Barahona v. KLOSTER CRUISE LTD.

• Decision Date: 30 July 2003
• Docket Number: No. 3D01-3560.,3D01-3560.
• Citation: 851 So.2d 235
• Parties: Hector Jose BARAHONA, Appellant, v. KLOSTER CRUISE LTD. d/b/a Norwegian Cruise Line, Appellee.
• Court: Florida District Court of Appeals

851 So.2d 235

Hector Jose BARAHONA, Appellant, v. KLOSTER CRUISE LTD. d/b/a Norwegian Cruise Line, Appellee.

No. 3D01-3560.

District Court of Appeal of Florida, Third District.

July 30, 2003.

J.H. Zidell, for appellant.

Mase & Gassenheimer, P.A., and Daniel S. Farkas, and Rachel S. Cohen, for appellee.

Before SCHWARTZ, C.J. and GREEN and WELLS, JJ.

GREEN, J.

Hector Jose Barahona, a former seaman, appeals a final summary judgment in favor of Kloster Cruise LTD d/b/a Norwegian Cruise Lines ("Norwegian") in this Jones Act¹ case for failure to treat and failure to provide maintenance and cure. We reverse the final summary judgment on the issue of failure to treat but affirm it on the issue of failure to provide maintenance and cure.

Barahona began working for Norwegian aboard the M/S Seaward in 1991 as a cleaner and assistant linen keeper. In 1995, Barahona sought the attention of the ship's physician for a rash he developed on his arms and head. The physician diagnosed his condition as psoriasis.

Initially, the ship's physician prescribed oral steroids and ointment for Barahona's condition. When Barahona's symptoms failed to improve, the physician referred Barahona to a specialist in Barbados who also prescribed ointment. After the ship returned to Miami, Barahona received further treatment for the psoriasis. Norwegian paid for the cost of his treatment, food, and lodging during this time. When he returned to work, Norwegian provided Barahona with ointment and permitted him to sunbathe each day, as sunbathing was recommended for his condition. Barahona left the M/S Seaward in July of 1995 because he had obtained resident alien status and wanted to spend more time with his family in Miami.

Barahona did not seek additional treatment for his psoriasis until 1998, when he contacted an attorney, who referred him to two physicians, each of whom prescribed ointments and recommended sunbathing. Barahona subsequently filed a six-count complaint against Norwegian under the Jones Act. Barahona claimed that Norwegian's negligence caused his psoriasis, that its failure to provide adequate medical care exacerbated the condition, and that as a result, he suffered numerous and extensive damages.

Norwegian filed a motion for summary judgment on all counts of Barahona's complaint. At the hearing on the same, Barahona agreed to drop all counts against Norwegian except for his failure to treat and failure to provide maintenance and cure claims. In support of its motion on the remaining claims, Norwegian filed the deposition of Dr. Stephen Presser, Barahona's own expert dermatologist. Dr. Presser testified, among other things, that treating psoriasis with oral steroids, as the ship's physician had done for Barahona, is improper because it is possible that the condition can later reoccur once the medication is stopped. Dr. Presser stated, however, that he could not say, within a reasonable degree of medical certainty, whether the use of oral steroids in treating Barahona had, in fact, exacerbated his condition. Norwegian argued that Dr. Presser's testimony, based only on medical possibility, was inadequate to overcome its motion for summary judgement. The trial court granted summary judgment for Norwegian on both counts, finding that there was no evidence of negligence by Norwegian's shipboard or shoreside physicians that resulted in injury to Barahona, and that Barahona had reached maximum medical improvement for his condition.

On this appeal, Barahona first argues that the trial court incorrectly granted summary judgement for Norwegian on the issue of failure to treat. Barahona claims that Dr. Presser's deposition testimony that the shipboard physician's treatment of Barahona's psoriasis with oral steroids possibly exacerbated his condition, created an issue of fact for a jury.

Norwegian responds that since Dr. Presser's testimony was based only on medical possibility, not probability, it failed to establish proximate causation for this medical negligence claim. Norwegian argues that a Jones Act plaintiff must present evidence that there is more than a mere possibility that a causal relationship exists between the defendant's wrongdoing and the injury. We disagree.

The United States Supreme Court addressed this issue in the Jones Act case of Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107, 80 S.Ct. 173, 4 L.Ed.2d 142 (1959). In Sentilles, the plaintiff claimed that an accident aboard the defendant's vessel activated or aggravated a previously latent tubercular condition. One specialist opined that acute dissemination of the tuberculosis might be a consequence of the accident. Id. at 109, 80 S.Ct. 173. Another treating specialist opined that the trauma and plaintiff's pre-existing diabetes was the most likely cause of the aggravation of the tuberculosis, although he could not state which of the two was more likely responsible in this instance. Id. Still another medical expert, who had not personally examined the plaintiff, opined that the accident probably aggravated his condition, though he could not state definitively. Id.

The jury returned its verdict in favor of the plaintiff. The Fifth Circuit Court of Appeal reversed the final judgment based upon the defendant's claim that the medical evidence on the causation issue was insufficient where it was based upon mere possibility. The Supreme Court granted certiorari and disagreed,...