not the employer of a seaman has fulfilled its duty to provide prompt and adequate medical care to a severely injured seaman by simply calling nine one one well would you have had them do call nine one one there is not a question of whether or not they ambulance is going to come ask what is happening to their seamen ask what the medic who is in the medical report says he is unresponsive he is unable to set up we hear he has to be restrained it appears that he's having a stroke where are you taking our employee is it a stroke center is it just the closest place single question of whether where you're taking him and follow through with someone else of the company or at least follow through maybe follow him to the hospital on it and then at the end of the day the problem is that there was an allegedly a mistake made by the doctors these guys running a they supposed to know more than the doctors this was go well no i get a stroke and not of this or that and you should run this test i mean this is highly specialized issue this isn't something where they operated on the wrong leg and anybody would know that so what i'm just struggling with i understand the broad reach of maritime kind of jones act scenarios well i'm just having trouble getting my head around how you were void this if you are cosby i think the way you avoid it is you know and i understand the difficulty with the maritime issues there is a little bit more protection for these seamen then there is for average worker at a workplace it's no i get that but it should be that if you're doing everything right you avoid liability it shouldn't be that you're just liable i understand the maintenance and cure issue that's what i'm talking about but that you're just liable for the world that happens to the c man or is that the law and if that's the law it's a law but that just sounds very i know it's broad but that's sounds way way broad and i'm not suggesting that in every single case calling nine one one is not appropriate but i think in this specific situation that is the law that if crosby had instead of calling nine one one they said you know let's not wait for the ambulance to get here we don't know when they'll get here let's take him to this hospital they would have been responsible i don't think there's really a question that they would have been responsible i think the fact that they just called an intermediary shouldn't leave them of that responsibility but is there something on its face that tells us this is an inappropriate place to take him i think that there are stroke certified centers in the state of louisiana and all over the all over the nation and i don't and i think that is part of why my understanding of also our neurologists discussion and what has happened is i think there are regional medical center where he was taken they had to do what is a telemedicine concept they had to get somebody outside of the hospital to say you know this is what's going on and you know what is happening what should we do we even know that there is a person that there is a hospital that has the right facilities within a certain amount of miles do is that in the record that is that is not in the record ok so there may not be a close enough place that's better well i think that had we been able to present this before the  jury that could have been part of the record well but that's that's not how this works i mean you have to create a record that we look at and if there's evidence that right next door was the stupendous wonderful hospital and you took them to the wrong one that should be in the record and that's part of the argument i mean my concern is the doctors couldn't agree really on what to do with mr randall and i'm and you're saying crosby shouldn't known what to do i mean that's essentially what you're saying they should i asked as he doing whatever i mean if i were say a family member of this guy and i'm going along on the ambulance whatever and everybody is doing what seems right they're rushing in here doctors are reviewing him beings are happening i'm thinking everything's fine if the doctors saying we don't know if it's this we don't know if it's that how am i supposed to interject that and i'm a well educated person i'm not sure everybody running around in this world dealing with with ships has a graduate degree but it doesn't matter because i'm a graduate degree in medicine any more than they do and i understand that so i'm just struggling with i realize again this is very broad i realize protection of semen is a well established principle and i'm not in any way disputing that  you all are presenting this as a russian over question in our circuit so obviously the degree of the breath is that issue and so i'm pushing on the idea of this is what you're supposed to do is call nine one one if they sat around instead  trying to find a wife i so they could get on their phone and find the best hospital within three hundred miles and all that you would have said you delayed a scare you should have been delaying is kerry should let the caregivers decide they should let doctors decide that i think with the established law in the circuit with the dissent and the central goal case an employer can be vicariously liable for the medical negligence of a provider and even even in they just said ship agent take him to a doctor i doubt very seriously that the shipping agent or the ship provider in that case knew or would have been able to also second guess the doctor who provided  care to that particular seaman in that case i don't think that's we're asking us so to take it one more further than those cases and i think those cases are already quite broad and quite positive for the seamen and that's fine again i respect the whole caring for the seamen concept here why should we go that one step further when the thing you're supposed to do if somebody right now started collapsing i would call nine one one i'd find a phone where i could call nine one one that would be my response it wouldn't be whom i wonder if we should call this center or that center and i wonder which hospital in houston might be best and let me call my friend you know stuff about how it would be calling nine one one and that's what we want people to do what is it that you want these tug operators and what not what the crosby's of the world to do that would have changed the outcome here i think that the calling of nine one one is what their  policy was i think that asking and making sure that he was taken to a facility that they could trust or that they knew of or at least following along this is not a much further step than what happened in dissent know and central gulf even in the dice case that both crosby and the district court relied on the the four circuit case studies vs express marine in that case they called nine one one and there was a policy in that case the four circuit said that's a close call as to whether or not nine one one in that particular instance was fulfilling their duty for prompt an adequate medical care and in that case the semen was not incapacitated had not suffered a stroke i think that the specifics of this case and what had happened to him i think following along a little bit more closely than just calling nine one on the washing their hands of it i think that again it's it is a broad duty that they have that prompt and adequate and it wasn't adequate it's unfortunate if that's the way that you know that crosby doesn't want to have to be responsible for that but that's the way that the law reads under the fifth circuit cases already is the prompt and adequate and i don't think that well why isn't calling nine one one prompt and adequate it is prompt it's not guaranteeing if the ambulance a diff the medics had come out it's not a guarantee of prompt and adequate that's the problem is it's just a call of nine one one if the medics to come out and not given adequate care on the on the brick or on the tug cross he would have been responsible but they would have been able to second guess in that situation either because they don't have a medic on board i think that the problem is just calling nine one one i don't think guarantees a seaman to what he is entitled which is prompt and adequate medical care was this woman he was conscious he was conscious but he was unable to speak he had a left side paralysis and he was conscious but he couldn't speak no your honor he couldn't even sign the authorization form in the medical record which is in the record it says you know he can't sign they had to even give it give him over from the ambulance to the hospital the only way he was able to have even get anybody's attention that he had suffered the stroke was by he had fallen to the ground he was kicking at the door with his right leg he was unable to speak and he had no it was left side of paralysis so the question is whether  extend right correct correct john and that's why i think with the and his inability to communicate which is why i think that the other two cases the dissent know and the central cold cases are instructive because in both of those cases they were bald or in semen in foreign courts they didn't speak the language and they really had to rely on the ship owner who provided or took them to pour the care i think that even  an ambulance been called and taken the honduran worker to the california doctor in that case you know when a doctor still gave me an adequate care i think there still would have been some responsibility i don't think there would have been a different result there what damages if we were to send a spec would be sought specifically he has he lost a significant amount of brain tissue as a result of the inadequate care and the lack of proper medication so we're looking at pain and suffering and significant future loss of earning capacity because he is permanently and totally disabled there is no work that this man can do and he was a captain and that's what we would be seeking that's what we would have sought and that goes beyond typical maintenance mean i just want to know where on that prisoner exchange with judge king it's it's not that the immediate medical payments were not made it's not that he wasn't paid maintenance it's this long term future issue that is pain and have to go through an entire medical review panel and well it's med mal damages i get correct and it's based on the malpractise the doctors did not commit malpractise there would not be liability for cause we took that's correct ok in the days whether or not a jury would find one that the medical care provided by the physicians that either offer or tash was negligent and to whether or not then crosby has fulfilled its duty to provide prompt and equip medical care and i think there's an issue of fact as to whether a or yes your our position in this case we're not looking for a bright line rule going forward at all times but in this case we think that crosby is vicariously response but you know we write opinions surprisingly other people read them and yes it has the effect on other cases so yes you are asking us to expand the law i understand that's what your client needs and you're doing what you need to do as a lawyer i'm not criticizing that but it's not as if wow this will be in some cave somewhere that nobody will know about this will expand jones act liability to me to a very large extent i'm not saying you're wrong just saying it's really pushing what are already very broad cases pretty b i think that it is not much of a push from descent to here because we have a seaman who is unable to communicate and even be able to select the medical care that he is given i think this is a very small step beyond that i don't and i think that it can be limited to situations where there is a life threatening illness wary and cannot communicate this isn't a situation i don't think so that the problem to me is this business where i'm going to be in some port somewhere trying to find a cure for this team in the the worse his injury the more the duty on me the guy on the vessel ok the whoever's in charge on the vessel and the timing is more large and so is having a heart attack or somebody is in acute if somebody just has a stubbed toe i can spend some time you know researching the best of toad auctor in louisiana but the emergency urgency is exactly why you call nine one exactly why you're trying to get him cure immediately exactly why you want to get him in the arms of the doctor so to speak and not be yourself around you know on your phone trying to find the good doctors in louisiana i understand that i think  with that urgency also a little bit of a higher standard because it is it is more significant than stubbing your toe on the phone which is why i think it crosby is responsible to make sure it's adequate  have i have a quick question that has to do with the you're talking about he was in the stroke facility you don't have to be a stroke facility to administer the the medication timely i mean that's that's just a normal thing they do in emergency places right so that you don't need any special you just have to be able to think to perform a c t scan which is what they did in that case it was just an r v and it was misread or else it's a question not of whether or not crosby fulfilled the obligation to pay for medical treatment it's a question of whether crosby has any liability whether crosby was negligent in any way connection  failure to provide adequate medical care and vicarious liability if you will for the doctors who messed up allegedly messed up and i know you think they didn't but let's let's assume argue endo for the moment that they did no james i think you've got directly to the heart of the matter it was laid out i think in both parties briefs and in judge found opinion there really are four ways that a jones act employer can be liable in negligence to the seaman in connection with medical treatment  failed to provide any medical treatment all we know that didn't happen here because an ambulance was called almost immediately fail to provide prompt medical attention and again we know that was not the case here negligence in the selection  the physician submit to you that did not happen here either all crosby did was call nine one one again i think faced with as members the panel or suggested this morning if if someone in the gallery  suddenly were non responsive along on the floor i think the first reaction all of us would have any reasonable person would have would be to pick up the phone and call nine one one and get and ambulance here so that medical professionals could figure out what was wrong with that person but then you get to place they'll give you option well close places certainly so that's they they didn't assume any responsibility for where the record for where the ambulance think if they had i was going to ask what the record shows about amelia louisiana how i mean if i collapsed in houston there's a lot of hospitals in houston i assume and so probably there is a choice that two miles away there is x then two and a half miles away there's y and so on but if i collapse in you know the middle of nowhere probably nobody asked where they went take me because they have to take me to close this place which is sure thirty miles away tell me about amelia louisiana and how far that is from anything and stroke and the the hazards that one faces as a medical professional well if i treat this type of strike feel relatively comfortable that had crosby tugs inserted itself and said we've decided that he has this and you should give him this treatment you know what would a broken leg so i feel i feel sure there's probably a by lesion of the law for one thing for somebody to come in and start you know the captain of the ship or the whoever to come in and start being the nettle doctor then the question here really is whether you're going to almost have absolute liability or some form of strict liability for that when you're talking about c man needing emergency care and i think that's really where this is going and given the breadth of care for c men that is so rooted in history why when we just do that and say you know you are just responsible for this person whatever the situation well your honor the reason i would offer you to to not do that is twofold number one that would take the liability out of where it's always been in the field of   act negligence and move it completely to as you're suggesting a field of other absent liability or some species of muncie were pliability without fault that's never been the nature of the jones act employers obligation to provide medical can be negligent in connection with medical treatment the employer in descent or no selected the doctor that's number three and the doctor malpractise by virtue of the improper selection and by  adventure in the record that it was an improper selection the dr turner was somehow substandard or that anyone would know there's nothing in dissent to know that says that that doctor so why isn't that analogous to calling nine one one you're taking you're putting the person into the stream of the medical system i'm not sure that this case is about a gross expansion of liability i think i don't know how this case is all that different from descent to know where the sand they think he went they went to a local doctor it's not a company doctor and so carry nine one one is putting it into the medical system just just saying you can see that the dr became they so rocked the medical care by calling nine one one the same way that you select the medical care otherwise you're picking how to get into the stream of medical care that's essentially the same as saying that every medical provider in the phonebook is as a matter of wall of the agent of the employer when the vessel happens to be in that lo no the other implant mean the problem to me is the question of kind of the dividing line but what worries me a little bit about this is all of the prior cases did involve varying degrees of selection of the provider here you call nine one one which is kind of what we're all taught and now our nieces and nephews and kids and whatever we're all taught at age three call nine one one now we're saying that's not good enough and what worries me a little bit about that is now we're going to start encouraging these shipowners and vessel you know whoever's in charge the captain or whoever to start interjecting themselves into the medical treatment of the c men in a way that itself could be damaging much less when somebody refuses care on the part of another person and the fact is if you show up and it's your husband or it's your father whoever and you don't have a medical power of attorney your rights are very limited in how much you can restrict their care and that's your relative so this is to me getting very far afield on the other hand as judge alright pointed out dissenting knows pretty broad so with samuel in both of those cases there was a medical emergency of some sort a doctor was called a doctor provided some sort of treatment then the semen was delivered back into the hands of his employer he went back a vessel and this employer sat there and watched his condition get worse and didn't do anything about it didn't call in a specialist didn't seek for the treatment and the in the case of seven of the gentleman dodd in the case of samuel he ended up losing his  but that's an important i think distinguishing fact that's not present in this case but those are not the facts in determining the negligence in those cases neither of those cases that determine the no good at the part where the negligent medical treatment took place and they didn't actually select dr lee they just took him to the closest hospital how is that different than calling nine one one that seems to be very similar to calling nine one one the range for him to be taken to the nearest hospital that's what nine one one ordinary unless you do make inquiries and unless they have a special contract with the  that differ in some bulla the negligence was the fact that the doctor at the closest hospital was not a good ophthalmologist and made poor off from ology decision  but that was the closest hospital that he was transported to by the by the workers well if memory serves judge or i believe in the vessel and was criticized for going to just the first available hospital as opposed to other available specialists that when the area and there was a good bit of flour led to the opinion about the fact that the ship would not have had to sail around the cape of good hope in order to reach of medical providers and this record doesn't contain anything to show us that that you know the people in the nine one one ambulance are themselves who are not doctors they are people with medical training that's what they are there first responders there are people that can and mr c p r so and so forth so they're supposed to know where to take the person right you're out of they're certainly more qualified and they're more familiar with the local hospitals and if there's five of them and one of them is a stroke center and one of it versus there's nobody else around for one hundred miles and this guy is unresponsive we need to get him to the closest place they're trained in that regard or at a minimum this record doesn't refute that general was discussion among the keys as to this what had happened being a stroke and they took him to test regional medical center and again test regional through a telemedicine procedure consulted with doctors at ochsner who have stroke beulah the injury there was it was a very obvious one to get back to the example of which we amputated the wrong leg that gentleman had an eye injury and it was fairly obvious well injured i that one to go to an eye specialist here we had a non responsive seaman and i think it's easy for us all in hindsight to look and say well that that sounds like that probably was a stroke but certainly no one aboard the vessel at that time had any idea and certainly no one had any idea when nona one was called it wasn't until the e m t's arrived that any possibility existed for there being a diagnosis made and way and those e m t suit who again it's undisputed were not the agents of crosby were not selected specifically by crosby and had no employment relationship crosbie they took him in the exercise their medical judgment to what they thought was the most appropriate bacillus and fortunately knock wood of not been hospitalized at many times and haven't  had the the misfortune to have to go to test regional medical center i have no idea how large a facility is but it's not as though they brought him to the doc in the box on the corner what does the record i guess does the record show us is there evidence of a better place he could have been taken within the timeframe necessary given the circumstances but you know that we don't want to delay and drive him all the way to you know dallas or new orleans or wherever it does ok and so isn't that their burden and even on summary judgment it's their burden because it's their burden of proof it trial to raise a fact issue that would show hey right next door was stroke usa that was terrific and had nationally known doctors or whatever and you ignored it ticket here and by calling when you put him in this position there is nothing like that here that is not on the ground the record correct your honor and again i hate to keep drum but i think in order to get better form the inquiry there would have to be some there with the other evidence on the record of which there is no and or a weak will conclusions a matter of wall by this court that that whatever happens happens is your call again you'd have a think a a captain or a you know walk away in this case we were were important maybe we can get a company safety minute come along he rides in the ambulance he gets to the hospital and the doctors say well we think it may be a stroke  we think it may be a brain mass safety guy i work should we do it is the obligation of the ship owner and when they call nine one your honor i would say that on the facts of this case i certainly would not say that's a bright line rule i think obviously  the point of any any obligation for to look after the seamen you're are certainly i would say that that would apply within the three hour window we're talking about here and i think that's the crucial time but also that's a little bit separate from continuing to care for him for example thanks send him back and he collapsed again and all of this kind of instilling need for care versus what caused the harm here and what are they trying to hold him accountable for they're trying to hold him accountable for the doctors at the place nine one one took him to and so that's really the question i have a quick question that we haven't covered which is we talked a lot about samuel low and dissent to know we're clearly bound by them i'm not suggesting otherwise but i think one one i think has evolved substantially as a mechanism for a does that factor into the decision of how far we extend those cases not do we follow on course we follow but does that age of the case and the development in just how medicine how things happen how margins these are handled does that affect how much we want to expand that you know it's a good question i'm not sure that it does i think the more recent case of the fourth circuit the dice case  if we were to say that you still have a duty did you know send a guy along or whatever but you're not you the cross be are not liable for the wrongdoing of the nine one one chosen hospital doctor would there be a difference in the outcome here and if you did have an obligation to send somebody an ambulance which didn't is there any evidence that sending the guy in the ambulance would have made any difference to the could have really contributed from a from an intelligent informed medical standpoint to be able to say we yes we agree or disagree with this course of treatment or no we think we should go to some of the hospital entirely because we decided you were going off counseling can you answer if in response to the questions judge king had for you she was asking about whether or not you have to get this continuing duty  to keep monitoring what's going on and not to just drop them off and say ok we'll we'll catch you later when you get out of the hospital in dice they specifically since somebody along for that purpose to monitor to make sure it each step that it was happening if that's not a duty why would they spend all that money and time to hand hold through the entire process to make sure everything was happening appropriately judge i haven't seen any that indicate that sending someone along in the ambulance is a specific duty of the employer again and a case of is this one that that perhaps of the duty without a point it would really serve no purpose if the no no on the dice person got to the hospital and over saw what was happening and making sure that everything was going right and so if they're not giving the stroke medicine or whatever just like they could say hey guys you keep we got to get on this we gotta get this taken care of it's stroker or not i don't just say please do something you know they keep it going and if you if you've ever been in the emergency room where there's no one with you and you don't have somebody to advocating keep going up to the desk and saying my person is really sick i need they need help that's a big difference about the timeliness of the treatment and why would those have the time and expense of having a person overseeing their care that's what it's described in the case is a person overseeing their care from the company so i don't think it's just a useless function where your honor a again just looking at the facts of this case in particular i think we're talking about is a three hour window of time is what's been represented i think also into the core of if only someone else had been involved in this three hour window of time a different decision might have been ma crucial three hour of time on whether to administer this t p a treatment and again your or that someone else is a doctor not the company rep judge i think that's exactly correct that there's no one that up that i'm aware of employed in the the family of companies that could could have made that decision or contributed in any meaningful way to it ok thank you we have your answer to the question and like to just address a couple of the things are brought out in crossties argument and one of the things that i don't think really would make that much of a difference is it in dissent know it's there are four ways that an employer you know they say that employer can be responsible or breach its duty to provide prompt an adequate medical care that last factor is by the negligence of the doctor that was selected by the employer i'd that you know there was there's been questions of whether or not there was evidence of where else he could have been taken let's say that mr randall was taken by crosby to a neurologist but that neurologist still while perhaps qualified still misdiagnosed the problem and to a level of medical negligence had they dropped him off at that doctor i think that under descent no there would still be vicarious liability for that m so i mean the question is whether we're going to expand that rather broad liability a little more or a lot more depending i you look at it to the nine one one call but i want to ask about what the exchange that we had towards the end of your opposing counsel argument which is this issue of sending the company rep along is it your position that the company rep would have been the guy to pick between the brain mass and the stroke when the doctors are the ones fighting over it know you ok i don't so even if there is a duty to send the company rep that's not the problem here no the problem and having at least having and perhaps it would have i don't know what would have changed if there's been a company rep sitting beside him but he was at test regional medical center from eight twenty six in the morning to nine fifty and then put him in a waiting room like when you take your loved one to the emergency room he said in the waiting room for hours when an ambulance takes you you go straight through to the medical you go to the tree oh yes and ok and he was just so he wasn't sitting in a waiting room nobody knew he was there  that is that is not the case i think no i just wanted to bring up the issue i think that regardless of where he was taken if negligence occurred i think there is vicarious liability it's not strict liability why isn't that strict just saying we're every stake in wherever he goes if they screw up if they're the best doctor in the country but they screw up so on you i think it's a vicarious liability that was set forth in dissent by this one back because they're an agent they become the agent as a matter of law