Dealing With Pre-Existing Conditions In Jones Act Seamen
Part Three: Potential Defenses—Inevitably Worsening And Pre-Existing Conditions
(Editor’s note: This is the third of three articles written by attorneys from Fox Smith LLC of St. Louis on handling pre-existing medical conditions for vessel employees. Part 1 appeared in our May 24 issue; Part 2 ran June 21. All three articles were previously published in the newsletter of the Greater New Orleans Barge Fleeting Association.)
The defenses available in combating a lawsuit from a seaman who failed to make a material disclosure (or actively concealed) a pre-existing condition (covered by Fox Smith LLC’s Ted Lucas in the June column) are effective tools for a Jones Act defendant. Absent a failure to disclose or active concealment, a Jones Act seaman’s pre-existing medical condition(s) can still provide ample opportunity to defend against damages alleged for pre-existing medical condition that was merely aggravated by the seaman’s on-duty incident or that would have inevitably become worse, over time, regardless of the incident altogether. Before going any further, it is important to note that the defenses discussed in this article do not have any impact on a Jones Act employer’s maintenance and cure obligation for an injury that occurred while a seaman was working in the service of a vessel. Absent active concealment, this obligation broadly extends to any injury, whether it pre-existed the employment or not, so long as there is evidence of the injury’s “occurrence” while the seaman was on duty. Maritime law is extremely favorable toward injured seamen in consideration of contested maintenance and cure claims. It follows that courts have defined “occurrence” very broadly in the scope of maintenance and cure evaluation. In one case, even a seaman’s lymphoma, which was present in the seaman’s body but completely latent until after he retired, was considered subject to his employer’s maintenance and cure obligations. You should consult with counsel prior to making any adverse determination regarding maintenance and cure payments related to a seaman’s medical condition and/or treatment.
Fortunately, when it comes to evaluating damages related to a Jones Act plaintiff’s pre-existing medical condition, courts are much more discerning. Courts are unlikely to hold a seaman’s pre-disposition to certain injuries against them.
For example, if a seaman has a heart condition (or a vascular condition) that causes them to be more susceptible to a heart attack and the Jones Act employer is found to have caused a heart attack, the employer is liable for all damages resulting from that heart attack regardless of whether a person without those pre-existing heart issues would have suffered the same injury. This is commonly referred to as the “eggshell plaintiff doctrine.”
However, maritime courts recognize the “aggravation doctrine” as well. This comes into play when a seaman sues for damages related to a part of his body that was deteriorating prior to his on-duty incident. For example, if a seaman has a pre-incident history of shoulder dislocations and suffers a related injury to the same shoulder while on duty, the Jones Act employer should not be held liable for the underlying shoulder issues. The seaman can only recover for the portion of his injury that was aggravated during his on-duty incident.
Similarly, courts recognize that a Jones Act employer is not responsible for a pre-existing condition that would have become worse, over time, regardless of any on-duty incident claimed by a seaman. This defense is crucial to raise if it is supported by medical history that a seaman’s condition would worsen, inevitably, regardless of his on-duty conduct. For example, if medical history indicates a seaman was on track for back surgery because of a prolonged, deteriorating condition and he only gets that surgery after a claimed on-duty injury, a court will discount his employer’s liability (possibly entirely) to account for the inevitability of that seaman’s deterioration or surgery.
Obviously, delineating between the pre-existing and deteriorating condition and the injury (if any) that was caused by the incident requires medical expertise and testimony. The seaman’s treating physician may admit to the pre-existing, deteriorating condition playing a role in his on-duty injury. But they are unlikely to provide precise delineation for the purposes of damages to the detriment of their patient’s case. It is crucial that your defense counsel has access to reliable medical expertise so that they can present an objective, credible and precise evaluation on how much (if any) of a seaman’s deteriorating condition is the responsibility of his employer.
Please note: The information provided in this article is NOT legal advice. Do not rely on this article to establish company employment, hiring or medical screening practices. You should work closely with your employment and Jones Act defense counsel in developing your policies and determining the applicability of the defenses discussed in this article to any particular claim.
