Roberson v. S/S AMERICAN BUILDER

• Decision Date: 03 April 1967
• Docket Number: No. 8588.,8588.
• Citation: 265 F. Supp. 794
• Parties: Lloyd ROBERSON, Libelant, v. S/S AMERICAN BUILDER, etc., in rem, and United States Lines Company, in personam, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

265 F. Supp. 794

Lloyd ROBERSON, Libelant, v. S/S AMERICAN BUILDER, etc., in rem, and United States Lines Company, in personam, Respondent.

No. 8588.

United States District Court E. D. Virginia, Norfolk Division.

March 29, 1967.

As Amended April 3, 1967.

Amato, Balbalas, Breit, Cohen, Rutter & Friedman, C. Arthur Rutter, Jr., Norfolk, Va., for libelant.

Vandeventer, Black, Meredith & Martin, Walter B. Martin, Jr., Norfolk, Va., for respondent.

MEMORANDUM

WALTER E. HOFFMAN, Chief Judge.

This action, heard in conjunction with a civil jury case¹ as supplemented by additional evidence, involves claims for maintenance, cure, and damages occasioned by way of attorney's fees in allegedly failing to pay maintenance and provide cure.

The libelant, Lloyd Roberson, was injured on November 16, 1964, while employed as a seaman on board the SS AMERICAN BUILDER which was owned and operated by United States Lines Company. When the ship arrived in Norfolk on December 11, 1964, Roberson reported to the United States Public Health Service Hospital, but did not check in on that day. The hospital records indicate that he was told to check in on that day or the hospital would not be responsible. Roberson, however, claims that it was late when he arrived at the hospital and he was told to come back in the morning. In any event, the hospital records indicate that Roberson did not actually check in until December 15, 1964.

Roberson was treated as an inpatient at the hospital for a thrombophlebitic leg condition resulting from his injury until January 30, 1965. Following his discharge on that date, he continued to receive outpatient treatment at the Public Health Service Hospital until June 15, 1965, according to the hospital records. His treatment, both as an inpatient and outpatient, was described as "conservative" in nature, consisting of bed rest, heat treatments, whirlpool therapy and the like.

On February 9, 1965, admittedly on the advice of his attorney, libelant went to see a private physician, Dr. Berger. He made a number of subsequent visits to Dr. Berger's office and, on May 18, 1965, Dr. Berger recommended that Roberson undergo two operations for relief of his thrombophlebitic condition. Roberson apparently told the examining physician at the Public Health Service Hospital about this recommendation on his next visit, for the Clinical Record for May 25 states: "Has been seeing Dr. Berger, private surgeon, who recommends surgery in next 2 wk." On that particular visit to the Public Health Service Hospital, libelant was examined by the Surgery Clinic and the need for surgery evaluated. Apparently it was decided to continue the same conservative treatment for the time being.

On June 8, 1965, Roberson was again examined at the Surgery Clinic. The Clinical Record for this visit states: "Patient appears distraught because we have not made plans to operate, since Dr. Berger, to whom his lawyer sent him, suggested surgery to have been done by now."

On Roberson's last visit to the Public Health Service Hospital on June 15, 1965, the examining physician, Dr. Flynn, recommended admission to the hospital and a phlebogram and possible surgery to correct Roberson's deep-vein condition. However, Roberson informed Dr. Flynn that he was already scheduled to be operated upon by Dr. Berger three days later at Leigh Memorial Hospital. This operation was in fact conducted, followed by a second operation on July 13, 1965. Dr. Berger's bill for medical services (excluding charges for attorney's conferences and testifying in court) was $550.00, and Leigh Memorial Hospital's bill was $1074.50.

The evidence indicates that there was a conflict of medical opinion as to whether Roberson should be operated on at once, or whether "conservative treatment" should be continued with a possible operation at a later time. Dr. Berger favored the former, whereas Dr. Flynn, the Public Health Service physician, preferred the latter approach.² There is also evidence in the record that the Public Health Service Hospital could have performed the type of surgery which Dr. Berger recommended for Roberson and thereafter performed same.

Respondent paid maintenance to libelant at the contract rate of $8.00 per day until June 18, 1965, the date that Dr. Berger performed his first operation on Roberson. Neither maintenance nor cure has been paid since that date. Dr. Berger testified that, in his opinion, Roberson reached maximum cure around March 1, 1966. Libelant in the present suit is seeking (1) maintenance from July 23, 1965 (the date he left Leigh Memorial Hospital) to March 1, 1966, at the rate of $8.00 per day, with interest; (2) cure in the amount of the private hospital bill and Dr. Berger's fee; (3) attorney's fees and costs (but no other damages) for respondent's refusal to pay maintenance and cure.

The legal issues may be stated as:

(1) Is libelant entitled to maintenance and cure after he apparently became dissatisfied with the Public Health Service Hospital's treatment and sought the services of a private physician?

(2) Is respondent liable for libelant's attorney fees and costs for refusing to pay maintenance and cure under the circumstances here presented?

The general rule of law relating to cure, as applied to the present situation, is stated in Gilmore and Black, Law of Admiralty, pp. 266, 267, as follows:

"The seaman does not have a free hand in choosing his own physician and deciding on his own treatment. The United States Public Health Service maintains Marine Hospitals at which seamen may receive low cost or free care and treatment. An ill or injured seaman who has been given a `hospital ticket' by the master and provided with transportation to the nearest Marine Hospital will usually be held to have acted at his own risk and expense if he either refuses to enter the Marine Hospital and to follow the advice of the Public Health Service physicians or if he consults private physicians or enters another hospital.

"Nevertheless, if the judge concludes that the facilities or treatment afforded the seaman are inadequate, he may allow recovery for expenses incurred outside the Public Health Service system or even order the seaman removed at the shipowner's expense to a place where adequate treatment is available."

There is nothing in this record to indicate that the facilities or treatment afforded Roberson were inadequate. There was merely an honest difference of opinion on a difficult medical decision. Accordingly, if Roberson wanted to hold the shipowner liable for cure, he was obliged to follow the advice of the Public Health Service physicians.

The same general rule with respect to the seaman's right to select his own physician and hospital is contained in Norris, The Law of Seamen, 2 Ed. § 594, p. 685, as follows:

"Unless there are exceptional circumstances (such as mental incapacity), the better rule would appear to be against an election of medical treatment by the seaman in the absence of a definite offer by his employer. The fact that United States Public Health Service Hospitals throughout the country are open to seamen for medical treatment is so well known among them that it should preclude the argument that seafarers may be ignorant of their right to free hospitalization and medical care.

"Refusal by a seaman to avail himself of Public Health Service hospital facilities includes not only outright rejection of proffered aid, but also undue neglect to seek medical treatment and resort to the services of private physicians and private hospital care when Public Health Service hospitalization is obtainable."

It is sufficient to state that there were no "exceptional circumstances" here presented. Once again, it was merely a difference of opinion between reputable physicians.

In Kossick v. United Fruit Co., (1961) 365 U.S. 731, 737, 81 S.Ct. 886, 891, 6 L. Ed.2d 56, an "exceptional circumstance" was noted as follows:

"Presumably if a seaman refuses to enter a public hospital or, having entered, if he leaves to undergo treatment elsewhere, he may recover the cost of such other treatment upon proof that `proper and adequate' cure was not available at such hospital."

Roberson's reliance upon Nunes v. Farrell Lines, Inc., (D.C.Mass., 1955) 129 F.Supp. 147, is misplaced. In that case the Marine Hospital neither offered nor recommended the necessary treatment. In the case at bar, the Marine Hospital stood ready, able and willing to perform the operation, but insisted upon a more adequate evaluation before operating. Likewise, in Scott v. Lykes Bros. Steamship Co., (E.D.La., 1957) 152 F.Supp. 104, the seaman was declared by the Marine Hospital as having reached a "static condition", but thereafter improved his condition by reason of private treatment. Apparently the theory in Scott was that "adequate treatment" was not available in the public facility.

"Exceptional circumstances" confronted the Court in Boulieris v. The S.S. Matrozos, (E.D.Va., 1959) 169 F.Supp. 824, where it appeared that an operation was needed and the seaman was in Greece. The custom in Greece was to perform only emergency operations during the heat of the summer months. The court merely held that a deferment of the operation under all the circumstances of the case was not the equivalent of an outright declination which would relieve the shipowner of any further obligation of cure.

In Pitsillos v. The S.S. George, (E.D. Va., 1959) 176 F.Supp. 351, aff'd sub nom. Puerto Seguro Cia. Naviera, S.A. v. Pitsillos, 4 Cir., 279 F.2d 599, this Court referred to Norris, The Law of Seamen, Vol. 2, § 592, p. 224, and pointed out that, where the shipowner provides reasonably competent medical attention, the seaman is not at liberty to increase the liability of the shipowner by seeking additional medical treatment without cause.³

Spanos v. The Lily, (E.D.Va., 1958) 163 F.Supp. 335, aff'd 4 Cir., 261 F.2d 214, is not to the contrary. True, small bills were directed to be...