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Maritime Update: 5th Circuit Affirms Jones Act Employer Acted Promptly to Provide Medical Care

Bill Schwartz - 

In the case of “Randle v. Crosby Tugs, L.L.C.” decided by the 5th Circuit Court of Appeals on December 19, 2018 and revised on January 7, 2019, they affirmed the lower court decision rendered on summary judgment. In that decision, the Court found the employer had not breached its duty under the Jones Act to provide its crewmember with prompt and adequate medical care.

Crosby Tugs, L.L.C. (“Crosby”), employed Randle as a seaman aboard the M/V DELTA FORCE. On the morning of Randle’s stroke, the vessel was temporarily docked in Amelia, Louisiana. Randle had been unloading a grocery delivery onto the boat when he began to feel fatigued and lightheaded. He retreated to his cabin to rest. Shortly thereafter, a fellow crewmember heard a banging coming from Randle’s cabin. The crewmember discovered Randle incapacitated on the cabin floor and unable to communicate. The crewmember immediately notified the captain, who quickly called 911.

Acadian Ambulance Services (“Acadian”) responded to the call. At the direction of the Louisiana Emergency Response Network (“LERN”), Acadian transported Randle to Teche Regional Medical Center (“TRMC”). Crosby did not instruct Acadian to take Randle to TRMC. Nor did Crosby hire, authorize, or otherwise contract with TRMC to administer medical care to its seamen.

Although the Acadian paramedics suspected that Randle was suffering from a stroke, the TRMC physicians failed to diagnose his condition as such. After performing a CT scan without contrast and consulting a telemedicine physician in New Orleans, the TRMC physicians diagnosed Randle with a brain mass and transferred him to another hospital for further treatment. Randle’s medical expert testified that TRMC’s physicians could have “easily” diagnosed the stroke if they had administered a CT scan with contrast.

Because the TRMC physicians failed to diagnose Randle’s stroke correctly, they did not administer “tissue plasminogen activator,” a medication that could have improved Randle’s post-stroke recovery. To be effective, the medication must be administered within three hours of the stroke. By the time Randle’s stroke was correctly diagnosed, it was too late for the medication to be effective.

Randle was permanently disabled because of the stroke and needs constant custodial care. He brought suit against Crosby, arguing that Crosby negligently failed to provide prompt and adequate medical care; provided an unseaworthy vessel; and failed to provide maintenance-and-cure benefits.  The district court granted Crosby’s motion for partial summary judgment on Randle’s negligence and unseaworthiness claims. The parties settled Randle’s maintenance-and-cure claim prior to this appeal.

On appeal, the Fifth Circuit noted that a Jones Act employer would be held vicariously liable for the negligence of an on-board physician employed by the vessel owner. Similarly, the Jones Act employer would also be vicariously liable for malpractice by an on-shore physician “it chooses to treat its seaman.”; i.e. the standard for vicarious liability for on-shore physicians is “whether the ship was negligent in selecting and relying upon [the physician]”.

As applied here, Crosby had a nondelegable duty to provide adequate medical care to Randle. Crosby would be vicariously liable if it had “delegated performance of the duty” to an agent, and the agent acted negligently in carrying out the duty. But, the Court found no such agency relationship was formed here. Crosby did not manifest authority to TRMC or its physicians, or otherwise express its assent that TRMC act on its behalf. Crosby did not direct the ambulance to go to TRMC, and it is not clear that Crosby had the power to do so. There was no evidence of a relationship between Crosby and TRMC. The Court found Randle had not demonstrated that Crosby, by calling 911, intended TRMC to act as its agent, and affirmed the district court grant of summary judgment on this issue.

Because Crosby did not select TRMC as its agent or otherwise express its assent that TRMC would act on its behalf, there was no agency relationship here. What happened here was Crosby called 911 and the 911 dispatcher sent Acadian to respond to the call. After responding to the call, Acadian called LERN, the state’s emergency response network which instructed Acadian to take Randle to TRMC. There was no evidence Crosby knew how this sequence of events would unfold, much less that it was aware that LERN would direct Acadian to take Randle to TRMC. As a result, TRMC could not be and was not Crosby’s agent.

If you have any questions regarding this maritime matter, please contact Bill Schwartz at (504) 569-2900 or wschwartz@bhbmlaw.com.


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