268 F.3d 486 (7th Cir. 2001), 00-3753, Greenwell v Aztar IN Gaming Corp.

Docket Nº:00-3753, 00-3879
Citation:268 F.3d 486
Party Name:Janet Greenwell, Plaintiff, Cross-Appellant, v. Aztar Indiana Gaming Corporation, doing business as Aztar Casino, Defendant, Third-Party Plaintiff/Appellant, Cross-Appellant, v. Matthew B. Kern and Gregory J. Loomis, Third-Party Defendants/Appellees.
Case Date:October 04, 2001
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 486

268 F.3d 486 (7th Cir. 2001)

Janet Greenwell, Plaintiff, Cross-Appellant,

v.

Aztar Indiana Gaming Corporation, doing business as Aztar Casino, Defendant, Third-Party Plaintiff/Appellant, Cross-Appellant,

v.

Matthew B. Kern and Gregory J. Loomis, Third-Party Defendants/Appellees.

Nos. 00-3753, 00-3879

In the United States Court of Appeals, For the Seventh Circuit

October 4, 2001

Argued June 6, 2001

Appeals from the United States District Court for the Southern District of Indiana, Evansville Division. No. 98 C 211--Richard L. Young, Judge.

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Before Fairchild, Bauer, and Posner, Circuit Judges.

Posner, Circuit Judge.

We have a three- cornered dispute that raises a tangle of jurisdictional and procedural issues. The plaintiff, Greenwell, suffered back pain while walking in a casino boat on which she was employed by the owner, Aztar. (On the origins and popularity of modern riverboat gambling, see Lori Chapman, "Riverboat Gambling in the Great Lakes Region: A Pot of Gold at the End of the Rainbow or Merely 'Fool's Gold?,'" 26 U. Toledo L. Rev. 387, 390-91 (1995); Ronald J. Rychlak, "The Introduction of Casino Gambling: Public Policy and the Law," 64 Miss. L.J. 291, 309 (1995).) The boat was afloat on a navigable waterway of the United States in Indiana. Aztar referred Greenwell to two doctors, Kern and Loomis, who operated on her back-- negligently, she claims. Yet her suit, which charges both a work-related injury to her back and medical malpractice and related torts in the treatment of the injury, is not against the doctors but against Aztar. Aztar, however has impleaded the doctors, contending that they are the primary wrongdoers.

Greenwell bases federal jurisdiction primarily on the Jones Act, which applies the principles of the FELA to maritime workers, 46 U.S.C. App. sec. 688(a); Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990); Weibrecht v. Southern Illinois Transfer, Inc., 241 F.3d 875, 877 (7th Cir. 2001); Igneri v. Cie. de Transports Oceaniques, 323 F.2d 257, 266 (2d Cir. 1963), and on the admiralty doctrine of maintenance and cure, which requires a seaman's employer to provide food, lodging, and--what is relevant here-- medical services to a seaman injured while employed on the ship. Lewis v. Lewis & Clark Marine, Inc., 121 S.Ct. 993, 997 (2001); Galveston County Navigation District No. 1 v. Hopson Towing Co., 92 F.3d 353, 357 n. 8 (5th Cir. 1996); Fitzgerald v. A.L. Burbank & Co., 451 F.2d 670, 679 (2d Cir. 1971). The seaman is unlikely to have an alternative source of maintenance and cure when at sea; the doctrine thus formalizes and makes mandatory what, in its absence, would probably be a contractual undertaking by the employer. Cf. Aguilar v. Standard Oil Co., 318 U.S. 724, 730 (1943); Silmon v. Can Do II, Inc., 89 F.3d 240, 242 (5th Cir. 1996). The duty is nonwaivable, perhaps out of fear of duress against seamen who are injured, or fall sick, far from land, and so are at the mercy of their employer.

Had Greenwell's back pain been caused by an injury sustained at work, as she originally charged, and had the malpractice in treating her been committed by a doctor employed by Aztar, her employer, Aztar would have been liable in accordance with standard principles of respondeat superior. It would have been liable under both the Jones Act and the doctrine of maintenance and cure, because the malpractice would have been committed by a fellow employee acting within the scope of his employment. De Zon v. American President Lines, Ltd., 318 U.S. 660, 665-69

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(1943); Fitzgerald v. A.L. Burbank & Co., supra, 451 F.2d at 679-80. Even if the doctor had been an independent contractor hired by Aztar to discharge the "cure" part of Aztar's duty of maintenance and cure, rather than an employee, Aztar would have been liable, as explained in id. at 680. But after admitting in her deposition that she had been seeing a chiropractor about her back before experiencing back pain on board the ship, she amended her complaint to drop the charge that she had been injured at work and charged instead that Aztar had either directed her to use the incompetent doctors who operated on her or had fraudulently induced or otherwise improperly compelled her to use them. Under standard tort principles (see, e.g., Reed v. Bascon, 530 N.E.2d 417, 420-21 (Ill. 1988)) that are equally applicable to maritime cases, Aztar would be liable, not vicariously but as a negligent actor, if it steered Greenwell to doctors who it knew or should have known were incompetent. Fitzgerald v. A.L. Burbank & Co., supra, 451 F.2d at 679; cf. Barbetta v. S/S Bermuda Star, 848 F.2d 1364, 1369 (5th Cir. 1988).

That's a big "if." Steering a patient to a doctor who commits malpractice is not itself malpractice or otherwise tortious unless the steerer believes or should realize that the doctor is substandard, and that is not claimed. Yet the district judge, instead of dismissing the malpractice claim on the merits and therefore with prejudice, dismissed it without prejudice. He thought it merely premature, because Greenwell hadn't completed the...

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