One of the more exciting areas of travel law [See Travel Law, Law Journal Press (2014) and Litigating International Torts in U.S. Courts, Thomson Reuters West (2014) and travel law articles at www.nycourts.gov/courts/9jd/taxcertatd.shtml] involves assigning responsibility for the injuries sustained by tourists that arise from the actions or inactions of airline, hotel and health club employees and cruise ship medical staff after a tourist is injured, becomes ill or sustains a heart attack or other traumatic event. This article will explore the liability of travel suppliers and tour operators that provide immediate post-accident medical care either directly or by selecting or recommending a course of action such as visiting a local medical clinic.
From The Minimum To The Catastrophic
What should be done to assist the injured or seriously ill tourist and by whom? Is there a duty to assist and, if not, should assistance be given nonetheless. Such “assistance” runs the spectrum from the very minimum and seemingly inconsequential [see Stobbe, CDC: Norovirus Caused Royal Caribbean Cruise Ship Outbreak (AP) 1/31/2014 (“passengers…endur[ed] days of vomiting, pain, fatigue and diarrhea…Passengers will be prevented from serving themselves at buffets to prevent the spread of any illness”) to the catastrophic involving involuntary medical disembarkation in a foreign country with uncertain standards of medical care [see Wajnstat v. Oceania Cruises, Inc. (cruise passenger diagnosed by ship’s doctor as having bleeding hemorrhoids; passenger medically disembarked in Ukraine and transported to a medical facility wherein more than half of his colon was removed; although passenger alleged substandard medical care in Ukraine, the Court dismissed claim against cruise line for failing to investigate competency of land based medical providers) and Morris v. Princess Cruises, Inc. (sick passenger removed from ship and taken to nursing home in Bombay, India where she was kept in filthy conditions (“plaintiff testified (that) [t]here was half an inch of urine on the floor, flies and roaches were everywhere. There was no medical equipment of any kind there”) for six hours and transferred her to a nearby hospital only after being forced to pay $1,200 to leave the nursing home; no liability for cruise line) and misdiagnosing diseases (see Gianocostas v. RIU Hotels, S.A. (insulin-dependent diabetic vacations at Dominican Republic hotel where she “became ill and vomited periodically through the night (and was misdiagnosed as having a common stomach ailment by a local doctor that) did not appear to understand the words ‘diabetic’ or ‘diabetes’”. The stricken guest was eventually taken to a local hospital which “according to [the patient’s mother] was filthy and the medical equipment antiquated. Hospital personnel were unresponsive to her inquiries …[The patient] was [then] transported to a hospital in Miami where she died one month later as a result of an acute diabetic ketoacidotic coma”].
Automated External Defibrillators
Tourist heart attacks are quite common but effective assistance may depend upon the availability of an Automated External Defibrillator (AED) and the presence of personnel trained in its use as well as access to oxygen and even the availability of aspirin.
AEDs And Airlines
U.S. airlines are required to carry AEDs and flight attendants trained in their use [14 C.F.R. § 121.803]. A failure to use an AED when available [see Cardoza v. Spirit Airlines, Inc. (failure of flight attendants to use an AED to revive a passenger who had collapsed though requested by nurse to do so and failure to divert flight to closest airport may be “accidents” under Montreal Convention); Siddiq v. Saudi Arabian Airlines Corp. (“While a passenger’s heart attack is not an “accident”…(an) air carrier’s response to a passenger’s heart attack may constitute an ‘accident’ if it is sufficiently unexpected or unusual”)], or have filled oxygen tanks [see Tandon v. United Air Lines (failure to provide adequate oxygen to heart attack victim during flight); Hipolito v. Northwest Airlines, Inc. (passenger with chronic obstructive pulmonary disease provided with empty oxygen bottle during flight)] or divert a flight to the nearest airport [see Fulop v. Malev Hungarian Airlines (passenger suffered heart attack and claims negligence in not diverting flight); Cardoza, supra] may lead to liability for an air carrier.
AEDs And Hotels
Hotels may [see Nam Soon Jeon v. 445 Seaside, Inc., (guest drowned in pool in Hawaiian hotel which had no AEDs but acquired them after another guest drowned; hotel may be required to have lifeguard and AED on site depending upon circumstances) or may not be required at common law to have AEDs available [see De La Flor v. The Ritz-Carlton Hotel Company (no duty in Florida to have AEDs, aspirin or oxygen available notwithstanding that the “Ritz-Carlton South Beach billed its fitness facility as ‘state-of-the-art’ which (plaintiffs) argue is relevant to determine the scope of the duty owed as it relates to providing and maintaining an AED”); Abramson v. The Ritz-Carlton Hotel Company (hotel “did not have a duty to have oxygen or a defibrillator on the premises or to make the equipment available”). Nonetheless, hotel guests suffering a cardiac event have alleged a delay in calling for emergency aid [see Blinzer v. Marriott International, Inc. (delay in obtaining medical assistance for heart attack victim); Room v. Caribe Hilton Hotel (delay in providing medical assistance)] and failing to provide advertised state of the art medical services and equipment [see Abramson, supra (hotel “not required to provide…all medical care that it could reasonably foresee might be needed by a patron”). In addition, the standard of medical care to be provided may depend on the standards in the country in which the accident takes place [see McDermott v. Travellers Air Service, Inc. (“[N]o evidence was produced at trial relating to the standard of care applicable to a physician in Kilarney and no medical testimony was presented as to whether [the doctor’s] diagnosis and treatment were correct”).
AEDs And Health Clubs
Health clubs and fitness centers may [see Aqilla v. Ultimate Fitness (“genuine issue of material fact as to whether the defendant (health club) breached its duty of care to a business invitee for its failure to own an AED and have staff trained in its use”) or not [see L.A. Fitness International v. Mayer (patron suffers cardiac arrest on stepping machine; “There is no common law or statutory duty that businesses have an AED on the premises”)] be required to have AEDs available on premises. Even if there is a statute such as New York’s General Business Law (GBL) § 627 which requires health clubs to have an AED on premises and personnel trained in using it, the statute may be narrowly interpreted. For example, the Court of Appeals in Miglino v. Bally Total Fitness of Greater New York reversed a lower court decision and found that GBL § 627 does not require health club personnel to actually use an available AED [“such a duty would engender a whole new field of tort litigation, saddling health clubs with new costs and generating uncertainty”].
Ship Board Medical Staff
Although modern cruise ships may provide an infirmary and medical staff to assist passengers in distress there may be an absence of uniform standards [Trial Law § 3.02[g]] for the qualification of medical care professionals [see Doonan v. Carnival Corp. (medical malpractice claim arising from death of passenger due to “choking and suffering from visible respiratory distress…(The ship’s doctor) attempted (CPR) for approximately fifty minutes before pronouncing [passenger dead]. The medical staff did not attempt an emergency tracheotomy at any time during the fifty minute interval which the Plaintiffs allege ‘is standard procedure in the medical profession when a patient is choking or in acute, life threatening respiratory distress”], for the nature and quality of medical equipment or for the cost of medical care [see Morales v. Royal Caribbean Cruises, Ltd (passenger charged substantial sums for on board medical services ($1,960) and while on Prince Rupert Island ($6,500) after being medically disembarked)].
No Vicarious Liability For Malpractice
Of much greater concern to injured or sick passengers, however, is that cruise lines are, typically, not held liable for the medical malpractice committed by their on-board doctors and nurses [see Doonan, supra (“The majority rule…establishes that a cruise line cannot be held vicariously liable for the negligence of its ship’s doctor in the care and treatment of passengers”)]. This is, particularly, disconcerting since injured or sick passengers have little choice but to rely upon the medical personnel provided by the cruise ship. Recently, some Courts have considered new legal theories based on apparent authority and negligent or fraudulent misrepresentations [see Lobegeiger v. Celebrity Cruises, Inc. (‘Plaintiff alleges Celebrity ‘held out’ Dr. Laubscher as an officer of the ship’s crew ‘through his title, his uniform, his living quarters on board the ship and his offices on board the ship’…Plaintiff has sufficiently alleged that Celebrity made manifestations which could cause Plaintiff to believe Dr. Laubscher was an agent of Celebrity”; cause of action for fraudulent misrepresentation stated; apparent agency theory subsequently dismissed); Hill v. Celebrity Cruises, Inc. (misrepresentation that ship would have two doctors but only provided one stated claim for negligent misrepresentation)].
Tour Operators and Camps
Lastly, students or campers may require a heightened standard of supervision and medical care depending upon the circumstances [see Bernstein v. Wysocki (minor camper injured and receives medical care at camp and at local hospital; discussion of forum selection clause in camp contract and to whom it applies); Katz v. United Synagogue of Conservative Judaism (“19 year old high school graduate, fell and injured her knee at a kibbutz in Israel which she was visiting as part of a 10-month ‘gap year’ travel study program (alleges) that defendant negligently supervised her medical care after the accident by refusing to arrange for and/or take her to physical therapy recommended by the examining physical in Israel…Mixed questions of law and act are raised as to whether defendant owed plaintiff a duty to supervise her medical care in the unusual circumstances …here presented”).
[This article may not be reproduced without the permission of Thomas A. Dickerson.]