This article looks at a recent Eleventh Circuit Court of Appeal decision and the departure from the Barbetta Rule that applies to passenger claims against shipowners for the medical malpractice of onboard doctors and nurses.
It has routinely been the case, since the Fifth Circuit decision in Barbetta v S/S Bermuda Star 1988 (Barbetta), that cruise lines cannot be held vicariously liable for the medical malpractice of the shipboard medical team. However all this changed on 10 November 2014 when, in the case of Patricia Franza v RCCL (Franza), the Eleventh Circuit Court of Appeal reversed the District Court's order which was to dismiss the plaintiff's allegations of actual and apparent agency against Royal Caribbean for the negligence of its onboard medical providers. The basis of the District Courts decision at first instance was that Barbetta determined that shipowners cannot be held vicariously liable for the negligence of the onboard medical team.
Whilst other circuits, including the Second, Fifth and Ninth have refused to apply vicarious liability to shipowners in the medical context, the Eleventh Circuit departed from this trend. Neither the Supreme Court nor the Eleventh Circuit had ever previously decided whether a passenger may pursue a claim against a shipowner in these circumstances. For this reason the Eleventh Circuit had no precedent to follow and noted that for many years the Supreme Court and all of the Federal Circuits had applied agency rules across many varied maritime cases. Therefore Franza’s requests to be able to proceed on the basis of actual and apparent agency claims against the shipowner were described by the court as being quite modest by comparison.
In the Franza case the court held that the complaint did establish an agency relationship because (1) it was acknowledged that the medical staff acted on the cruise lines behalf and (2) that these medical personnel accepted the undertaking to do so. In addition to this the medical staff were paid by the owner and the medical facility was created and owned by the cruise line who marketed it and described it in their advertising as their medical centres. The cruise line also provided medical staff with uniforms with the cruise lines name and logo, and represented to immigration authorities that the medical staff were members of the ship’s crew.
The court emphasised that allegations of vicarious liability raised fact bound questions and, if a claimant could show sufficient evidence of an agency relationship then the claim must be allowed to proceed, and any motion to dismiss should be denied. In Franza the court decided that the plaintiff had established that an agency relationship might exist.
The logic behind Barbetta has been that a shipowner does not have the skill or expertise to interfere in the patient/doctor relationship and cannot control the actions of the medical team. That is for an employer to be vicariously liable for the acts or omissions of an employee the employer must have the requisite degree of control over the employee’s actions before the employer can be responsible – as a so called respondeat superior - for the employees negligence. Barbetta held that a shipowner can have no such control over the ship’s medical staff.
However, for a number of reasons the Eleventh Circuit disagreed:
- If there was no such control virtually every professional expected to exercise independent judgement would have to be deemed an independent contractor;
- While a shipowner might not have influence over the doctor/patient relationship a shipowner can exert influence through hiring criteria, training, formal practice guidelines, hierarchical supervision structures, and disciplinary measures; and
- While at sea a passenger has little choice but to submit to onboard care.
The decision in Franza means that if a claimant can show a basis for their allegations of actual or apparent agency then they may be able to pursue the cruise line directly for damages in relation to allegations of medical malpractice. Factors such as the promotion of medical staff through the cruise lines brochures/internet, direct billing by the cruise line to passenger for medical costs, and whether the medical staff are held out to be members of the crew, and/or wear uniforms with the cruise lines name and logo will be relevant to the existence of any agency relationship between the medical practitioners and cruise line.
The filing of a petition for en banc review of this decision is likely and will be reported in due course. In the meantime cruise operators, subject to the jurisdiction of the Eleventh Circuit, may be vicariously exposed to medical negligence claims unless any such medical personnel onboard are independent contractors and are not held out to be, or cannot be perceived to be, employed as agents of the cruise line.
