INTERNATIONAL CENTER FOR DISPUTE RESOLUTION
International Arbitration Tribunal
ILIJA LONCAR
Claimant
ICDR CASE NO.: 01-16-0004-3640
NCL (BAHAMAS), LTD. d/b/a
NORWEGIAN CRUISE LINE, and
CARLOS J. GONZALEZ, M.D.
FINAL AWARD
I, the undersigned Arbitrator, having been designated in accordance with the Arbitration Agreement entered into between the above-named parties and dated February 17, 2016, and having been duly sworn, and having heard the parties’ proofs and allegations, do hereby find and Award as follows:
1. Claimant, ILIJA LONCAR (hereinafter “Claimant”), at all material times was a citizen of Serbia and a crewmember in the employ of Respondent NCL (Bahamas), LTD. d/b/a Norwegian Cruise Line (hereinafter “Respondent” or “NCL”) aboard the Norwegian “Breakaway”.
2. Claimant seeks to recover compensatory and punitive damages from NCL for Medical Negligence, Negligence, Jones Act Negligence, Unseaworthiness, and Failure to Provide Adequate Maintenance and Cure.
3. The claims against CARLOS J. GONZALEZ, M.D. (“Dr. Gonzalez”) were dismissed by Claimant, without prejudice, on January 10, 2018.
4. The parties have agreed that the substantive law to be applied to this dispute is Bahamian law. Arbitration Agreement at Article 30, Paragraph 1, Claimant’s Amended Notice of Arbitration, at Paragraph 6, and Joint Statement on Arbitration Procedure, dated Nov. 18, 2016, at Paragraph 2.
5. Claimant’s relevant employment with NCL began in February of 2016, in a Bar Waiter position, earning $1400.35 per month. Seafarer’s Employment Contract, NCL 18921-409.
6. Prior to his employment with NCL, Claimant worked as a carpenter in his native Serbia.
7. Claimant sustained injury to his right (dominant) upper extremity on March 28, 2016, while aboard the Breakaway, and said injury eventually led to a below the elbow amputation of that extremity in April of 2016.
8. The cause of that injury, whether Respondent’s medical personnel fell below the standard of care in treating Claimant, and damages, are the subjects of this Arbitration.
SUMMARY OF SHIPBOARD CARE AND SHORESIDE TREATMENT
9. On March 28, 2016, at 1632 hours, Claimant sought treatment from NCL’s on-board medical personnel, for chills, fever and nausea. NCL 18921-163.
10. At 1640 hours, blood was drawn, an IV line was inserted, and Claimant received both normal saline and a side drip of IV Paracetamol. NCL 18921-163.
11. At 1650 hours, after vomiting, Claimant received a Promethazine Hydrochloride injection which was ordered by Dr. Campuzano and administered to Claimant’s right upper extremity by Nurse Oracion through the IV catheter. NCL 18921-163.
12. Promethazine hydrochloride injection, USP (“Promethazine”) is a sterile, pyrogen-free solution for deep intramuscular or intravenous administration, typically utilized to treat allergic reactions. NCL 19821-361.
13. At 1655 hours, Claimant complained to Nurse Oracion of severe pain at the IV site. NCL 18921-163.
14. From 1705 hours until 1930 hours, Claimant slept. NCL 18921-163.
15. At 1930 hours, Claimant awoke with severe pain in his right upper extremity, at which time the IV line was transferred and inserted into his left arm, and through which he then received Solumedrol and Diphenhydramine (Benadryl) intravenously for what Respondent’s medical personnel believed was an allergic reaction. NCL 18921-163.
16. At 2000 hours, Claimant was still complaining of severe pain in his right upper extremity and Respondent’s medical personnel observed cyanosis of the 2nd, 3rd and 4th fingers of the right hand, tenderness of the right arm, and erythema. NCL 18921-166.
17. In response to those charted observations at 2000 hours, Respondent’s medical personnel began massaging Claimant’s right hand and arm while continuously checking the rate of capillary refill. NCL 18921-166.
18. At 2050 hours, Claimant was still complaining of severe pain in his right upper extremity and he received pain medication on a STAT basis. NCL 18921-839.
19. At 2055 hours, Claimant received additional pain medication while Respondent’s medical personnel provided continuous massaging of his right upper extremity and checked his capillary refill. NCL 18921-839.
20. The next entry in Claimant’s chart is March 29, 2016 at 400 hours, five hours and five minutes later. NCL 18921-839.
21. At 400 hours, Respondent was providing continuous massaging while checking capillary refill. NCL 18921-839.
22. At 445 hours, Claimant was complaining of pain and tenderness while Respondent’s medical personnel measured the circumference of Claimant’s right upper extremity and observed tenderness and swelling, bluish discoloration of three fingers, erythema, as well as delayed capillary refill. NCL 18921-839.
23. At 545 hours, Respondent again observed tenderness, erythema, delayed capillary refill, and the blanched appearance of three fingers. At this time, Dr. Campuzano advised Claimant that he would be taken off-ship for emergency medical treatment. NCL 18921-167.
24. At 730 hours, Claimant complained of pain and requested additional medication. NCL 18921-167.
25. At 750 hours, Claimant received medication for pain along with continuous massage while Respondent checked his capillary refill. NCL 18921-167.
26. At 800 hours, Claimant complained of pain and stiffness in his right arm and right hand. At that time, Respondent observed four cyanotic fingers, loss of sensation in the 2nd digit, and redness of the arm and hand. Continuous massages were provided, and capillary refill was checked. NCL 18921468.
27. At 800 hours, Claimant was diagnosed with severe vasospasm in right arm after Promethazine treatment. NCL 18921468.
28. At 1300 hours, Claimant was disembarked from the ship, seven hours and fifteen minutes after Dr. Campuzano advised Claimant that he needed emergency medical attention. NCL 18921 Brevard-3.
29. At 1318 hours, Claimant arrived at Cape Canaveral Hospital. NCL 18921 Brevard¬3.
30. At 1504 hours, Claimant was transferred from Cape Canaveral Hospital to Holmes Regional Medical Center (arrived 1537 hours). NCL 18921 Coastal-1.
31. Claimant was admitted to Holmes Regional Medical Center on March 29, 2016and he was subsequently diagnosed with, and surgically treated for, compartment syndrome. NCL 18921 Homes-82-96.
32. Claimant underwent a right trans-radial amputation on April 12, 2016. NCL 18921 Holmes-92-93.
STANDARD OF CARE
33. The analysis here starts with the Standard of Care, and whether Respondent’s shipboard medical staff breached that Standard of Care in treating this Claimant.
34. Claimant has alleged that Respondent was negligent and/or fell below the standard of care in:
a. Selecting Promethazine instead of other available medications on board
b. The manner in which the Promethazine was administered/injected
c. Failing to obtain a vascular consult after Claimant manifested an adverse reaction to the Promethazine injection
d. Failing to promptly/timely evacuate (disembark) Claimant from the vessel
35. This Tribunal has read the depositions of the parties’ respective experts and has heard the testimony of those experts who were called to testify at the Final Hearing on the Standard of Care issue, including Carlos J. Gonzalez, M.D.
36. Dr. Gonzalez is Respondent’s Chief Medical Officer. Deposition, page 5, lines 6-7.
37. In his deposition, Dr. Gonzalez admitted that NCL’s shipboard physician (Dr. Campuzano) breached the applicable Standard of Care by (a) realizing he needed to consult a specialist regarding Claimant’s worsening arm, (b) calling the Cleveland Clinic to obtain such a consultation but, then, (c) after trying to reach the Cleveland Clinic twice by telephone and not speaking with a specialist, abandoning those efforts to obtain the very consult he deemed medically necessary, and instead (d) proceeding to attempt to treat a condition which he had never encountered and about which he knew nothing. Deposition page 192, line 8-12 and page 196 line 5 through page 200 line 22.
38. Dr. Gonzalez also admitted that Claimant had a limb-threatening condition as early as 2000 hours on March 28, at which time an emergency evacuation should have been initiated. Deposition page 120 lines 14-20, page 121 lines 1-4, page 135 lines 16-22, page 148 lines 4-9.
39. In essence, Dr. Gonzalez acknowledged that there was a distinct possibility Claimant could lose his arm — a clear medical emergency by any standard — yet he was never medevac’d from the ship despite Respondent’s clear policy requiring such an evacuation under these circumstances. NCL 18921-217.
40. All three of the non-retained treating physicians in this case who provided shoreside attention to the Claimant have testified that, more likely than not, they could have saved most if not all of Claimant’s right upper extremity function had he been brought to a trauma center within eight (8) hours of the subject promethazine injection. Deposition of Fuad Ramadan, M.D. (vascular surgeon), page 35 lines 5-20; Deposition of Robert Blease, M.D. (orthopedic surgeon), page 45 line 13 through page 46 line 13; Deposition of Kyle Moyles, M.D. (orthopedic surgeon), page 50 line 7 through page 54 line 4.
41. The parties have stipulated to the operational feasibility of such an evacuation.
42. Had Respondent ordered Claimant’s evacuation from the Breakaway at 2000 hours on March 28, he would have received limb-saving treatment in a timely fashion, pursuant to the testimony and calculations offered by Claimant’s expert, Richard Dien.
43. Claimant was not evacuated until 1300 hours on March 29, some 17 hours after he clearly demonstrated an obvious adverse reaction to the Promethazine injection.
44. This Tribunal is keenly aware of the errata sheet prepared by Dr. Gonzalez following his deposition, as well as the live testimony offered by Dr. Gonzalez at the Final Hearing, and both were considered by this Tribunal, but neither was sufficient to overcome the unequivocal answers he provided under oath at his deposition to clear questions about the Standard of Care.
45. There is no dispute that with Promethazine comes some risk of Compartment Syndrome and that the ship’s formulary carried risk-free alternative medications. Further, there is also no dispute that the Breakaway was not equipped to address, medically or surgically, a case of Compartment Syndrome. Under these circumstances, it fell below the Standard of Care to utilize Promethazine for what was, at worst, a single episode of vomiting. Final Hearing testimony of Maria De Los Santos, and Deposition of Maria De Los Santos, page 129 lines 10-16.
46. The analysis of the Standard of Care here, and the manner in which it was breached, would be incomplete without discussing the qualifications, treatment, sworn testimony and credibility of the two primary caregivers, Dr. Campuzano and Nurse Oracion.
DR CAMPUZANO
47.1n March of 2016, Dr. Campuzano was a young, inexperienced, Colombia-trained physician (licensed in 2013) who was hired by NCL just 4 months before the subject incident.
48. Dr. Campuzano admitted that, prior to ordering the Promethazine injection for Claimant on March 28, 2016, he had never read or consulted the PDR, the ISMP, the package insert, or the black box warning.
49. Dr. Campuzano admitted that, prior to ordering the Promethazine injection for Claimant on March 28, 2016, he did not consider any of the alternative Gastrointestinal Antiemetics available in the ship’s formulary.
50. Dr. Campuzano admitted that, prior to prescribing the maximum allowable dosage (25 mg) of Promethazine to Claimant on March 28, 2016, he never considered a lower dosage.
51. Dr. Campuzano admitted that he ordered an intravenous (IV) administration of the Promethazine to Claimant on March 28, 2016, even though the preferred method was intramuscular (IM).
52. Dr. Campuzano admitted that the IV “push” of Promethazine was left to Nurse Oracion even though an infusion pump was available and would have eliminated the element of human error in the “push” rate.
53. Dr. Campuzano admitted that, prior to ordering the Promethazine injection for Claimant on March 28, 2016, he never warned Mr. Loncar of the associated risks or offered any alternatives or obtained his informed consent.
54. Dr. Campuzano insists that Claimant did not present a medical emergency while on-board the ship, despite the fact that the doctor stayed awake with the patient all night, massaged his arm continuously, brought in his Senior Doctor (Dr. Marcelino), made two calls to Cleveland Clinic for vascular surgery consults, did internet research, and called Respondent’s Medical Director (Dr. Gonzalez).
55. Dr. Campuzano insists that Claimant was disembarked from the Breakaway on March 29 in stable condition, but Respondent’s own expert — Dr. Rollins —testified that Claimant’s right upper extremity was not stable at any time after the Promethazine injection on March 28.
56. Dr. Campuzano’s testimony is further refuted by EMT Michael King, who observed Claimant’s right upper extremity immediately upon disembarkation.
Deposition page 54 line 24 through page 59 line 15, and “Defendant’s” Exhibit 1 to the King deposition.
NURSE ORACION
57. Marco Oracion received his Nursing (BS) degree and became a Registered Nurse (RN) in 2007.
58. As of March 28, 2016, Nurse Oracion was generally unfamiliar with Promethazine. Deposition, page 10 line 4 — page 12 line 12.
59. On March 28, 2016, Nurse Oracion injected, pursuant to Dr. Campuzano’s order, 25 mg of Promethazine into a port on the main line in Claimant’s right arm. Deposition, page 23 line 6 — page 24 line 6.
60. Nurse Oracion testified that, even though an infusion pump was available and would have eliminated the element of human error in the “push” rate, he administered the Promethazine by slow push by hand, over a two-minute period of time according to his watch, without changing the pace of the injection. Deposition, page 24 line 17 — page 25 line 13.
61. Claimant complained of pain to Nurse Oracion a minute after the Promethazine injection. Deposition, page 20 lines 20-22.
62. Claimant did not previously complain to Nurse Oracion when blood was drawn, or when Paracetamol was administered, at the same injection site. Deposition, page 37 line 22 — page 38 line 8.
63. According to his testimony, when Nurse Oracion’s shift ended at 2000 hours on March 28, 2016, Claimant’s right arm was perfectly normal. Deposition, page 53 line 6 — page 54 line 7.
64. That testimony is entirely inconsistent with, and refuted by, the Nurses Notes — Patient’s Progress of Jennifer Santiago (“Plaintiff’s” Exhibit 7 to Dr. Campuzano’s deposition), and the observations of Dr. Campuzano.
65. Finally, Mr. Loncar disputes the time it took for Nurse Oracion to administer the Promethazine injection, insisting it was closer to 20 seconds than it was to two minutes. Loncar deposition, page 70 line 20 through page 71 line 2.
CAUSATION
66. Claimant demonstrated an immediate adverse reaction to the Promethazine injection on March 28.
67. Claimant developed Compartment Syndrome, and it began sometime after the Promethazine injection was administered by Nurse Oracion.
68. Promethazine is a caustic medication (vesicant).
69. Promethazine was the cause of Claimant’s injury.
70. There is significant disagreement among the experts as to how and when the Promethazine escaped from Claimant’s right median cubital vein and into the surrounding tissue.
71. Claimant’s counsel stipulated prior to the Final Hearing that there was vasculitis, but no extravasation. See Claimant’s Response in Opposition dated 1/17/18 (at page 11) and the Order of this Tribunal dated 1/18/18 (at paragraph 1).
72. Upon reviewing all the expert testimony and evidence offered on this issue, including the testimony offered BY Drs. Cossman, Rollins, Aranson and Villa, in combination with the facts and circumstances surrounding the Promethazine injection as described by Nurse Oracion and Mr. Loncar, the inescapable conclusion of this Tribunal is that the medication was pushed too fast and in a manner that fell below the applicable Standard of Care, resulting in an intra-arterial injection as described by Dr. Cossman at page 21 lines 10-25 of his deposition, at page 95 line 14 through page 96 line 12, and at page 97 lines 5-8.
73. As a direct consequence of the too-fast push and the resulting Compartment Syndrome, Mr. Loncar endured weeks of excruciating pain, multiple surgical procedures, and eventually the loss of his dominant right arm, just below the elbow.
DAMAGES
74. At the close of Claimant’s case, Respondent moved for a Directed Verdict on the claim for punitive damages, and this Tribunal reserved ruling. That Motion was
renewed at the close of the case, at which time Respondent’s Motion for Directed Verdict on the claim for punitive damages was GRANTED, as this Tribunal found no evidence that Respondent’s care and treatment of Mr. Loncar was wanton or willful or malicious or deliberately indifferent. To the contrary, all the evidence and testimony indicates that Dr. Campuzano (or other medical personnel from NCL) remained at Claimant’s bedside for the better part of the overnight hours, monitoring his condition and massaging his arm. While clearly negligent in selecting and administering Promethazine, and in failing to obtain a timely vascular consult, and in failing to timely medevac the Claimant from the vessel, Respondent’s conduct does not rise to the level of gross negligence or outrageous behavior in the eyes of this Tribunal.
75. Claimant received Maintenance, and thus his claim for past Maintenance was abandoned by a stipulation on the record at the Final Hearing.
76. Similarly, any claim for Cure is moot, as Respondent has paid all of Claimant’s medical, therapeutic and hospital expenses up to (and beyond) the point when Mr. Loncar reached maximum cure.
77. However, recovery of Maintenance and Cure does not bar recovery for personal injuries. Pacific S.S. Co. v. Peterson (1928) 278 US 130, 138.
78. The measure of personal injury damages includes past and future economic losses, loss of earning capacity, medical expenses, and pain and suffering. Levine v. Zapata Protein (USA), Inc. (E.D. La. 1996) 961 F.Supp. 942, 945-947.
79. Mr. Loncar is a 30-year old gentleman with a life expectancy of 48 years.
80. Mr. Loncar’s prosthesis will require periodic maintenance and replacement over the course of his lifetime, the cost for which Respondent is liable.
81. However, the opinions offered by Claimant’s expert (Anthony M. Gamboa, Jr., Ph.D., MBA) regarding the present money value of the prosthetic lifetime cost (see his Report dated 5/31/18) are inherently unreliable, as Dr. Gamboa utilized United States statistics to calculate the damages of a Serbian national who lives and works in Serbia.
82. Thus, while the future need for periodic maintenance and replacement of Claimant’s prosthesis is without question, the cost of such maintenance and replacement in the future rests within the discretion of this Tribunal.
83. After consideration of all recoverable claims, the Tribunal finds that Claimant has sustained and will sustain the following damages:
a. Past pain and suffering: $ 337,500.00 USD
b. Future pain and suffering, loss of earning capacity,
and medical expenses (including prosthesis): $3,000,000.00 USD
TOTAL DAMAGES (a and b, above): $3,337,500.00 USD
84. As the Tribunal has awarded no damages for Maintenance and Cure here, Claimant is not entitled to recover attorney’s fees.
85. Pursuant to Article 34 of the International Arbitration Rules, Claimant’s counsel has established to the satisfaction of this Tribunal that they incurred $173,214.74 USD in recoverable/taxable costs in preparation for and presentation of this Arbitration.
86. For the reasons set forth above, I Award as follows:
a. Respondent shall pay to Claimant the sum of $3,337,500.00 USD, representing the grand total of the awarded damages.
b. Claimant’s request for attorney’s fees is denied.
c. Respondent shall pay to Claimant’s counsel the sum of $173,214.74 USD, representing the recoverable/taxable Arbitration costs.
d. The administrative fees and expenses of the International Centre for Dispute Resolution (ICDR) totaling $8,000 USD shall be borne by Respondent, and the compensation and expenses of the arbitrator totaling $27,000 USD shall be borne by Respondent.
e. This award is in full settlement of all claims submitted to this Arbitration. Any claims not expressly granted are hereby denied.
I hereby certify that, for the purpose of Article I of the New York Convention of 1958, on
the Recognition and Enforcement of Foreign Arbitral Awards, this Final Award was made in Miami, Florida, USA.
Miami-Dade County, Florida this 13 day of June, 2018.
Peter E. Abraham, Esq.
State of Florida County of Miami-Dade
I, Peter E. Abraham, Esq. do hereby affirm upon my oath as Arbitrator that I am the individual described in and who executed this instrument, which is my Final Award.
Dated: June 13.2018.
Peter E. Abraham, Esq.
State of Florida County of Miami-Dade