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Cruise line faces revived lawsuit

Orlando Sentinel

By Catherine Wilson

The Associated Press

Posted August 28 2003

MIAMI -- An appeals court reinstated a medical negligence suit Wednesday against Carnival Cruise Lines in a case that attorneys say has wide implications for passengers who need medical care aboard ships.

The 3rd District Court of Appeal revived a lawsuit by the family of a teenager left infertile when a Carnival ship's doctor misdiagnosed her appendicitis.

"Before, passengers on cruise lines could not sue the shipping company for the malpractice of ship's doctors," said family attorney Charles Lipcon. "This case changes the responsibility of the shipping company."

Carnival attorney Jeffrey Maltzman said: "I strongly disagree with the court's conclusions. Carnival intends to appeal."

The court threw out language in Carnival's tickets rejecting company liability and limiting medical negligence claims to the ship's doctor.

The decision reinstated Carnival as a defendant in a 1998 lawsuit filed by the parents of Elizabeth Carlisle of Ann Arbor, Mich.

They claimed Dr. Mauro Neri diagnosed her abdominal pains as flu, ruled out appendicitis and prescribed antibiotics.

The family left the cruise early and went home. Elizabeth, then 14, was diagnosed with a ruptured appendix, underwent surgery and was left sterile by an infection, the lawsuit said.

The suit claimed Neri was negligent in his treatment and Carnival was negligent for hiring him.

The case has been closely watched as a sign of the court's thinking on the financial exposure of the cruise industry in the city where Carnival, Royal Caribbean and NCL are based.

Family attorney David Pollack said the decision means cruise lines are "going to have to be more responsible for medical care, and they're going to have to be more diligent if a passenger says, 'I think I have a problem.' "

The three-judge panel cited a court ruling from 1891 and rejected a 15-year history of cases favoring cruise companies, saying they were "based upon flawed and outmoded assumptions" about the cruise industry and passenger services.

Carnival argued that it could not be sued because Neri was an independent contractor, but the court said ship's doctors are legal agents of cruise companies.

"It is axiomatic under maritime law that a carrier owes a duty to its passengers to exercise reasonable care," Judge Joseph Nesbitt wrote for the unanimous panel.

"A cruise passenger at sea and in medical distress does not have any meaningful choice but to seek treatment from the ship's doctor."

San Francisco travel attorney Al Anolik, author of a book on travelers' rights, said, the decision was inevitable.

"This attempt to run around and say 'I'm not responsible, don't sue me' is a façade," he said. "It was a façade the court saw through."