charged for such professional services.”
“It’s doublespeak,” says McGill. “The ships position is they are independent contractors, therefore the cruise lines are not liable,” he says.
“Neither are they required to carry malpractice insurance or be subject to American courts. Consumers need to know there is virtually no recourse through sloppy medical care because they are not responsible for the doctors,” according to McGill.
Indeed Holland America says it’s not liable for damages, unless any loss or damage was due to its negligence or willful fault.
Federal maritime law is some of the earliest law of the land, established in the 1800’s to protect shipping interests. Ships would carry a doctor on board for the convenience of passengers and crew. The ship had to hire a competent physician and give him the equipment needed to do a good job.
Since then courts have vacillated over cruise line responsibility and liability.
Up until the Carlisle case last year, neither the U.S. Supreme Court nor Florida Supreme Court had directly ruled on whether a ship owner could be considered liable for medical negligence by an onboard doctor.
The lawsuit against Carnival was filed by the Carlisle family, who cruised aboard the Ecstasy in March, 1997.
During the cruise, 14-year-old daughter, Elizabeth, became ill with abdominal pain, lower back pain and diarrhea. She was seen several times by the ship’s physician, Dr. Mauro Neri, who told the family that Elizabeth had the flu. She was given antibiotics.
The family decided to interrupt their cruise and go back to Michigan where it was discovered that Elizabeth had a ruptured appendix. Because of the infection she had endured, Elizabeth was rendered sterile.
Her parents sued Dr. Neri for negligence and Carnival for the negligent hiring of Dr. Neri. The case was thrown out on summary judgment by a Florida court, but the Third District Court of Appeals in Miami came out in favor of consumers.
Because Carnival had control over the doctor’s medical services, “for the purposes of fulfilling the cruise line’s duty to exercise reasonable care, the ship’s doctor is an agent of the cruise line whose negligence should be imputed to the cruise line,” the appellate court ruled in reinstating the case.
But in February, 2007, the Florida Supreme Court sided with federal maritime law and the “long standing principle of uniformity,” that a ship owner may not be held vicariously liable for the negligence of a shipboard physician.
EXCLUSIVE TO INJURYBOARD: A Two-Part Special Report
Read PART TWO -- What Consumers Need To Know Before They Cruise