Flueras v. Cruises
| Decision Date | 28 September 2011 |
| Docket Number | No. 3D08–1937.,3D08–1937. |
| Citation | 69 So.3d 1101,2011 A.M.C. 2866 |
| Parties | Ciprian C. FLUERAS, etc., Appellant,v.ROYAL CARIBBEAN CRUISES, LTD., Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Paul B. Feltman, for appellant.Jerry D. Hamilton, Miami, for appellee.Before RAMIREZ, LAGOA and SALTER, JJ.LAGOA, J.
Plaintiff Ciprian C. Flueras (“Mr.Flueras”), individually, and as the personal representative of the Estate of Diana Elena Flueras (“Ms. Flueras” or “Crew Member”), appeals from a final summary judgment entered in favor of defendant Royal Caribbean Cruises, Ltd. (“RCCL” or “Shipowner”) in an action alleging the unseaworthiness of RCCL's vessel, the Explorer of the Seas, arising out of the alleged negligence of the vessel's medical crew. Because genuine issues of material fact exist, we affirm in part and reverse in part.
Ms. Flueras was employed by Image Corp., The Image Group, or Image (collectively, “Image”), not by RCCL, as a photographer on the Explorer of the Seas.1 On October 10, 2005, Ms. Flueras visited the ship's infirmary complaining of back and abdominal pain. A nurse took her vital signs and conducted a preliminary assessment of her condition, which included a pregnancy test. The pregnancy test was positive. The ship's senior physician, Dr. Geoffrey M. Harris, examined Ms. Flueras and diagnosed her as suffering from a “[f]lu-like illness.” Dr. Harris ordered Ms. Flueras to rest and return for follow-up on October 11. When Ms. Flueras returned the next day, she was seen by the ship's junior physician, Dr. Anita Hostetter, who prescribed Tylenol to alleviate muscle pains. On October 12, Ms. Flueras was declared fit for duty.
On October 20, 2005, Ms. Flueras underwent an outpatient abortion procedure performed by Dr. Rupert Peterkin in St. Thomas, Virgin Islands. A letter of the same date from Dr. Peterkin to the “Ship's Doctor” states that Dr. Peterkin informed Ms. Flueras that the amount of tissue removed during the procedure was inconsistent with her gestational age and that she should submit to further testing to rule out an ectopic pregnancy.
When Ms. Flueras returned to the ship on October 20, she visited the ship's infirmary complaining of lower abdominal pain. At this time, Ms. Flueras's vital signs were normal. She was attended by Dr. Harris, who noted she had undergone a termination procedure earlier that day and diagnosed her pain as post-operative. Dr. Harris prescribed Diclofenac, a painkiller, and ordered Ms. Flueras to return on October 22.
Ms. Flueras returned to the ship's infirmary on October 21, complaining of pain. The nurse on duty consulted Dr. Harris over the phone and gave Ms. Flueras Ketorolac, an intramuscular pain medication, and ibuprofen pursuant to Dr. Harris's orders. The nurse instructed Ms. Flueras to return to the infirmary the next morning.
At 9:30 a.m. on October 22, Ms. Flueras returned for follow-up. Her vital signs were normal and Dr. Harris noted that her condition appeared to be improving. Upon examination, Dr. Harris found that Ms. Flueras's abdomen was soft and bowel sounds were normal. Ms. Flueras continued to have lower abdominal pain and tenderness, especially on her right side, which Dr. Harris believed was in keeping with the termination procedure.2 Dr. Harris again diagnosed her pain as post-surgical and ordered her to rest and return for follow-up the next day.
Between 11:00 and 11:15 a.m. on October 22, Ms. Flueras called her boyfriend, Davanathan Padmanaabhan, who was employed on the same vessel, and complained of pain and difficulty breathing. Mr. Padmanaabhan went to Ms. Flueras's cabin, where she told him she needed medical attention. Mr. Padmanaabhan testified that he immediately contacted the ship's medical staff, who arrived with a wheelchair to bring Ms. Flueras to the infirmary.3
Ms. Flueras arrived at the infirmary at 12:30 p.m., in extremis, complaining of severe abdominal pain. She was attended by Dr. Harris, who noted that her blood pressure was unobtainable, her skin and conjunctiva were pale, and her lower abdomen was very tender.4 Dr. Harris observed that Ms. Flueras's condition was much deteriorated since he had examined her that morning: her pain was considerably worse and the bowel sounds that were present earlier were now absent. Dr. Harris diagnosed Ms. Flueras as suffering from a “catastrophic intraabdominal bleed” following a dilation and curettage abortion, and concluded that she needed surgical consultation immediately. The medical staff summoned an ambulance one minute after Ms. Flueras arrived.5
The entire medical staff of the vessel (three nurses and two doctors) attended Ms. Flueras while waiting for the ambulance to arrive. Ms. Flueras was administered pain medication and intravenous saline and Hetastarch, a compound that operates as “a blood substitute” by expanding the volume of plasma in the patient's blood.
An ambulance manned by paramedics transported Ms. Flueras to Princess Margaret Hospital in Nassau, the hospital RCCL generally sends its crew for treatment. 6 Dr. Harris prepared a referral form to be delivered to the shoreside physician. The referral form read:
Had a therapeutic abortion 2 days ago in St Thomas. Sudden onset of pain at 11:30 today, with anemia and shortness of breath. Probable bleed/infection. In distress, please assess immediately.Dr. Harris briefed the paramedics concerning Ms. Flueras's condition and treatment. Dr. Harris did not contact the shoreside physician or other hospital personnel prior to Ms. Flueras's arrival at the hospital; he believed the hospital had been notified by a paramedic or through the port agent. Dr. Harris ordered Nurse Ulla Bjorn to accompany Ms. Flueras in the ambulance to the hospital and to remain at the hospital until the vessel was scheduled to set sail several hours later. Nurse Bjorn was familiar with Ms. Flueras's condition and was involved in her care and treatment. The ship's deck log indicates that Ms. Flueras was “landed” at either 1:13 p.m. or 1:16 p.m. 7 Approximately forty-five minutes elapsed between the time Ms. Flueras arrived at the infirmary and the time she left the ship via ambulance.
When Nurse Bjorn returned to the ship, she gave a report concerning Ms. Flueras's condition.8 After the ship left Nassau, Dr. Harris received a letter from the port agent indicating that Ms. Flueras had a ruptured ectopic pregnancy and intra-abdominal bleeding. Ms. Flueras died at the shoreside hospital on October 24, 2005. The primary cause of death was septic shock and a ruptured ectopic pregnancy.
Mr. Flueras filed an action for unseaworthiness, alleging that RCCL's vessel was unseaworthy because: (a) the vessel was unsafe and unfit as a consequence of RCCL's conduct; (b) the vessel was manned by a medical crew that was not properly trained, instructed or supervised; (c) the vessel's medical crew was unfit; (d) the vessel lacked adequate manpower for the tasks being performed; and (e) “[o]perational negligence existed in defendant's inadequate medical care provided to Ms. Flueras; incompetent medical care provided to Ms. Flueras, and unfit medical crew caring for Ms. Flueras.” Subsequently, RCCL moved for summary judgment on the ground that Dr. Harris's negligent conduct could not render the vessel unseaworthy because Mr. Flueras failed to put Dr. Harris's competence at issue. In response, Mr. Flueras argued that the crew members' conduct and incompetency, as well as the absence of or failure to follow shipboard policies and procedures rendered RCCL's vessel unseaworthy. Mr. Flueras also argued that the necessity for additional discovery precluded the entry of summary judgment.9 The trial court heard the motion on October 18, 2007, reserved ruling, and ordered the parties to submit supplemental memoranda of law. The trial court subsequently granted RCCL's motion for summary judgment and specifically found as follows:
The Court notes that the isolated negligent act of an individual crew member or employee does not render the ship unseaworthy. See, e.g., Usner v. Luckenbach Overseas, [Corp.], 400 U.S. 494, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971). But see Olsen v. American Steamship Co., 176 F.3d 891 (6th Cir.1999).This appeal ensued.
On appeal, Mr. Flueras argues that the entry of final summary judgment was erroneous as the conduct of the vessel's medical staff, including Dr. Harris's failure to properly diagnose Ms. Flueras's ectopic pregnancy, during the three days following her shoreside abortion procedure constituted a “congeries of negligent acts” that rendered RCCL's vessel unseaworthy. Mr. Flueras further argues that the vessel was unseaworthy because Dr. Harris and the vessel's medical staff were unfit or incompetent crew members and because policies and procedures pertaining to medical care and emergent situations on board either did not exist or were not followed. Finally, Mr. Flueras argues that the entry of summary judgment was premature because discovery was incomplete.
RCCL limits its response to the narrow issue framed in its motion for summary judgment i.e., Dr. Harris's competence, and argues that the trial court order is properly affirmed because the evidence that Dr. Harris was a fit and competent physician remains unrebutted. Proceeding from this premise, RCCL contends (without conceding) that Dr. Harris's failure to diagnose Ms. Flueras's ectopic pregnancy was an isolated act of medical negligence carried out by an otherwise competent physician, and therefore insufficient to render RCCL's vessel unseaworthy. RCCL further disclaims any duty to create policies or procedures governing medical emergencies on board its vessels, and concludes that discovery pertaining to this issue was irrelevant and would not have affected the trial court's determination.
Summary judgment is proper where “there is no genuine issue as to any material fact” and “the moving party is...
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