Employer Liable for Telemedicine’s Negligence; Captain found Grossly Negligent and Liable for Punitive Damages
Adams v. Liberty Mar. Corp., 2020 WL 4380996 (E.D.N.Y. 2020) 2020 U.S. Dist. LEXIS 136278
By: Jacob Larriviere
Francis Adams departed from Texas onboard the Liberty Eagle, a bulk carrier vessel operated by Liberty Maritime in September of 2013. He had underlying conditions of high blood pressure and diabetes; but, after multiple physical examinations, he was deemed fit for duty. However, as the Liberty Eagle approached the Port of Sudan near the beginning of October, Mr. Adams began to experience swelling in his legs and feet. On October 3rd, Mr. Adams made his condition known to his supervisor Captain John McAuliffe, who in turn notified Future Care – the telemedicine service provider available to the crew of the Liberty Eagle. Dr. Bourgeois, a Future Care physician, took on Mr. Adams’s case and initially diagnosed him with venous stasis disease. Dr. Bourgeois, however, had a differential diagnosis – if Mr. Adams was experiencing respiratory problems, this symptom, combined with the swelling and preexisting hypertension, could indicate congestive heart failure (CHF). Dr. Bourgeois kept this theory to himself, asking only for the Captain to monitor Mr. Adams’s breathing.
A second report was made to Future Care on October 16th concerning Mr. Adams’s new rib cage pain. Dr. Bourgeois offered advice based on this report; however, he did not review this second report in conjunction with the first from October 3rd – leading to an incomplete diagnosis. Further, the evidence suggested that Mr. Adams continued to experience pain after October 16th. Mr. Adams pleaded with superior officers to see a doctor in person, but these requests were denied by the Captain.
Finally, on October 30th, Mr. Adams told Captain McAuliffe that he was sick and could not breathe. The Captain contacted Future Care; and a physician immediately diagnosed Mr. Adams with congestive heart failure (CHF) and recommend that he be sent ashore for treatment. Adams was examined onshore and was diagnosed with “CHF, complicated with a fast AF [afibulation], with a possible chest infection.” It was also determined that CHF “was most likely the first event in the progress of Adams’s most recent symptoms.”
Mr. Adams filed suit against Liberty Maritime Corporation, Captain John McAuliffe, and the telemedicine provider, Future Care, Inc. Of the many claims brought by the Plaintiff (negligence under the Jones Act against Liberty, the employer, unseaworthiness, maintenance and cure and maritime negligence claims against the captain and the telemedicine provider, as well as punitive damages) several survived summary judgment.
The District Court first addressed the plaintiff’s claim for maintenance and cure against Liberty Maritime Corporation (Liberty). Adams sought recovery for his medical costs, food and lodging, and punitive damages with attorney fees based on Liberty’s failure to pay him maintenance and cure. The court stated in response that the plaintiff could not “seek recovery for the whole sum of his food, lodging, and medical expenses, but is limited to seeking recovery only for the amounts for which he paid or remains obligated .” While the petitioner asserted that he had to sell certain personal items to handle expenses after his daily stipend was terminated, he did not offer specifics on how much he was owed. The District Court also denied plaintiff punitive damages because he had provided no evidence that Liberty was “willful or wanton” in failing to provide maintenance and cure payments. The court found that the plaintiff was only entitled to the $6,771.85 he personally paid up to his maximum medical improvement date (MMI).
Adams also claimed that the Liberty Eagle was unseaworthy due to Liberty’s failure to train her officers in proper medical reporting procedure. However, the District Court never had to decide on whether such an issue could lead to unseaworthiness, because the plaintiff had failed to establish that this issue was present. There was evidence in the record to demonstrate both that the officers onboard the Liberty Eagle were aware of Future Care’s Services, and the that the officers knew how to utilize them.
The plaintiff alleged that Liberty was negligent due to both its selection of Future Care as its medical services provider, and due to the alleged malpractice of Dr. Bourgeois. Regarding Future Care, the court noted that there was little to indicate that Liberty was negligent in its selection. Future Care’s purpose was to provide care to the patient until that patient was able to be observed by a land-based physician. Its medical services were never intended to be comprehensive, nor was the decision to contract with them a cost-saving maneuver – as the plaintiff claimed. On the other hand, the District Court decided that Liberty could be held liable for Dr. Bourgeois’s negligence. After an examination of the information that was available to him, the court found that Dr. Bourgeois should have suspected that the plaintiff was suffering from CHF, and should have tested him for it “with a degree of care and skill of the average qualified practitioner.” Having the plaintiff’s breathing checked by untrained professionals was insufficient. Therefore, because “the negligence of a doctor may be imputed to the shipowner-employer,” Liberty was liable for Dr. Bourgeois’s negligence. The District Court decided that because this negligence exacerbated the consequences of the plaintiff’s CHF, Liberty is liable for the injuries he endured up until his date MMI. Liberty argued that because Dr. Bourgeois “at all relevant times resided, was licensed, and ran his office out of the State of Louisiana,” any claims arising out of his malpractice were barred by Louisiana’s one year statute of limitations on malpractice claims. However, the statute the Defense relied on applies only to shoreside medical care. Dr. Bourgeois’s treatment of the plaintiff occurred exclusively on the Liberty Eagle; therefore, the claims fall under the three-year limitation for maritime tort claims.
Adams also levied a Jones Act negligence claim against Captain McAuliffe. Only a seaman’s employer can be held liable under the Jones Act; however, the vessel’s officers can be found to be negligent in their care for a crew member. Captain McAuliffe, through his failure to property communicate the plaintiff’s symptoms and medical needs to Future Care, likely played a role in his injuries. Therefore, the District Court also found Captain McAuliffe liable for injuries the plaintiff suffered before he reached the point of MMI.
The District Court had to decide the amount the plaintiff would receive in damages for the negligence claims. First, the court found that he was entitled to the $72,150 in lost wages that accrued between the plaintiff’s hospitalization and his point of MMI. Second, the court awarded plaintiff $216,450 in pain and suffering.
The trial judge next had to determine if punitive damages were awarded. The District Court established first that Captain McAuliffe was egregiously negligent in not reporting all of the plaintiff’s symptoms to Future Care and imposed upon him punitive damages in the amount of $98,475 representing the plaintiff’s attorney’s fees.
Finally, the court then had to consider whether Liberty could be held liable for punitive damages based on Captain McAuliffe’s conduct. As the U.S. Court of Appeals established no precedent on the standard to impute gross negligence under maritime law, he relied on Stepski v. M/V NORASIA ALYA ( 2010 U.S. Dist. LEXIS 16602 *, 2010 WL 6501649 (E.D. N.Y. 2010)[1]. He found that Liberty and McAuliffe satisfied the second basis for liability:“that an agent acting in a managerial capacity within the scope of his employment acted egregiously and that the principal shares blame for the wrongdoing.” Captain McAuliffe’s duties, according to his own testimony, included providing medical care for his crew – thus satisfying the requirement to egregiously act within the scope of employment. Liberty was also found to have shared in the wrongdoing due to its “distressing lack of oversight.” Captain McAuliffe had significant amounts of discretion and authority in the operation of the vessel which let him go unchecked – leading to his gross negligence in the handling of the plaintiff’s medical care. Therefore, liability for punitive damages was imputed to Liberty.
As a final matter, the District Court found that an award of a prejudgment interest was appropriate, as the Defendants had not established any exceptional circumstances to warrant otherwise.
[1] This case went to trial with a jury returned a verdict for the defendant. See: Stepski v. M/V Norasia Alya 2010 U.S. Dist. LEXIS 142733 *, 2010 WL 6501652 (S.D. N.Y. 2010). On appeal, the Second Circuit affirmed the defense verdict. See: Stepski v. M/V Norasia Alya, 427 Fed. Appx. 45 (2d Cir. 2011)
