Maintenance & Cure Jury Instructions and the Reality of Modern Medical Practice
Shipowners find themselves conflicted when a seafarer requests a controversial medical procedure. Agree and risk possible exposure to damages if the procedure results in a bad outcome. Deny and risk the dreaded jury charge: “Ambiguities are resolved in favor of the seafarer.” Tyler Tanner of Hamilton, Miller & Birthisel and Noreen Arralde of Thomas Miller (Americas) explain why it is time to retire that jury instruction.
“The shipowner's liability for maintenance and cure was among ‘the most pervasive’ of all and it was not to be defeated by restrictive distinctions nor ‘narrowly confined.’ When there are ambiguities or doubts, they are resolved in favor of the seaman.” (Vaughan v. Atkinson (1962)). "If leeway is to be given in either direction, all the considerations which brought the liability [for maintenance and cure] into being dictate it should be in the sailor's behalf." (Warren v. US (1951)).
The doctrine of maintenance and cure has been expanded by the courts so it may apply to circumstances which could not have been envisioned by the Supreme Court sixty years ago when it uttered the words “ambiguities or doubts are resolved in favor of the seafarer.” It is time for the courts to recognize that ambiguities regarding maintenance and cure should be resolved in the usual way ambiguities are resolved at trial – by careful consideration of conflicting evidence by the finder of fact without a judicial finger on the scale which clearly favors one side over the other.
Modern Medical Practice and Limits on Maintenance and Cure
1. Palliative Care
After two back surgeries that the shipowner paid for, the seafarer now wants a spinal cord stimulator. Seafarer’s doctor says it will relieve back pain and therefore will improve his overall condition. Shipowner consults a doctor who opines the spinal cord stimulator is not medically indicated and is not likely to relieve pain or improve the seafarer’s overall condition.
This scenario creates a conundrum for shipowner. Although a shipowner is not obligated to provide palliative care, does the claim that the spinal cord stimulator will improve the seafarer’s overall condition create an ambiguity as to whether it is palliative or curative? If so, will the court instruct the jury that ambiguities are to be resolved in favor of the seafarer? Can the shipowner rely on its palliative care defense or does the jury instruction unfairly prejudice shipowner under these circumstances?
2. Maximum Medical Improvement
A seafarer reported an injury to his shoulder and was treated with arthroscopic surgery that the shipowner paid for. Shipowner continued paying maintenance and cure for fourteen months post-surgery, until the seafarer’s doctor found he was at maximum medical improvement, at which time shipowner terminated maintenance and cure. Eleven months later, having heard nothing from the seafarer in the interim, shipowner receives a request to reinstate maintenance and cure and is asked to pay for a second surgery to the shoulder and also surgery to the elbow.
This is another scenario which creates a difficult choice for shipowner. While a shipowner has no obligation to provide maintenance and cure beyond the point when a seafarer has reached maximum medical improvement (MMI), in circumstances such as these, can a shipowner confidently rely on its MMI defense in light of the jury instruction that ambiguities are to be resolved in favor of the seafarer?
3. Incurable Conditions
A seafarer with a congenital incurable kidney disease who did not need dialysis treatment at the time he departed the ship and for whom dialysis is not a cure requests the shipowner pay for dialysis starting months after he debarked. Dialysis is not a cure because the condition is incurable and the seafarer will need dialysis for the rest of his life or until a kidney transplant is done. The disease is most likely to eventually damage a transplanted kidney, so the cycle of dialysis and transplant will continue for his lifetime.
At least one court ordered the shipowner to continue to provide maintenance and cure indefinitely to a seafarer suffering from an incurable kidney disease unrelated to service aboard ship. In that case, the court held that requiring the shipowner to provide dialysis was appropriate since it would stabilize the disease, even though it could not be cured.
This decision contravened well-established precedent that a shipowner’s duty to provide maintenance and cure ends when the seafarer’s condition is cured so far as possible or is recognized as incurable. The decision reflects the dilemma created by advances in medicine that have prolonged the lives of people suffering from incurable diseases. While advances in medicine are laudatory, it is unfair to saddle a shipowner with the obligation to pay for maintenance and cure indefinitely. Modern medical practice has rendered the ambiguities jury instruction unfair and prejudicial.
A Course Correction, perhaps
The Eleventh Circuit Court of Appeals recently signaled a course correction on the maintenance and cure “ambiguities in favor of” jury instruction. In Witbart v. Mandara Spa (Hawaii), LLC, (11th Cir. Sept. 28, 2021), the seafarer argued that Vaughan required courts hearing maintenance and cure cases to construe disputed medical evidence in her favor. The Eleventh Circuit rejected that interpretation, explaining “[t]his is an incorrect reading of the case.” The court clarified:
Vaughan did not state that all ambiguities, or even evidentiary ambiguities, were to be resolved in every seaman’s favor. Such a reading would strip district courts of their ability to make credibility determinations when confronted with conflicting evidence during a bench trial. Indeed, this Court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.
Although Witbart did not involve a jury trial, surely, the same logic holds true with jurors – when presented with conflicting medical evidence, jurors should have the opportunity to judge the witnesses’ credibility.
Unfortunately, jury instructions do not always afford that opportunity. For example, the Fifth Circuit Pattern Jury Instructions for Civil Cases reads, in relevant part, “When there are ambiguities or doubts about a seaman’s right to maintenance and cure, you should resolve those ambiguities or doubts in the seaman’s favor.”
Instructions that require jurors to resolve evidentiary ambiguities regarding the right to maintenance and cure in favor of the seafarer should be scrapped entirely. They have no place in modern jurisprudence and are inconsistent with Vaughan. They open the door to mischief by judges and juries, and in some instances deprive shipowners of the right to scrutinize a claim for maintenance and cure and rely on independent medical experts. If any difference of opinion between medical experts creates an ambiguity that must be resolved in favor of the seafarer, then the jury instruction is unfairly prejudicial to shipowners. Rather, jury instructions should require the trier of fact to weigh conflicting medical evidence and make credibility determinations for themselves.
Trends and Practice Pointers
The “ambiguities in favor of” jury instruction is rooted in the “wards of admiralty” doctrine – a 200-year-old doctrine that admiralty courts now recognize as having limited persuasive value and “only a small role to play in contemporary maritime law.” Dutra Grp. v. Batterton (2019); see also Hon. D. Brock Hornby, Requiem for Harden v. Gordon, 51 J. Mar. L. & Com. 149 (2020) (noting that Batterton signalled the demise of the wards of admiralty doctrine).
The doctrine, in sum, was adopted in large part due to seafarer’s workplace conditions and limited legislative remedies. Seafarers were singled out as a class of workers requiring additional protection, so admiralty judges treated them with special care – they were “wards of the admiralty” – and issues related to seafarer’s remedies, where Congress had not legislated, were often construed liberally in their favor. See Harden v. Gordon (1823). Today, however, courts recognize that seafarers operate in a different world. They are neither isolated nor as dependent on the shipowner as their 19th century counterparts were; substantial legislation has been enacted for their benefit; and admiralty judges have liberally expanded maritime law in their favor.
Notwithstanding the demise of this doctrine, it continues to resonate prominently in legal discourse, often being propelled by plaintiff’s attorneys whenever a policy argument can be made in favor of the seafarer. “In my practice, I do not allow these arguments to go unchallenged,” says Tyler Tanner, Partner at the Miami office of Hamilton, Miller & Birthisel LLP. “If a plaintiff advances the wards of admiralty doctrine in support of any issue, we take these opportunities to educate judges on how little weight this doctrine carries in modern maritime law. Admiralty courts are seeing this, and some even go so far as to correct earlier misinterpretations concerning the scope of the doctrine. The Witbart opinion is an excellent example of that, and I expect this trend will continue.”
The UK Club applauds the efforts of defense counsel to educate admiralty courts as to just how much of an anachronism the wards of admiralty doctrine is and to update jury instructions to reflect the reality of modern seafaring.
The UK Club would like to offer sincere thanks to Tyler Tanner who is a Partner in the Miami office of Hamilton, Miller & Birthisel, LLP for co-authoring this article. He is Board Certified in Admiralty & Maritime Law. He is also an Adjunct Professor at Florida International University College of Law, where he teaches Admiralty Law.
Senior Claims Director
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