By way of background, prior to looking in greater detail at the legal aspects of maritime medical practice, a brief historical review will help to show the basis for the legal framework of today’s medical practice.
”If a physician carries out surgery with a bronze lancet on a man gravely wounded and causes his death or if the physician cuts open an eye boil with a bronze lancet and destroys his eye his fingers will be cut”
This article 218 of in a Babylonian legal code, although dissuasive because of its content, is, without a doubt, the first text to introduce the concept of professional liability for fault in the medical field and, consequently, the need for sanctions to recompense the harm suffered.
When reviewing this notion 39 centuries later, it is clear that things have evolved, especially in terms of sanctions, yet, the principle of medical fault causing prejudice to the patient or seafarer, and the need for recompense can be found in many national legislations relating to medical practice.
In the maritime field, nowadays, legal aspects of medical practice are many and complex. They are all the more numerous and complex because they vary depending on the legislative and health systems of the many countries where maritime medicine is practiced.
In addition, maritime medicine is such a vast domain that each individual form of medical act or service may be the object of specific national or international legislation. Thus, various aspects of maritime medical practice must be considered when dealing with legal issues. Accordingly, the responsibility of the maritime physician may arise in respect of :
- health care, medical assistance on board, in port or from a distance (through telemedicine)
- compliance with all aspects of medical confidentiality
- determining fitness to work at sea before boarding
- research and medical studies
- certificates, reports, publications,
- relationships among physicians.
Assuming that the maritime physician is in good mental health, he is liable for his actions at the professional level as well as the non-professional level. His decisions, practice, and choices will affect various players, especially the seafarers who he has to take care of.
Two types of practice will give rise to different legal aspects:
- self-employed practice
- practising under a contract with an institution (hospital, maritime emergency centre, maritime company, ship owner, national navy...).
When practising as a self-employed practitioner, the physician’s practice will be almost all his sole responsibility (with the exception of the unforeseen turn of events that we will consider later on), whereas when practising under contract with an institution, the institution that hires him also bears some responsibility essentially through the means it provides to enable the physician to carry out their duties (staff, communication means, medical equipment, medical investigation tools, medical products, management tools...) (2).
In both types of practice, legal issues may concern the damage and discrimination suffered by, or believed to be suffered by, seafarers, passengers, maritime companies and maritime institutions. This damage or discrimination can be physical, moral or financial.
If the maritime physician is confronted by such a legal situation, the damage suffered has to be evaluated as well as whether or not the physician was at fault.. These two actions will be carried out through an enquiry, which has to establish the facts very precisely in order to back up these elements. A judgment will then determine if the prejudice suffered is due to the physician’s acts (3).
In the USA and most Anglo-Saxon countries, the legal regime for maritime medical civil responsibility, is that of fault. Insurance for medical civil responsibility is provided by various entities such as traditional insurance companies, insurance captives, state funds or insurance companies which operate in an open market.
In other countries, such as mainland European countries, the legal regime is also the one of responsibility for fault. Physicians have created mediation tribunals (expert bodies or extra-judicial expert offices which give a ruling on the existence (or not) of medical error, source the expertise needed for the investigation and, depending on the maritime region, may even sometimes fix the amount of damages.
Although mediation has the advantage of being less costly and more rapid than going to the courts, it is however not obligatory and not binding. The parties retain the right to go to the courts if agreement is not reached.
In Scandinavian countries, a system has been adopted which means victims of therapeutic accidents do not have to prove that there was fault. There, all medical professionals must take out insurance to indemnify themselves in this situation. The victim does not have to prove any fault of the professional but merely the probability of a causal link between the medical act and the prejudice suffered (4).
In France, the principal of fault with prejudice, or consequential harm, gives rise to the responsibilities of the maritime physician although the principle of medical (aléa), i.e. unforeseen adverse incidents, has been taken into account, in particular in respect of serious undesirable side effects of medical treatment when the act has been carried out with all necessary precautions being taken (with the aim of benefiting the patient) (5).
The medical risk of unforeseen adverse effects (aléa médical) is a potential risk inherent to all medical activities, public health acts or acts related to medical research. Such risk is identifiable but uncertain and is generally statistically measurable but not individually foreseeable. On the basis of the available scientific data at the date of occurrence, it cannot be managed by any known methods of prevention or precaution. It is independent of any fault of the practitioner. It causes injury, which is not related to the previous state or patients’ pre-existing pathology at the time of the occurrence. It is a fortuitous phenomena normally excluded from the physician’s responsibility.
The medical risk (aléa médical), especially the therapeutic risk of the occurrence of the undesirable serious side-effects from a medical product, causes a prejudice that may lead to compensation, which may be paid by the state, the manufactures of the medical products or through another system of insurance (6).
In terms of system of jurisdiction, depending on the prejudice suffered by seafarers, passengers or maritime institutions, the physician may be responsible for his acts within the framework of civil jurisdiction (financial sanctions), criminal jurisdiction (financial sanctions and the risk of prison) or the jurisdiction of peers and their representative bodies which can prohibit a physician from practising. (7).
These different elements provide the legal framework for maritime medicine where individual situations become the subject of litigation when seafarers, passengers or even maritime institutions consider they have been prejudiced by (as a result of) the acts of a physician.
With respect to treatment and medical assistance (on board or at a distance) the maritime physician must, in particular, watch out for possible diagnosis or treatment errors which could affect the health or prognosis of the sailors who consult him. He is responsible not only for using the most appropriate methods but also for the decisions he may take to manage a health issue on board a vessel or for organising a medical evacuation.
However, the nature of medical assistance at a distance (telemedicine) means the physician must take decisions without the benefit of a clinical examination and either without or with few additional medical tests. In addition, the taking of these decisions may be made harder because of external listeners, given the number of people who may have access to his conversation with the patient or the patient’s care giver during telemedicine.
Telemedicine is a remarkable medical innovation and it is useful when there are no medical facilities on board. Yet, it challenges even the most basic principles of traditional medicine and requires new rules of practice conforming to medical codes of ethics and medical law. These include the medical contract between the physician and the patient, physicians’ responsibility, the respect of medical secrecy and keeping information exchanged confidential. In the case of telemedicine, rights are not well defined yet. Since this is a new practice, to date there is very little jurisprudence. However, general principles of medical law and medical professional conduct rules can be applied. With respect to informing the patient and obtaining his consent, as a principle, telemedicine should not be used without a sailor’s awareness and the sailor ought to be able to choose the doctor that he consults (other than for emergencies).
In addition, the telemedicine network has to function properly with sufficient (technical) protection to ensure that the medical information is transmitted securely.
On the other hand, it can be argued that the seafarer or passenger who has accepted the use of telemedicine has also accepted the risks that go with this health system.
In such circumstances, one needs to check that the seafarer has been sufficiently informed of the risks: if seafarers have knowingly chosen to use the system then they cannot call it into question, if they have not then they may take legal action against medical providers who did not give sufficient information (8, 10-12).
When medical assistance to seafarers is the subject of litigation, medical expertise is often required to determine responsibilities: whether there is a fault, the author of the fault, the harm and the link between the fault and the harm. After seeing the conclusions of the judiciary expertise, the seafarer may either consider taking legal action or renounce their claim.
When several physicians are involved in caring for a patient, each physician is responsible for his own acts. However, in teamwork, and in the absence of a direct binding contract between the seafarer and the physician at fault, the team leader is often responsible for his team members’ faults (13).
In telemedicine, dialogues between physicians must be transcribed, signed, and kept in medical files (archives). These documents are key information when searching for responsibilities in a fault (14).
Regarding the assessment of sailors’ medical fitness to work at sea, seafarers, ship owners or maritime institutions may contest the decision of the maritime physician. The physician is responsible for an assessment that is based on a medical examination. His decision can result in major socio-professional damage if the seafarer is declared unfit to board and is unable to continue his professional activities. On the other hand, ship owners, captains or seafarer’s colleagues may blame the physician for allowing a sailor to board if his health condition worsens at sea, putting the crew at risk. This is especially critical in case of a sailor who holds a post with safety critical duties.
The legal issues surrounding the determination of sailor’s fitness to work at sea are often grounded in regulations which are specific to the country where the medical examination is carried out. Many maritime countries have established statutory lists of health conditions and medical contraindications that limit sailors’ ability to work at sea. In case of litigation, the maritime physician may have to answer for his medical acts to the bodies adjudicating on such litigation in the country. The examining doctor has to show that his decisions or acts are in accordance with current scientific guidelines and bibliographic data, that, prior to taking a decision, they carried out appropriate clinical investigations and are knowledgeable about the patient’s medical file and his occupational duties (15, 16).
In medical research, aside from published study results, the maritime physician is responsible for managing implementing studies and surveillance of undesirable side effects. He must never put seafarer’s health at risk during a study (17).
Any written document such as medical certificates or reports can legally implicate the maritime physician. These documents must be written with great attention to detail: the physician must be identifiable; must be very careful and precise when providing any medical information; he must only write about information that he either observed or has been able to verify; the patient (seafarer or passenger) must also be identifiable on the certificate. The physician must put in writing on the certificate when the document has been handed (in person) to the patient. Pre-dating a certificate, sometimes asked as a favour by the patient (sailor or passenger), must be proscribed since it can be held against the physician. Writing a false certificate or a false report can make the physician criminally responsible and is contrary to the code of ethics for medical practice. As a rule, a written copy of the certificate should be kept in the physician’s medical file (18, 19).
Finally, like any other physician, the maritime physician often practices in partnership with colleagues. Collegial harmony is essential among health professionals in the maritime medical field as it greatly facilitates partnership while caring for seafarers. Whether or not it has a foundation, criticizing a colleague can result in the maritime physician having to face court on charges of slander. Ruling on such actions, which are disciplinary, is often carried out by representatives of medical corporations or peer bodies (7, 17, 20).
In conclusion, one can see that the practice of maritime medicine generates numerous situations where a physician’s responsibility can have legal implications. Today, at the international level, few texts address the general principles for the management of such legal situations. Furthermore, in many countries, private insurance systems protect physicians against malpractice. In these countries, the maritime physician determines which insurance contract he should subscribe to for his protection. Yet, in case of a grave professional fault, the physician faces very serious sanctions and can be deprived of many of his rights.