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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Personal Injury Law
Satisfied Customers: 89320
Experience:  Licensed Attorney. Over 20 years experience in personal injury and law enforcement.
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There are two paths to go after the company for a merchant

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There are two paths to go after the company for a merchant seaman in an injury/tort case. The Jones Act and Admiralty (general maritime) law. My remedy under the Jones Act requires negligence. Under general maritime law it is called "Maintenance and cure" and is the equivalent of workers comp - thus no negligence need be shown. I assume that if I plead this, I would present both admiralty law and the Jones Act? If you remember, I became ill in China and was not given prompt or adequate medical care (Chinese medicine - no instruction on how much to take or what it was), refused medical treatment and confined to ship (false imprisonment etc. By the way, may have to do this myself because many lawyers feel that this would be too "litigation intensive" - a slip and fall, bulging disc, surgery and recovery is much easier to settle :)
Submitted: 1 year ago.
Category: Personal Injury Law
Expert:  Wendy-Mod replied 1 year ago.
Hi, I am a moderator for this topic. I've been working hard to find a professional to assist you right away, but sometimes finding the right professional can take a little longer than expected.

I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.


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Wendy
Customer: replied 1 year ago.
I will wait. How about legapro54?
Expert:  Wendy-Mod replied 1 year ago.
Thank you for your patience. I have asked LegalPro54 if he will be able to help you.

Regards,
Wendy
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question I look forward to working with you to provide you the information you are seeking.

Under admiralty, you would pursue this type of case for failure to provide maintenance and cure and also failure to repatriate if it was required and unless you have negligence of the employer it would not be under the Jones Act. It would require you to use an attorney who specializes in Admiralty claims, not a general workers compensation attorney who would claim this to be "too litigation intensive" because they do not know any better.

You would have to bring this as a maintenance and cure action if no negligence can be shown on the ship owner or captain as required under a Jones Act claim. If you can prove the captain or owner sent you to this doctor as their agent or provided you this medication in a negligent manner without instruction, this would be negligence sufficient to come under a Jones Act claim as the ship owner would be liable for the negligence of their agents as well as their captain and crew or their ship.

In federal court, you are allowed to pursue an action under alternative remedies, which means you can pursue it under maintenance and cure as well as under a Jones Act claim and attempt to prove this was negligence on behalf of the ship owner or through their agents.




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Law Educator, Esq., Attorney
Satisfied Customers: 89320
Experience: Licensed Attorney. Over 20 years experience in personal injury and law enforcement.
Law Educator, Esq. and other Personal Injury Law Specialists are ready to help you
Customer: replied 1 year ago.


Thank you for your answer. As far as proof - I have the packages of medication with the instructions in Chinese - I also have the Master's slip requesting medical attention. Under treatment it says "eat some medicine." After being returned to the ship from doctor - still coughing up blood - captain/second mate refused to send me back to doctor - I had to threaten to call the American Embassy before they called stateside doctor. Then gave me prednisone and left me in my room for three day without checking on me or allowing me to return to hospital in China. Would you consider a case like this? Is this allowed under the rules of this site? I have a law degree - do you think this would be too complicated for me - top of my class :)

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response. The question they will look at would be first if the captain or ship owner selected the doctor for you, if they did then the doctor is their agent and providing a non Chinese speaking patient instructions in Chinese would be negligence generally. It would likely be considered also to be negligent for refusing you continued medical care when you were getting sicker and likely sufficient negligence under the Jones Act to sustain that claim.

I do not know it would be too complicated for you, but admiralty/maritime law is a very specific sub-specialty in law and while you might be able to make it through on your own it is usually best to have an attorney who actually specializes in that narrow sub-specialty.

Unfortunately, the site rules do forbid us from taking cases from customers of this site, so that is not something I could do.
Law Educator, Esq., Attorney
Satisfied Customers: 89320
Experience: Licensed Attorney. Over 20 years experience in personal injury and law enforcement.
Law Educator, Esq. and other Personal Injury Law Specialists are ready to help you
Customer: replied 1 year ago.

In a maintenance and cure claim in admiralty - would it be necessary for me to prove that failure to provide adequate medical care (medications written in Chinese - refusal to return me to doctor when I became worse) made my condition worse i.e. bring in expert witness - or can I just assert that not giving me medication I can read or further medical attention in a timely manner obviously made my condition more difficult?

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

You would have to prove harm occurred from not receiving proper medical treatment, since proof of harm is required to show you were damaged.
Law Educator, Esq., Attorney
Satisfied Customers: 89320
Experience: Licensed Attorney. Over 20 years experience in personal injury and law enforcement.
Law Educator, Esq. and other Personal Injury Law Specialists are ready to help you
Customer: replied 1 year ago.


Isn't harm assumed when you are given medicine you can not read - i.e. delay in treatment and prolonging suffering?

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response. In law, harm is never really assumed and prolonged suffering is something you still have to prove by showing the symptoms and what caused them. So in a sense delay in treatment in that regard can lead to damages, but you still have to prove them and they cannot be presumed.
Law Educator, Esq., Attorney
Satisfied Customers: 89320
Experience: Licensed Attorney. Over 20 years experience in personal injury and law enforcement.
Law Educator, Esq. and other Personal Injury Law Specialists are ready to help you

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