Textbook of Maritime Medicine

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 the Babylonian 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 a sanction to repair the prejudice 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 repair 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 relevant countries which have a maritime medical activity.

In addition, maritime medicine is such a vast domain that each individual medical act or service may, on its own, be the object of 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 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,

-            relationship among physicians.

Assuming that the maritime physician is in good mental health, he is liable for his acts at the professional level as well as the extra professionnal level.  His decisions, practice, and choices will affect various players, especially seafarers which he has to take care of.

Two types of practice will give rise to different legal aspects:

-            self-employed practice

-            practicing under a contract with an institution (hospital, maritime emergency center, maritime company,  ship owner, national navy...).

When practicing 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 will provide the physician  to carry out his missions (staff, communication means, medical equipement, medical investigation tools,  medical products, management tools...) (6).

In these two different types of practice, legal issues will concern the damage and prejudices suffered by, or believed to be suffered by, seafarers, passengers, maritime companies and maritime institutions.   This damage or prejudice can be physical, moral or financial.

If the maritime physician’s responsibility is engaged in such a legal situation, the prejudice 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 (7).

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 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, facilitate the expertise and, depending on the maritime region, may even sometimes fix the amount of indemnities.

Although mediation has the advantage of being less costly and more rapid that 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 patient insurance.  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 (8).

In France, the principal of fault with prejudice gives rise to responsibility for the maritime physician although  the principle of medical (aléa) unforeseen turn of events has been taken into account, in particular in respect of serious undesirable side effects of a medical act when the act has been carried out with all necessary precautions being taken (with the aim of curing) (9).

The medical risk (aléa médical) is a potential risk inherent to all medical acts, 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 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 with the occurrence of the undesirable serious side-effects of a medical product, causes a prejudice that may be the object of a fund to compensate which may be paid by  the state, the manufactures of the medical products or another system of insurance (10).

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 or its representative bodies which can prohibit a physician from practicing. (11).

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 vital prognostic 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 he must take decisions without the benefit of a clinical examination and 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 code of ethics and medical law:  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 very 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 witout 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 which go with this health system.

In such circumstances, one needs to check that the seafarer has been sufficiently informed of the risks : if he has then he has knowingly chosen to use the system and cannot  call into question the system, if he has not then he may take legal action against medical players for insufficient information (12-15).

When medical assistance to seafarers is subject to litigation, a medical expertise is often required to determine player’s responsibilities, if there is a fault, the author of the fault, the prejudice and the link between the fault and the prejudice.  After seeing the conclusions of the judiciary expertise, the seafarer may consider taking legal action or renounce.

When several physicians are involved in caring for a patient, each physician is responsible for his own acts.  However, in team work, 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 (16).

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 (17).

Regarding the assessment of sailors’ medical fitness to board, seafarers, ship owners or maritime institutions may contest the decision of the maritime physician.  The physician is responsible for his assessment which is based on a medical examination.  His decision can result in major socio-professional prejudice if the seafarer is declared unfit to board and is unable to continue his professional activities.  On the other hand, ship owners, captains, 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 security post.

The legal issues surrounding the determination of sailor’s fitness at sea are often grounded on 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 which limit sailors’ ability to board.  In case of litigation, the maritime physician may have to answer for his medical acts to the bodies ruling such litigations in the country.  He has to show that his decisions or acts are in accordance with current scientific guidelines and bibliographic data, that, prior to taking his decision, he carried out a clinical study and is knowledgeable about the patient’s medical file and his occupational post (18, 19).

In medical research, aside from published study results, the maritime physician is responsible for managing the study implementation and surveillance of undesirable side-effects.  He must never put seafarer’s health at risk with his study (20).

Any written document such as medical certificates or reports can legally implicate the maritime physician.  These documents must be written with great attention: The physician must be identifiable; He must 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, which is sometimes asked as a favor to the patient (sailor or passenger), must be proscribed since it can be held against the physician.   Writing a false certificate or a false report implicates the physician’s criminal responsibility and is contrary to the code of ethics of medical practice.  As a rule, a written copy of the certificate should be kept in the physician’s medical file  (21, 22).

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 it is founded or not, to criticizing a colleague can result in the maritime physician having to face court on slandering charges.  The ruling of these actions, which are disciplinary, is often carried out by representatives of medical corporations or peer bodies (11, 20, 23).

In concluding this chapter, one can see that practicing maritime medicine generates numerous situations where physician’s responsibility can be legally implicated.  Today, at the international level, few texts address the issue of a common management of legal situations.  Furthermore, in many countries, private insurance systems protect physicians against maritime malpractice.  In these countries, the maritime physician determines which insurance contract he should subscribe for his protection.  Yet, in case of a grave professional fault, the physician faces very serious sanctions and can be deprived from many of his rights.