The Medical/Legal/Human Disconnect in Cure Cases: A Proposal for Reform

73 Pages Posted: 8 Aug 2023

See all articles by Thomas C. Galligan

Thomas C. Galligan

Louisiana State University, Baton Rouge - Paul M. Hebert Law Center

Date Written: August 1, 2023

Abstract

The obligation of a vessel owner to provide a seaman with cure or medical treatment for injuries or conditions which were either caused by the seaman’s service of the ship or which manifested themselves during that service is of ancient origin. The obligation lasts until the seaman attains what the courts call maximum medical improvement, a medical decision, even if further treatment would ease the seaman’s pain or prevent relapse or degeneration of the seaman’s condition. Under the traditional rules, if medicine could not fix the seaman’s problem, then the obligation to provide cure ceased. These old rules are out of step with modern reality in several respects; they are relics of our past and while history can be a reliable guide in legal interpretation, it should not shackle legal evolution where significant change has occurred in society, science, or culture. How are the rules concerning cure out of step with the world today? First, the rule that the seaman can recover cure for a condition which manifests itself during the seaman’s service of the ship, but which was not caused by the seaman’s service of the ship, places a risk on the vessel owner which is not fairly attributable to its enterprise. Modern worker’s compensation schemes require a worker’s injury or illness to arise out of the employment, i.e., to be a risk fairly attributed to the employer. Moreover, with first-party medical insurance so much more available today than it was in the days when courts first defined the vessel owner’s obligation to provide cure, it is unlikely a seaman will go without treatment. Additionally, the rule that medical treatment that eases pain or prevents relapse or degeneration does not count as “cure” is inconsistent with developments in medicine, including developments in pain management and medicine’s increased emphasis on maintaining the quality of a patient’s life, not just eradicating a condition (or not). Thus, I propose limiting cure where a seaman’s medical condition is not caused by the seaman’s service of the ship. In that case, the vessel owner’s obligation to provide cure would cease upon a determination that the condition was not caused by the service of the ship. Additionally, I argue that if the seaman’s condition was caused by the service of the ship, the right to cure should include the right to recover for pain relief and anti-regression treatment. As a necessary by-product of my proposals, the law of admiralty should jettison the concept of maximum medical improvement.

Suggested Citation

Galligan, Thomas C., The Medical/Legal/Human Disconnect in Cure Cases: A Proposal for Reform (August 1, 2023). Available at SSRN: https://ssrn.com/abstract=4529446 or http://dx.doi.org/10.2139/ssrn.4529446

Thomas C. Galligan (Contact Author)

Louisiana State University, Baton Rouge - Paul M. Hebert Law Center ( email )

440 Law Center Building
Baton Rouge, LA 70803
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
15
Abstract Views
97
PlumX Metrics