IV. NEGLIGENCE C. Circumstances of Injury 3. Medical Care - Maritime Lawyer Hawaii
   

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An important victory in the fight for individual rights (as opposed to insurer rights) is the case of Yukumoto and HMSA v. Tawahara. In that case on May 26, 2017, the Hawaii Supreme Court rejected the efforts of a health insurer who tried to convert its insurance coverage into a 'loan agreement' and recover its medical expense payments from Mr. Yukumoto when he had a 3rd party claim - in spite of the fact that he was not being fully compensated for his losses. This insidious insurance practice has been damaging the citizens and members of the Hawaii community for many years. For more info, see the decision here: Yukumoto and HMSA v. Tawahara, Hawaii Sup. Ct. No. SCAP-15-0000460 (May 26, 2017).



 

 

JONES ACT - TABLE OF CONTENTS

The Jones Act

IV. NEGLIGENCE C. Circumstances of Injury 3. Medical Care

304. Generally

Shipowner owes to sick seaman duty to furnish reasonable care, including nursing and hospitalization, and failure to discharge such duty is personal injury for which seaman may maintain action under 46 USCS Appx § 688; should death result from such failure, action lies in his personal representatives. Cortes v Baltimore Insular Line, Inc. (1932) 287 US 367, 77 L Ed 368, 53 S Ct 173, 1933 AMC 9.

Owner of vessel has duty to furnish injured seaman with proper medical attention, and master represents owner with respect to that duty. The C. S. Holmes (1915, CA9 Wash) 220 F 273, later app (CA9 Wash) 237 F 785.

Duty of ship owners to provide proper medical treatment for seamen falling ill or suffering injury in service of ship is duty imposed without fault; such duty is no mere formal obligation and violation of it is actionable under 46 USCS Appx § 688. Fitzgerald v A. L. Burbank & Co. (1971, CA2 NY) 451 F2d 670, 14 ALR Fed 525.

While law imposes on officers of ship duty to exercise reasonable care to furnish such aid as ordinarily prudent persons would under similar circumstances to injured or ill seaman, ship will not be held responsible for error of judgment on part of officers, if their judgment is conscienciously exercised with reference to existing conditions. MacQueen v CG--40527, U. S. Coast Guard (1968, ED Mich) 287 F Supp 778.

Daughter's wrongful death claim under Jones Act (46 USCS Appx § 688) and Death on High Seas Act (46 USCS Appx § 761) is dismissed, where evidence shows no negligence with respect to death of sailor/father where sailor complained of headache, was given aspirin, stated that aspirin helped, retired to quarters, and could not be roused at next watch and was found to be cold, stiff, and with no pulse. Floyd v Lykes Bros. S.S. Co. (1987, ED Pa) 655 F Supp 380.

Where seaman is injured or becomes ill during voyage (not considering misconduct cases), his employer owes him duty to furnish reasonable care, including nursing and hospitalization during voyage and for reasonable time thereafter, and at least until it becomes apparent that injury or illness could not be further benefited by treatment. Premeaux v Socony-Vacuum Oil Co. (1946) 144 Tex 558, 192 SW2d 138.


305. Failure to provide treatment

Failure of captain to apply penicillin to burned seaman, although it was available, and to render first aid treatment although ship passed within mile of first-aid station, constituted negligence on part of defendant. Carr v Standard Oil Co. (1950, CA2 NY) 181 F2d 15, cert den 340 US 821, 95 L Ed 603, 71 S Ct 52.

Seaman whose injuries are aggravated by negligent failure to provide appropriate care on board ship has overlapping causes of action; he can recover full tort damages under either count for negligence under 46 USCS Appx § 688 or count for breach of maritime duty of maintenance and cure. Gaspard v Taylor Diving & Salvage Co. (1981, CA5 La) 649 F2d 372, reh den (CA5 La) 656 F2d 700 and cert den 455 US 907, 71 L Ed 2d 445, 102 S Ct 1252.

Evidence was sufficient to support jury's findings that employer negligently failed to provide adequate medical treatment to seaman and that such negligence was cause of seaman's death, where there was testimony that physician selected by employer should have ordered blood test which would have revealed seaman's diabetes and that ship's officers were negligent in failing to seek additional medical treatment for seaman following his return to ship. De Centeno v Gulf Fleet Crews, Inc. (1986, CA5 La) 798 F2d 138.

Failure of ship to furnish medical attention to injured seaman constitutes negligence for which seaman is entitled to recover. The Badger (1914, DC Va) 218 F 81; The Pennsylvania (1930, DC Or) 1930 AMC 919.

Shipowner was not negligent in not breaking radio silence and requesting doctor's advice against orders not to do so at most critical time of Japanese war. Ludwig v United States (1946, DC Wash) 74 F Supp 29.

Ship officers were not negligent in failing to call doctor for seaman who sustained fall while intoxicated even though he died few hours later of hemorrhage, if there was no evidence of serious injury from fall. Landy v United States (1951, DC Pa) 101 F Supp 486, 1952 AMC 1380, affd (CA3 Pa) 197 F2d 524, 1952 AMC 1389.

Where master was aware that seaman was having heart trouble from time he first complained of chest pain, shipowner was negligent in failing to provide seaman with proper medical treatment at time of his first heart attack and subsequent heart attack, since seaman was allowed to climb stairs, leave ship, and make his way to hospital, all without any assistance. Fair v Mississippi Valley Barge Line Co. (1965, SD Tex) 239 F Supp 158.

Ship's cook who was repeatedly refused shore leave to obtain medical care is entitled to maintenance and cure, and to attorney fees, since captain's refusal to put her ashore was callous, arbitrary and capricious. Owens v Conticarriers & Terminals, Inc. (1984, WD Tenn) 591 F Supp 777.


306. --Providing medical specialist

One way in which shipowner may be negligent in exercising his duty of providing proper medical treatment is in negligent selection of doctor, since ship's master may negligently select general practitioner when specialist is needed and available, in which case shipowner would be liable for seaman's improper treatment even though doctor selected was not personally negligent in his treatment. Central Gulf S.S. Corp. v Sambula (1968, CA5 Tex) 405 F2d 291, 16 ALR Fed 70.

Shipowner was negligent in failing to procure adequate medical attention for seaman, who had eye injured when attacked in port in which ship was docked, where blindness in that eye did not occur as result of initial blows, but only after improper diagnosis of damaged eye and failure to consult ophthalmologist; it was not necessary for plaintiff to prove that blindness would not have occurred if such conduct had been employed. Sambula v Central Gulf S.S. Co. (1967, SD Tex), 268 F Supp 1, 1968 AMC 403, affd (CA5 Tex) 405 F2d 291, 16 ALR Fed 70.


307. --Proper sick room

Where master is presumably aware of seaman's illness and places him in small, poorly ventilated, hot room, although ship's hospital room was available, seaman may recover under 46 USCS Appx § 688. Ugolini v States Marine Lines (1967) 71 Wash 2d 404, 429 P2d 213.


308. Delay in treatment

Failure to call doctor for deceased until 15 hours after arrival of ship in port showed negligence in providing reasonable medical care where leg of deceased was badly swollen and deceased was delirious. Holliday v Pacific Atlantic S.S. Co. (1952, CA3 Del) 197 F2d 610, on remand (DC Del) 117 F Supp 729, affd (CA3 Del) 212 F2d 206 and cert den 345 US 922, 97 L Ed 1354, 73 S Ct 780.

Where hospital discharged seaman on basis that hospital in another port 7 sailing hours away could better handle case of perforated ulcer and ship's departure was delayed for several hours, and captain on arrival in second port failed to call doctor for several hours and seaman died from peritonitis, captain was negligent. Poindexter v Groves (1952, CA2 NY) 197 F2d 915.

Seaman who fell and broke leg on board ship while intoxicated, but who remonstrated with superior when superior attempted to get seaman to hospital, and who was not shown to have suffered any ill effects from delay in hospitalization, is not entitled to recover. Bloomquist v T. J. McCarthy S.S. Co. (1959, CA7 Ill) 263 F2d 590.

Slight injury to seaman's finger did not require landing at some port before ship reached its destination, since it could not be fairly inferred that either seaman or engineer who extracted steel from injured finger anticipated that slight wound would amount to anything serious. Mohamed v United Fruit Co. (1935, DC Mass) 12 F Supp 1000.


309. Lack of knowledge of injury or illness

Captain of ship was not negligent in failing to give ill steward medical care where steward, although breathing heavily, never complained. Potter Title & Trust Co. v Ohio Barge Line, Inc. (1950, CA3 Pa) 184 F2d 432, 1950 AMC 273, cert den 340 US 955, 95 L Ed 689, 71 S Ct 567.

Ship officers were not negligent in failing to call doctor for seaman who sustained fall while intoxicated even though he died few hours later of hemorrhage, if there was no evidence of serious injury from fall. Landy v United States (1951, DC Pa) 101 F Supp 486, 1952 AMC 1380, affd (CA3 Pa) 197 F2d 524, 1952 AMC 1389.


310. Seaman's refusal of treatment

Shipowner will not be held liable under 46 USCS Appx § 688 where master informed first mate that he had been struck by steering wheel and retired to his cabin where he was found dead, since first mate had repeatedly asked master as to whether he desired medical assistance and each occasion master declined and but for master's refusal of medical assistance, first mate would have taken vessel to nearby port. Bourg v J. Ray McDermott & Co. (1954, La App, Orleans) 70 So 2d 225.

Where medical assistance was given in hospital, and seaman left before he was cured, there was no negligence under 46 USCS Appx § 688. Bennett v American W. A. Line (1933, NY) 1933 AMC 419.


311. Negligence of ship's doctor

Shipowner is liable in damages for harm suffered by seaman as result of any negligence on part of ship's doctor, although it exercises due care in selection of competent physician. De Zon v American President Lines, Ltd. (1943) 318 US 660, 87 L Ed 1065, 63 S Ct 814, 1943 AMC 483, reh den 319 US 780, 87 L Ed 1725, 63 S Ct 1025.

46 USCS Appx § 688 renders shipowner liable for malpractice on part of ship's doctor in treating injured seaman although owner exercised reasonable care in employment of doctor. De Zon v American President Lines, Ltd. (1943) 318 US 660, 87 L Ed 1065, 63 S Ct 814, reh den 319 US 780, 87 L Ed 1725, 63 S Ct 1025.

46 USCS Appx § 688 renders shipowner liable for malpractice on part of ship's doctor in treating injured seaman although owner exercised reasonable care in employment of doctor; but no sufficient proof of negligence to warrant submission to jury of issue of negligence is presented in action under 46 USCS Appx § 688 by seaman to recover for loss of eye, when diagnosis made aboard vessel by doctor was same as that made by doctor on shore. De Zon v American President Lines, Ltd. (1943) 318 US 660, 87 L Ed 1065, 63 S Ct 814, reh den 319 US 780, 87 L Ed 1725, 63 S Ct 1025.

Absent medical testimony as to virulence of disease contracted by seaman, question of whether ship's officer's negligent medical treatment of seaman resulted in his death should not have been submitted to jury. Cortes v Baltimore Insular Line, Inc. (1933, CA2 NY) 66 F2d 526.

Since medical services were provided, under contract, for shipowner as part of its operational activities, negligence of doctor can be imputed to shipowner-employer; even if ship's master took due care in selecting reputable physician to treat seaman, if that physician was negligent, shipowner would still be liable. Fitzgerald v A. L. Burbank & Co. (1971, CA2 NY) 451 F2d 670, 14 ALR Fed 525.


312. Negligence of government hospital or doctor

In action to recover for death of seaman under 46 USCS Appx § 688, question of whether public health service physician, in allegedly negligently certifying decedent as fit to work, was doing so as agent for defendant shipping corporation, was question of fact properly left to jury resolution. Perry v Union Barge Line Corp. (1970, CA3 Pa) 434 F2d 235.


313. Allowing injured or ill seaman to work

To require seaman who is sick or injured to perform work substantially detrimental to his condition is failure to provide medical care and attention to which he is entitled, unless his service is required in face of danger or emergency. The Point Fermin (1934, CA5 Tex) 70 F2d 602, 1934 AMC 662.


314. Treatment for mental condition

Negligence or competence of master was for jury determination where crew member suffering from mental disorder was given hospital ticket by master of vessel and was taken by master's order to bus station, where ticket was purchased to city in which hospital was located. Spellman v American Barge Line Co. (1949, CA3 Pa) 176 F2d 716.

Shipowner was liable, under 46 USCS Appx § 688, and 46 USCS Appx § § 761 et seq., for crew's negligence contributing to death of seamen who disappeared at sea, where master was aware of severe psychiatric condition and suicidal note of seaman and was aware that proper course of conduct was one of constant observation. Bednar v United States Lines, Inc. (1973, ND Ohio) 360 F Supp 1313.


315. Miscellaneous

Waitress, who went to hospital for infected hand 3 days after first aid treatment with razor blade, could not recover against employer on ground of negligence, where evidence failed to show that infected hand was due to treatment on ship. Buford v Cleveland & Buffalo S.S. Co. (1951, CA7 Ill) 192 F2d 196.

Where ill seaman is put aboard another ship for repatriation to his country, and such repatriating vessel is proper means for transportation at time selected, with accomodations on board satisfying seaman's physician, no liability could be imposed upon shipowner who transferred seaman to repatriating vessel for way seaman was treated aboard repatriating vessel since treatment given seaman aboard repatriating vessel was act of independent agent, for which shipowner would not be liable under 46 USCS Appx § 688. Socony-Vacuum Oil Co. v Premeaux (1945, Tex Civ App) 187 SW2d 690, affd in part and revd in part on other grounds 144 Tex 558, 192 SW2d 138.

JONES ACT - TABLE OF CONTENTS


 

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Jones Act maritime law and seaman cases

STATUTE'S LANGUAGE

CASE LAW


I. IN GENERAL

A. General Principles

B. Other Remedies

1. Traditional Maritime
Remedies

2. Federal Law Remedies

3 Remedies by State Law

C. Foreign Involvement

1. In General

2. Place of Injury

3. Flag or Ownership
of Vessel

a. In General

b. Foreign Ownership

c. Foreign Vessels
with American Interests

4. Nationality of Seaman

5. Other Factors



II. PERSONS ABLE
TO RECOVER

A. Seamen

1. General Principles

a. In General

b. Status as Seaman

2. "Vessel in Navigation"

a. In General

b. Status of Vessel

c. Particular Vessels

3. Particular Seamen

B. Representatives of
Seamen



III. EMPLOYMENT

A. In General

B. Particular Entities
as Employers

C. In Course of
Employment



IV. NEGLIGENCE

A. In General

B. Vicarious Liability

1. In General

2 Particular Acts of Crew

C. Circumstances of
Injury

1. Assault

a. In General

b. Assaults Among Crew
& Officers

2. Improper Supervision

a. In General

b. Particular Acts

3. Medical Care

4. Particular Properties
of Vessel & Dock

5. Other Circumstances



V. DEFENSES

A. Seaman's Conduct

1. Comparative
Negligence

2. Assumption of Risk

3. Particular
Circumstances

B. Release

C. Limitations of Actions

1. Statutory Limitations

2. Laches

D. Collateral Estoppel
& Res Judicata

E. Limitation of Liability

F. Other Defenses



VI. DAMAGES

A. In General

B. Damages for Injury

1. Elements of Damages

2 Award Deductions

C. Wrongful Death

1. Elements of Damages

2. Computation of Award



VII. PRACTICE &
PROCEDURE

A. State Court Actions

B. Jurisdiction

1. In General

2. Bases of Jurisdiction

C. Venue

1. In General

2. Bases of Venue

3 Forum Non Conveniens

D. Election of Remedies

1. In General

2. Particular Remedies

E. Institution of Action

F. Pleadings and Motions

1. Complaint

2. Answer

3. Motions

G. Removal and Remand

H. Discovery

I. Jury

1. Right To Jury Trial

2. Submission of Issues

J. Evidence

1. In General

2. Plaintiff's Burden
of Proof

3. Defendant's Burden

4. Admissibility

K. Appeal and Review

L. Settlement

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