In 1975, the Supreme Court last spoke regarding the maximum medical improvement (MMI) defense in Maintenance and Cure with Vella v. Ford Motor Co.1 On April 4, 1968, Vella, a seaman aboard a Great Lakes vessel, slipped and fell on an oily floor plate striking his head on an electrical box while replacing an engine room deck plate. At his trial, on April 27, 1972, an otolaryngologist testified that the plaintiff’s condition, a vestibular disorder which damaged the balancing mechanism of the inner ear, could have been caused by the blow to the head and that it was incurable. The case came before a district court jury which awarded the seaman Maintenance and Cure in the amount of $5,848. The ship-owner moved for a judgment notwithstanding the verdict on the ground that the award was not within the permissible scope of Maintenance and Cure. The district court denied the motion stating that Maintenance and Cure continues until such time as the incapacity is declared to be permanent. The Court of Appeals for the Sixth Circuit reversed.2 The Supreme Court reversed the court of appeals.3
Mr. Justice Brennan writing for the Court pointed to the humanity of the maritime law’s Maintenance and Cure doctrine and its effect of giving the seamen a sure remedy devoid of most of the exceptions and delays which ordinarily hamper or defeat illness and injury claims. The Court stated:
“That denial of Maintenance and Cure when the seaman’s injury, though in fact permanent immediately after the accident, is not medically diagnosed as permanent until long after its occurrence would obviously disserve and frustrate the “combined object of encouraging marine commerce and assuring the well-being of seamen.” A ship-owner might withhold vitally necessary Maintenance and Cure on the belief, however well or poorly founded, that the seaman’s injury is permanent and incurable. Or the seaman, if paid Maintenance and Cure by the ship-owner, might be required to reimburse the payments if it is later determined that the injury was permanent immediately after the accident. Thus uncertainty would displace the essential certainty of protection against the ravages of illness and injury that encourages seamen to undertake their hazardous calling. Moreover, easy and ready administration of the ship owner’s duty would seriously suffer from the introduction of complexities and uncertainty that could ‘stir contentions, cause delays, and invite litigations.”4
Recently, a string of cases in federal district courts across the country have started to push the cure MMI yet again, in favor of protecting the seaman. In July 1996, the United States District Court for the Southern District of Florida in Costa Crociere v. Rose,5 circumvented the Supreme Court’s permanency rule when it denied a ship owner’s request to terminate Maintenance and Cure for a seaman diagnosed with an incurable and permanent kidney disorder.6 The issue in Costa Crociere was whether the ship-owner remained obligated to pay for the seaman’s dialysis treatment, or a possible organ transplant, since the seaman had reached the point of maximum medical improvement as defined by Vella.7 Refusing to be restricted by the permanency confines of Vella, the Costa Crociere court declared that a ship owner’s obligation to provide Maintenance and Cure should continue until it has been medically determined the injured or ill seaman can no longer improve his overall medical condition, and not just the specific disease or ailments from which he suffers.8 The Costa Crociere decision marked the Florida court’s first exploration of the doctrine of Maintenance and Cure in the context of an incurable, life threatening disorder.9
Haney v. Miller’s Launch, Inc.10 is a revolution in cure application for pain out of the Eastern District of New York that may set forward thinking for many courts. The vessel in question struck a bulkhead, thrusting the Plaintiff to the deck injuring his back and neck. The Court recognizes that the traditional view is that medical treatment solely to reduce pain and suffering does not fit within the definition of cure. This court held that, in the view of modern medicine and in terms of contemporary views of the public, pain amelioration is a part of cure and should require or subject the employer to provide the cost of “palliative medical attention to reduce pain, even after physical injuries have been corrected to the extent practicable.”11
In Mabrey v. Wizard Fisheries, Inc.,12 a deckhand alleged that he was afflicted with carpel tunnel syndrome, a dislocated shoulder and a torn knee meniscus all while in the service of the vessel. The Western District of Washington held that a ship-owner is required to pay for the plaintiff’s pain management treatment and ongoing mental health care as related to the seaman’s injury until it is determined that the plaintiff has reached maximum medical cure. The defendant had argued that the pain management treatment is palliative and not part of its cure obligation. In rejecting the argument that the cost of palliation should be segregated and excluded, the court relied on a statement by the First Circuit in In re RJF Intern. Corp. for Exoneration from or Limitation of Liability:13“Some segregation would be silly—imagine excluding pain medicine from the setting of a broken bone …”
We will review the facts of these cases and more of the recent cases out of each Circuit Court of Appeals in an analysis of the current standing of the maintenance and cure law in our federal courts. However, it appears the most difficult issue is presented when a patient has reached the maximum medical cure in the sense that his condition cannot be improved further, but the failure to continue to provide treatment will result in a worsening of his condition. Does the duty to cure include measures needed to prevent deterioration? Suppose without treatment, such as dialysis treatment, the patient will die, but his condition is incurable in the sense that neither dialysis nor any other treatment will cure or improve his condition? If the alleviation of pain improves a patient’s life is that curative? While it may seem that Cure’s MMI is a set premise it appears that the courts may be converting to a new understanding of what Maintenance and Cure truly means.
II. Overview of the Doctrine of Maintenance and Cure
It is a longstanding rule of maritime law “that when a seaman becomes ill or suffers an injury while in the service of a vessel, he is entitled to Maintenance and Cure.”14 “Maintenance” represents the seaman’s right to food and lodging, while “cure” includes the right to necessary medical expenses.15 Both of these benefits are available to the seaman until he reaches “maximum recovery,” or “maximum cure.”16
A. Historical Origin
The doctrine of Maintenance and Cure derives from ancient maritime codes such as the Laws of Oleron,17 the Laws of Wisbuy,18 the Law of the Hanse Towns,19 and the Marine Ordinances of Louis XIV.20 According to the ancient Laws of Oleron, when “sickness seizes on any one of the mariners, while in the service of the ship, the master ought to set him ashore, to provide lodging and candlelight for him, and also to spare him one of the ship-boys, or hire a woman to attend him.”21
The obligation to provide Maintenance and Cure first appeared in American maritime common law in Harden v. Gordon.22 In Harden, Justice Story concluded that such a policy would benefit not only seamen, but ship-owners and the country as well.23 Justice Story reasoned that the doctrine of Maintenance and Cure would increase the willingness of seamen to put to sea at low wages and at the same time strengthen the bond between seamen, their ship, and their country, while simultaneously insuring ship owners’ interest in the welfare of their crews.24 Regardless of the truth of his projection, it is evident that seamen have reaped a great benefit from Justice Story’s decision.25
B. Persons Entitled to Maintenance and Cure
The right to Maintenance and Cure may be asserted by anyone classified as a Jones Act seaman.26 The Jones Act, details that this classification includes any employee who has a connection, substantial in both duration and nature, to a vessel or identifiable group of vessels in navigation.27 The employee must also “‘contribute to the function of the vessel or to the accomplishment of its mission.” ’28 The right to qualify for Maintenance and Cure has “been granted to, among others, hairdressers, horsemen, bartenders, musicians and barbers.”29 However, to receive Maintenance and Cure, the seaman must suffer an injury or illness during the course of his employment.30
The illness or injury does not have to result from performing specific duties on the vessel as long as it occurs while the seaman is “in the service of the vessel.”31 Regardless of his location, a seaman is considered to be in the service of the vessel as long as he is answerable to the call of his employer.32
C. Duration and Extent of Benefit
The traditional rules surrounding Maintenance and Cure held that the benefit was available only until the end of the voyage or until the contract of employment terminated.33 However, in 1938 the Supreme Court changed the rule in Calmar Steamship Corp. v. Taylor.34 In Calmar, Justice Stone stated:
“It is plain that in many cases these purposes [to provide for the unfortunate seaman and to induce him to accept maritime employment] will not be accomplished if the owner’s duty to furnish Maintenance and Cure ends with the voyage. If the injury or illness outlasts it, the seaman may still be left helpless and uncared for in a foreign port. Even if he is returned to the home port the inducement to the owner to care for the health and safety of seaman during the voyage and the inducement to seamen to take the necessary risks of a hazardous calling will be materially lessened. The chances of their prompt restoration to a service, whose preservation is in the public interest, will be diminished if the right to Maintenance and Cure ends with the voyage.”35
Justice Stone continued by stating that “the right to Maintenance and Cure [should be continued] for a reasonable time after the voyage … ‘reasonable time’ being appraised with reference to the special circumstances of each case.”36
Eleven years after Calmar, the United States Supreme Court revisited the issue of Maintenance and Cure in Farrell v. United States.37 In Farrell, the Court stated that Maintenance and Cure payments are due to a seaman only until he reaches a maximum cure.38The justification for this limitation was given by Justice Jackson:
“Maintenance and Cure is not the only recourse of the injured seaman. In an appropriate case he may obtain indemnity or compensation for injury due to negligence or unseaworthiness and may recover, by trial before court and jury, damages for partial or total disability. But Maintenance and Cure is more certain if more limited in its benefits. It does not hold a ship to permanent liability for a pension; neither does it give a lump-sum payment to offset disability based on some conception of expectancy of life.”39
Thus, the duty to provide Maintenance and Cure exists until maximum medical improvement is reached,40 or until it is determined that the condition has been cured or that it is incurable or of a permanent character.41 Cure, however, does not extend to alleviating symptoms of the condition; only to its actual improvement.42 Maintenance and Cure payments for treatments which only arrest further progress of the disease, or are merely palliative treatments, have been rejected by the courts after a seaman has reached the point of total disability.43 However, if a seaman has been found to have reached maximum cure such that Maintenance and Cure benefits have stopped, the seaman may reassert a demand for benefits if new medical techniques become available that will improve his condition.44
An employer has four possible defenses against a claim for Maintenance and Cure. First, the employer may assert that the seaman’s injury or illness is the result of engaging in willful misconduct.45 Second, the employer may show that the seaman failed to disclose a preexisting illness.46 Third, the employer may argue that at the time of incurring the injury or illness, the seaman was not in the service of the vessel.47 Fourth, the employer may argue that the seaman has reached maximum medical cure.48
1. Willful Misconduct
When illness or injury is caused solely by the willful misconduct of the seaman, regardless of when the willful misconduct occurred, the employer will escape liability for Maintenance and Cure.49 Historically, such instances of willful misconduct have been limited to injuries or illnesses resulting from extreme drunkenness or alcohol abuse,50 or from the contraction of venereal disease.51 Although intoxication was, at one time, considered willful misconduct, it can now be thought of as “a classic predisposition of sailors ashore,”52 thus removing it from the list of activities constituting willful misconduct.53 However, intoxication can still arise as willful misconduct if an element of willfulness is shown.54
Even though a valid argument can be made that contraction of a venereal disease is analogous to intoxication in that it springs from classical predisposition of sailors ashore, no court has ever allowed Maintenance and Cure for such an illness.55 Justice Rutledge, in Aguilar v. Standard Oil Co.,56 pronounced that “[o]nly some willful misbehavior or deliberate act of indiscretion suffices to deprive the seaman of his protection . . . . [One of] [t]he traditional instances [is] venereal disease.”57 Justice Rutledge’s position still stands as the final word on the subject.
2. Failure to Disclose Preexisting Illness
If a seaman knowingly conceals an illness or injury when entering the employment of a vessel, “he may be denied Maintenance and Cure if the malady becomes aggravated during the course of the voyage.”58 However, the rule does not apply “if the seaman had a latent physical defect and was without reasonable grounds to anticipate a manifestation of its disabling effect [while in the service of the ship].”59
3. In the Service of the Ship
A seaman asserting a claim for Maintenance and Cure must prove that the injury arose, or that the illness manifested itself, during the seaman’s service of the ship.60 If an injury or illness arises or manifests prior to employment, or at a time when the seaman is not subject to the call of the ship, the employer has no duty to provide Maintenance and Cure.61
4. Maximum Medical Cure
An employer’s duty to provide Maintenance and Cure does not extend indefinitely.62 When the injury or illness is diagnosed as incurable, regardless of whether the injured seaman will need to continue with periodic examinations and treatments for life, the employer’s duty to provide Maintenance and Cure ends.63
As a defense, maximum medical improvement rest upon the definition imposed by an expert physician in the determination of whether the seaman can medically improve or further treatment is purely palliative. Many times the levels/types of care are intertwined and what that maximum level is could be difficult to determine.
III. Maximum Medical Improvement
The defense of maximum medical improvement will be used by nearly every employer once the seaman has established his right to Maintenance and Cure. The maximum medical improvement will cut off the payment of Cure; however the burden of proof shifts to the ship-owner to demonstrate that the seaman has reached the point of maximum medical improvement.64 Maximum medical improvement is a medical determination, not a legal one;65 and, as a matter of procedure, the rule requires the ship-owner to seek a declaration stating the seaman has reached the point of maximum medical cure from the seaman’s treating physician.66 The ship-owner must then file an action under the Declaratory Judgment Act67 to determine whether he can terminate the seaman’s benefits.68
A. Paving the Road from Reed to Vella
Throughout history, courts have adopted various formulations of maximum medical improvement.69 In 1832, the Circuit Court for the District of Massachusetts in Reed v. Canfield70 established the majority rule, which lasted more than a century. In Reed, a seaman suffered frostbite while rowing to shore from the defendant’s ship.71 In determining when the obligation to provide Maintenance and Cure should cease, the court declared in dicta72 that the ship-owner was “liable only for expenses necessarily incurred for the cure; and when the cure is completed, at least so far as the ordinary medical means extend, the ship-owners are freed from all further liability.”73 The decision in Reed, however, was not universally recognized.74 Other courts held that a ship owner’s duty to provide Maintenance and Cure extended no longer than the seaman’s right to wages under his employment contract.75
In 1938, the United States Supreme Court in Calmar S.S. Corp. v. Taylor76 temporarily resolved this debate by declaring Maintenance and Cure should continue for a “fair time” after the voyage.77 The seaman in Calmar was diagnosed with Buerger’s Disease, an incurable and fatal disease affecting the veins and arteries.78 Faced with the issue of whether the ship-owner was obligated to provide a lump sum payment to finance the seaman’s medical treatment for the remainder of his life, the Court determined “the award of a lump sum in anticipation of the continuing need of Maintenance and Cure for life or an indefinite period is without support in judicial decision.”79 The Court reasoned that lump sum payments were difficult to calculate; and, in the case of Buerger’s disease, such determinations could not be measured by reference to mortality tables.80 The Court also cautioned that an improvident seaman might be induced to spend his award on things unrelated to medical care81; and the Court concluded, “we can find no basis for saying that, if the disease proves to be incurable, the duty extends beyond a fair time after the voyage in which to effect an improvement in the seaman’s condition as reasonably may be expected to result from nursing, care, and medical treatment.”82
While the Supreme Court in Calmar attempted to clarify the ambiguities “concerning the duration of a ship owner’s obligation to provide Maintenance and Cure, the Court’s use of such words as fair and reasonable still failed to provide a definitive solution to the problem.”83 In 1949, however, the Supreme Court clarified the duration issue in Farrell v. United States84 where a seaman suffered both total and permanent blindness and post-traumatic epileptic convulsions after falling into a dry-dock.85 Confronted with the inevitable consequence of the seaman requiring medication to ease headaches and epileptic convulsions for the remainder of his life, the Court upheld the lower court’s determination that “the duty of a ship-owner to furnish Maintenance and Cure does not extend beyond the time when the maximum cure possible has been effected.”86 On reaching its decision, the Court relied on Article IV of the Ship owner’s Liability Convention,87 limiting a ship owner’s liability to the time at which the ill or injured seaman has been cured, or until his disease or injury is declared permanent.88
Article IV of the Ship owner’s Liability Convention was not the only factor considered by the Court in Farrell. In addition, the Court also reasoned that Maintenance and Cure was intended to provide only limited benefits to the seaman,89 and “does not hold a ship[owner] to permanent liability for a pension; neither does it give a lump sum payment to offset disability based on some conception of life expectancy.”90
The Court emphasized that Maintenance and Cure was not the only recourse available to the injured seaman.91 Under the appropriate circumstances, the Court suggested, a seaman could obtain indemnity or compensation for his injuries through the Jones Act, or on a claim for unseaworthiness.92 Consequently, the Farrell Court denied the injured seaman’s claim for future benefits, even though it recognized that he would require treatment for the remainder of his life.93
Finally, as previously discussed, in 1975 the Supreme Court in Vella v. Ford Motor Co.94 reaffirmed Farrell and examined how best to determine the point of maximum medical improvement.95 The Vella Court considered how to determine the point of maximum medical improvement.96 Concerned that a ship-owner might withhold needed benefits based on the mistaken belief the seaman had reached maximum cure, when in fact the seaman was still susceptible to curative treatment, the Court suggested maximum medical improvement should be determined pursuant to a medical diagnosis of permanency.97 The Court reasoned a ship owner’s denial of Maintenance and Cure, when the seaman’s injury, though permanent at the time of the accident “is not medically diagnosed as permanent until long after its occurrence, would obviously disserve and frustrate the combined object of encouraging marine commerce and assuring the well-being of seamen.”98
Currently, the United States Supreme Court stands for the proposition that a ship owner’s duty to provide Maintenance and Cure terminates once the seaman’s condition is either cured or diagnosed as permanent.99 Lower court application of the permanency standard has proven somewhat difficult, especially since injuries and ailments are often distinct and susceptible to different forms of treatment.100 Lower courts which are often confronted with this type of situation, have found it necessary to evaluate each case on a fact-specific basis.101 Consequently, while the line of cases extending from Reed to Vella may have paved the road to require a diagnosis of permanency in maximum medical improvement determinations, lower court application of the permanency rule has clearly created a minor revolution of cure.
IV. Survey of the U.S. Federal Circuit Courts of Appeal
The most recent first circuit case is Whitman v. Miles, decided in 2004.102 On July 17, 2000, while working as a cook on a Miles ship, the S/V Timberland, Whitman had to be driven to a hospital after falling several times on the ship, burning herself while cooking, and experiencing other symptoms including fatigue, cold, numbness, and incontinence.103 Following an MRI, Whitman was diagnosed with multiple sclerosis (“MS”), an autoimmune disease that causes a person’s immune system to attack healthy tissue in the body.104 Testimony revealed that treatment would, at best, slow or arrest the progression of her MS, but would not reverse her symptoms or improve her condition beyond the point of maximum medical recovery.105
Whitman further argued that her depression is a distinct ailment from her MS, giving rise to its own claim for Maintenance and Cure, however the Court ruled that she has failed to produce any evidence that she began to suffer from depression while in the service of the ship, an element on which she would have the burden of proof at trial.106 Further, the alternative argument that Whitman’s depression is a symptom of her MS would not alter her eligibility for Maintenance and Cure as then it would not be a curative treatment.107
The Court concluded that palliative treatment or curative treatment for subsequent manifesting illnesses is not covered.108 Further, the Court deemed that a physician does not have to use the magic words “permanent” or “incapable of being improved” to terminate cure in a diagnosis for a disease that is clearly incurable.109
Messier, a career tugboat seaman, was assigned to work on a Bouchard vessel called the Tug Evening Mist.110 The Plaintiff claimed that on the evening of October 23, 2005, while in service, he fell climbing down a ladder, and suffered back pain.111 He sought medical care, and was diagnosed with a “probable back sprain.”112 Messier’s back injury was apparently minor, and the pain associated with it quickly subsided. But the resulting medical examinations revealed B-cell lymphoma.113
The court found that the obligation to provide Maintenance and Cure does not furnish the seaman with a source of lifetime or long-term disability income.114 As a seaman is entitled to Maintenance and Cure only until he reaches maximum medical recovery.115 Put another way, Maintenance and Cure continues until such time as the incapacity is declared to be permanent. However, when a seaman has reached the point of maximum medical cure and Maintenance and Cure payments have been discontinued, the seaman may nonetheless reinstitute a demand for Maintenance and Cure when subsequent new curative medical treatments become available.”
As the Court of Appeals for the Second Circuit appears not to have specifically ruled on whether payments to relieve pain and suffering are appropriate under the Maintenance and Cure doctrine a lower district court took up the torch in the previously described Haney v. Miller’s Launch, Inc. What follows is the verbatim dictum, with appropriate commentary, regarding palliative care from the Court resulting in its revolutionary decision for a modern age:
“On occasion courts in this circuit have held that a sailor was entitled to curative, but not palliative treatment for pain. Those decisions rely on precedent that is somewhat ambiguous on the issue. See, e.g., McMillan, 885 F.Supp. at 461 (“The rule of law which must be applied in this Circuit dictates that as long as the seaman’s condition is susceptible to curative as opposed to palliative treatment, the ship-owner is liable for Maintenance and Cure.”) (citing Berke v. Lehigh Marine Disposal Corp., 435 F.2d 1073, 1076 (2d Cir.1970)); Desmond v. United States, 217 F.2d 948, 950 (2d Cir.1954), cert. denied, 349 U.S. 911, 75 S.Ct. 600, 99 L.Ed. 1246 (1955); Vella v. Ford Motor Corp., 421 U.S. at n. 4, 95 S.Ct. 1381; Nasser, 191 F.Supp.2d at 317 (allowing payment for “all reasonable medical curative (i.e. not palliative) expenses incurred”, citing McMillan, supra, at 461).
The Supreme Court has not squarely addressed the issue of whether “cure” encompasses palliative care. In Vella the Court held that a ship owner’s duty to provide Maintenance and Cure ends when medical diagnosis is made that the seaman’s injury was permanent and incurable. 421 U.S. at 5–6, 95 S.Ct. 1381. It expressly reserved decision on the issue of payment for pain and suffering. “[I]t is not necessary to address the question whether the jury award might also be sustained on the ground that the ship owner’s duty in any event obliged him to provide palliative medical care to arrest further progress of the condition or to reduce pain, and we intimate no view whatever upon the ship owner’s duty in that regard.” Id. at 6, n. 4, 95 S.Ct. 1381; see also Farrell v. United States, 336 U.S. 511, 69 S.Ct. 707, 93 L.Ed. 850 (1949) (permanently disabled seaman not entitled to Maintenance and Cure payments after his condition was diagnosed as hopeless).”116
The Court takes clear recognition of the perceived modern standard of no Cure for palliative treat from the Supreme Court and flips it on its head. The Court proceeds to state that the understanding that palliative care is not covered is simply wrong. The Supreme Court has not ruled on that issue and has explicitly rejected the opportunity to clarify their position.
”In Berke, the Court of Appeals for the Second Circuit held that treatment for aggravated bronchitis was not part of the vessel owner’s “cure” obligation because it would only “relieve the symptoms but would not permanently improve the condition.” 435 F.2d at 476. Though it considered and rejected the Third Circuit’s now overruled position that “cure” covers payments for pain relief, see id. n. 3, the Court of Appeals for the Second Circuit issued no specific holding regarding the validity of payments for pain and suffering.
Maintenance and Cure, on the grounds that a condition was incurable, were denied in Desmond, 217 F.2d at 950 (“If incurable, the ship-owner has no further liability, whether or not the patient requires additional treatment to restrain degeneracy or relieve pain.”); see also Lindgren v. Shepard S.S. Co., 108 F.2d 806, 807 (2d Cir.1940) (reversing judgment for Maintenance and Cure since treatments to prevent relapse do not “effectuate further cure”); Muruaga v. United States, 172 F.2d 318, 321 (2d Cir.1949) (reversing a judgment for Maintenance and Cure to a victim of an incurable cardiovascular disease because treatment has provided “all the improvement to be expected in an incurable disease”).
Apparently in the Second Circuit where a defendant’s negligence aggravates a plaintiff’s preexisting condition (causing plaintiff to experience new pain); defendant is liable in full for the treatment of the resulting pain. See Milos v. Sea–Land Serv. Inc., 478 F.Supp. 1019, 1023 (S.D.N.Y.1979), aff’d without op., 622 F.2d 574 (2d Cir.1980).
Courts in other circuits have held that treatment to relieve pain is “palliative” and does not support Maintenance and Cure payments since reduction of pain or its intensity does not affect the underlying medical problem. See, e.g., Whitman v. Miles, 387 F.3d 68 (1st Cir.2004) (“[T]reatment that is more than simply palliative, and would improve [the seaman’s] medical condition … is enough to support an award of Maintenance and Cure in aid of permanent improvement short of a complete cure. (internal quotations and citation omitted)”); Cox v. Dravo Corp., 517 F.2d 620, 627 (3d Cir.1975) (overruling Neff v. Dravo Corp., 407 F.2d 228 (3d Cir.1969)) (vessel and cargo owner are not required to insure against the cost of palliative or preventive care); Stanovich v. Jurlin, 227 F.2d 245, 246 (9th Cir.1955) (holding “palliative” is not covered by* meaning of “cure” since it is defined as “to ease without curing”); Lopinto v. Crescent Marine Towing, No. Civ.A. 02–2983, 2004 WL 1737901, 2004 U.S. Dist. Lexis 13405 (E.D.La. Aug. 2, 2004); Sefcik v. Ocean Pride Alaska, 844 F.Supp. 1372, 1373 (D.Alaska 1993) (“A vessel owner must only pay for curative, as opposed to palliative, medical treatment.”); see also, e.g., Robert Force, Admiralty and Maritime Law 90 (Fed. Jud. Center 2004) (citing Farrell v. United States, 336 U.S. 511, 69 S.Ct. 707, 93 L.Ed. 850 (1949), for the proposition that “an employer has no obligation to provide Maintenance and Cure payments for palliative treatments that arrest further progress of the condition or relieve pain once the seaman has reached the point of total disability”); Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty 299 n. 52b (2d ed. 1975) (“ ‘Cure’ in the phrase ‘Maintenance and Cure’ originally meant ‘care.’ One of the odd by-products of the Farrell case is that the meaning of ‘cure’ has now shifted to that of recovery from disease or injury.”). Gilmore and Grant explain that Farrell does not create, any time limit on the duration of the ship owner’s liability, so long as there is a chance of improvement in the claimant’s condition. The majority opinion in Farrell seems to take the position that ‘cure’ means improvement, or the possibility of improvement, and that Farrell could not recover medical expenses necessary to maintain him in his present condition without further deterioration. Id. at 299.”117
Obviously, the Court must pay homage to vast amount of rules proactively disregarding certain care as being palliative and therefore not curative. However, as is also cited and that we have seen and will continue to see, medical care is intertwined and the treatment of pain and other defined palliative treatments are classified as necessary and not optional. The Court establishes the lack of uniformity within this area of maritime law.
“Current general medical practice raises doubts about these hoary limitations on medical treatment to alleviate the kind of persistent pain and suffering Haney is allegedly experiencing. New theories on medical treatment for pain relief, and an evolving sense of the importance to doctors and patients of well-being and quality of life issues, include pain management. Palliative care is now encompassed in the notion of recovery and maximum improvement. The medical profession has a specialty for pain medicine and an association dedicated to fostering advocacy, research and training in the field. See American Academy of Pain Medicine (“AAPM”) (representing physicians practicing in pain medicine). The AAPM notes that “[t]he practice of pain medicine is multi-disciplinary in approach, incorporating modalities from various specialties to ensure the comprehensive evaluation and treatment of the pain patient.” See AAPM, Mission Statement, available at http://www.painmed.org/ (last visited Nov. 15, 2010) (indicating that pain medicine crosses numerous fields including anesthesiology, internal medicine, neurology, neurological surgery, orthopedic surgery, physiatry (rehabilitation physicians who treat nerve, muscle, and bone injuries), and psychiatry). Physicians note that “[p]ain is one of the most common reasons people seek medical care.” Richard M. Mularski et. al., Measuring Pain as the 5th Vital Sign Does Not Improve Quality of Pain Management, 21 J. of Gen. Internal Med. 607, 607 (2006) (“[C]hronic pain has been estimated to be under treated in up to 80% of patients in some settings.”). “Uncontrolled pain not only results in unnecessary suffering, but compromises the care of underlying diseases and can lead to depression, decreased enjoyment of life, and less productivity.” Id.
When a patient is assessed for treatment at a medical facility it is now standard practice to measure the individual’s pain along with his temperature, pulse, respirations and blood pressure. See Veterans Health Admin., Directive 2009–053: Pain Management, available at http://www1.va. gov/PAINMANAGEMENT/docs/VHA09PainDirective.pdf (last visited Nov. 15, 2010) (discussing “Pain as a Fifth Vital Sign” initiative); see also Mularski et al., supra, at 611 (“Additional interventions are needed to improve providers [sic] awareness of patients’ pain and to increase the rates at which they provide appropriate therapy.”). See also, e.g., American Academy of Pain Management, Assessing and Treating Low Back Pain An Interview with Bruce Nicholson M.D., 15 The Pain Practitioner 3, 17–21 (Fall 2005) (discussing numerous treatment options for back pain including medical, surgical and other non-invasive therapies); Sepulveda et. al., Palliative Care: The World Health Organization’s Global Perspective, 24 J. of Pain and Symptom Mgmt. 2 (Aug. 2002) (discussing importance of developing palliative care systems to improve quality of life of sick and injured); Pub. L. No. 106–386 (Oct. 28, 2001) (declaring the calendar decade beginning in January 1, 2001 the Decade of Pain Control and Research).”118
The remedy of Cure is one of a medical nature. In order to understand the need, role, and appropriateness of such care is not for a ship owner, Congress member, or Judge to make. It is and should be the role of a medical professional. If a medical professional should make the diagnoses and prescribe a remedy for his patient, who are we, as medical layman, to tell that patient he is not entitled to coverage for the necessary care.
“One problem with compensation for pain is that so much of it is subjective and incapable of a precise objective evaluation. See, e.g., Marcia L. Meldrum, A Capsule History of Pain Management, 290 J. of the Am. Med. Assoc. No. 18, Nov. 12, 2003 at 2470 (2003) (“Pain is a complex clinical problem. Assessment depends on verbal report, and the patient’s physical perceptions may be modified by cognitive and affective factors.”).
The cost of maritime insurance may possibly be increased by a change of law to include pain alleviation in “cure.” The same issue exists with respect to compensation for injuries and tort law generally. There appears no reason why adequate control against excessive recoveries cannot be provided in admiralty cases.
Whether pain is included in medical treatment may be a question of fact for the jury. It is time to reconsider the old rule, now out of the main stream of medical practice. In any event, the probable need for further surgery suggests that in the instant case treatment may not have been completed even in its traditional sense.”119
In true legal fashion, the Court concludes with the core concern for all potential defendants – money. How do you know how much to pay, insurance may go up, and the all-important overarching concern of profits may go down. The Court attempts to nullify these concerns; instead the true test is that of a balancing test. As Cure is not an at-fault system, is it fair for the employer to be held responsible for full payment of all care? In a modern age, the tradition of Cure may be old fashioned, but until Congress decides to act the Courts are only free to interpret and rule.
Haney v. Miller’s Launch, Inc., may turn out to be the case that forces action to occur on the conversion of the mentality that palliative care is not curative. As discussed, the care of a patient is often intertwined and not easily separated. If the court allows an employer to classify medical care and defund the treatment plan the implications may result in a disastrous regression of the patient’s ultimate maximum cure potential.
Plaintiff William O’Connell was employed as a merchant seaman aboard the M/V Gopher State, a vessel owned by the United States Maritime Administration (“MARAD”) and operated by defendant Interoceanic Management Corporation (“IOMC”), as an agent for the United States.120 On July 19, 1991, onboard the Gopher State, O’Connell accidentally severed the tendon in his left little finger while operating a grinding wheel.121 Despite two surgical procedures and a skin graft, O’Connell will never regain full use of his little finger, which is permanently deformed.122
The court did not enter into the discussion of what is the role of palliative; however they did rule that an employer’s obligation to furnish Maintenance and Cure continues “until the seaman has reached the point of maximum cure, that is until the seaman is cured or his condition is diagnosed as permanent and incurable.”123
On August 13, 2008, the Asian Spirit was navigating in the Chesapeake Bay en route to the Port of Baltimore where it was scheduled to load a cargo of motor vehicles.124 Plaintiff Aggarao was working to raise floor panels in the ship in preparation for receipt of the cargo load.125 As the crew began raising the floor panels, Aggarao was crushed between a deck lifting machine and a pillar.126
While the court does not address MMI within the dicta of its order, they do note it in the footnotes. They cite the general maritime law in stating that a seaman’s fitness for repatriation is not determinative of his right to Maintenance and Cure; rather, the obligation to provide Maintenance and Cure persists until he “attains ‘maximum cure,’ defined as the point at which he is either cured or his condition is diagnosed as permanent and incurable.127 Interestingly the court went on to say that even in cases of permanent disability, Maintenance and Cure is required where palliative care would improve the seaman’s condition.128
Plaintiff Alario alleges that, while employed as a cook by OSV aboard the C–ESCORT, she fell and hit her arm and shoulder; leading to arm, neck, and shoulder pain.129 She received orthopedic treatment for these injuries, including surgery and physical therapy, but continued to complain of pain.130
The court declared that maximum cure is achieved when it appears probable that further treatment will result in no betterment of the seaman’s condition, a determination that would be appropriate if the seaman’s injury is incurable or future treatment would merely relieve pain and suffering, but not otherwise improve the seaman’s physical condition.131 Palliative treatment alone is insufficient to demonstrate an entitlement to continued Maintenance and Cure.132
Plaintiff alleged that while he was handling the tow lines and traversing the deck of the tug “Louisiana,” he slipped and fell because an area of the deck did not have adequate non-skid material causing Plaintiff to suffer serious and permanent disabling injuries to his low back with radiculopathy into his lower extremities.133
In the decision it was stated that the employer of an injured seaman must continue to pay Maintenance and Cure until the seaman reaches MMI.134 MMI can be reached in three ways: a seaman may fully recover from his injuries, his injuries have been diagnosed as permanent, and/or the injured seaman has not fully recovered, but his functional ability cannot be improved.135 The court clarified that if future treatment will merely relieve pain and suffering, but not otherwise improve the seaman’s physical condition, it is proper to declare that the point of maximum cure has been achieved. However, that is a medical not judicial determination of permanency that terminates a right to Maintenance and Cure.136
The court held that even in the case of a diagnosis of permanent impairment, when further treatment beyond that which is merely palliative can result in a permanent improvement short of a complete cure, it is enough to support an award of Maintenance and Cure.137 Thus, a classification of palliative care is covered; care that is palliative but leads to partial cure. It appears that the court is converging palliative and curative into a single system of medical care. Unfortunately, there is not a 6th Circuit Appeals Decision on the topic.
The district court, found in a summary judgment hearing that a plaintiff was entitled to cure because the medical treatment is clearly related to the work injury and aimed at resolving pain at the injury site so that the soft tissue has an opportunity to relax and heal.138The Court also cited law which held where it appears the seaman’s condition is incurable, or that future treatment will merely relieve pain and suffering but not otherwise improve the seaman’s physical condition, it is proper to declare that the point of maximum cure has been achieved.139
In the case above, there were doctor reports and a doctor’s testimony that the nerve block treatments received by the plaintiff do not serve to relax the soft tissue, but instead merely serve to help the pain and facilitate the rehabilitation, thus the patient had reached MMI.140 However, that very same expert did testify that the described palliative care caused functional improvement as well as pain improvement. He also testified that continued treatment would likely lead to increased improvement of plaintiff’s condition.141
The Court found that treatment appeared to continue to improve plaintiff’s condition and therefore, she had not reached her maximum medical improvement. It is clear that this court determined that palliative care served a dual role as both pain relief and function improvement. It did not cure the underlying condition, but it improved the symptoms. There has been no recorded appeal to further clarify this position.
In a recent district court case from the 6th district, the plaintiff cited headaches and a wrist injury after “Ricky Boxing,” a slang term for masturbation which originated in the United States Navy.142 The court found that the cure obligation is designed to provide a seaman, who is injured while in the service of his ship, with reimbursement for his medical expenses until he reaches maximum medical improvement.143 The case was allowed to continue. There has been no further clarification on what is MMI in this circuit.
On July 11, 2001, Plaintiff was serving as first mate aboard the M/V Mr. Tom, a vessel owned by defendant Jantran.144 The vessel struck a bridge spanning the Arkansas River.145 At or near the time of the allision, Plaintiff fell approximately six feet from the deck on which he was working.146 After picking himself up, Plaintiff went to the aid of another crew member who had been knocked overboard and helped the man climb back onto the boat.147 After a while, Plaintiff sat down and felt pain in his back and shoulder, he reported that he may have been injured in the allision.148 The plaintiff was diagnosed with a torn rotator cuff and surgery was recommended for a lumbar disc herniation.149 Plaintiff has not been able to have the surgery due to financial constraints.150
As we have seen, the court ruled that the ship-owner is obliged to pay Maintenance and Cure until the seaman has reached the point of maximum cure, that is until the seaman is cured or his condition is diagnosed as permanent and incurable, which the court determined was not the facts in this case, however what maximum cure means remains undefined.151
In an older 9th circuit case, the plaintiff suffered a dislocated shoulder as a result of a fall sustained in the course of his employment as a seaman-fisherman aboard the Lucky Star.152 The court found that at most, recovery should not be extended beyond the time when the maximum degree of improvement to his health is reached.153 The court could find no authority approving a longer period of recovery nor suggesting that a seaman permanently injured in the course of his employment should receive maintenance for life.154
More recently, the court reaffirmed this decision in Gypsum Carrier, Inc. v. Handelsman.155 Plaintiff was chief steward aboard the appellant’s S.S. Ocean Carrier and as the vessel was being prepared for sea, two members of the crew were attempting to secure tackle for the voyage when it fell, striking the plaintiff.156 When the voyage was completed, plaintiff sought medical care which revealed a brain lesion.157 It was founded that cure cannot be awarded beyond the time when maximum possible cure has been affected, and the seaman’s physical condition has become fixed beyond further improvement.158 Again, this court does not define what maximum possible cure consists of.
The 10th Circuit does not have a case regarding maximum medical improvement regarding cure.
Zukowski was a sailor employed by the defendant’s Gulf Caribe location.159 On September 10, 2008, Zukowski injured his back while pulling a cable aboard Gulf Caribe’s vessel, the M/V Caribe Pioneer.160 The plaintiff sought medical treatment and was diagnosed with low back pain and prescribed various medications as well as a course of physical therapy.161 The doctor declared him at maximum medical improvement.162 As he returned to work the lower back pain returned.163 The Plaintiff returned to the doctor and an MRI of the lumbar spine was ordered.164 It was diagnosed that he was suffering from a lumbar strain with spams and underlying disc herniation’s at L3–4 and L4–5 which were, more probably than not, caused and/or made symptomatic by the September 10, 2008 accident at issue.165
The court ruled that the obligation to pay Maintenance and Cure continues until such time as the seaman has reached the point of maximum cure.166 However, no definition was provided, and Cure was ordered to continue.167
In the previously cited, Costa Crociere, S.p.A. v. Rose,168 the plaintiff had an incurable kidney condition that required regular dialysis treatment to keep him alive.169 The court ordered the defendant to pay for such treatments as being within the scope of “Cure.”170
In a recent Northern District of Florida case, a seaman contracted cancer and brought an action for Maintenance and Cure. It was determined that the plaintiff initially had limited small cell lung cancer as distinguished from extensive small cell cancer; however this metastasized into his brain.171 The court found that as of February 2004, the plaintiff had an incurable permanent illness and that although he had surprisingly survived to this point, any further treatment would be for the purpose of controlling his symptoms and reducing his pain and symptoms, thereby improving his quality of life.172
The court found that the “likelihood of future gains in his medical condition is virtually nonexistent.” The court distinguished Costa Crociere, S.p.A. v. Rose,173 from the above case. In contrast to that case, the plaintiff would not live indefinitely with the treatment even though he has done so thus far.174 The doctors agreed that the treatment was palliative and not to better his physical condition.175 There was no reasonable chance from a medical point of view that the plaintiff could continue to function at a meaningful level with continued treatment.176 “[T]he Court recognizes the ‘fuzzy boundary’ that exists between improvement and palliation. The Court also recognizes that stopping treatment at this stage may decrease Rockhill’s [plaintiff] lifespan. Nonetheless, keeping in mind that Maintenance and Cure is not the equivalent of long term disability insurance, the Court finds that the testimony from Rockhill’s doctors demonstrate unequivocally that Rockhill’s illness is permanent, incurable and not subject to ‘betterment.’” Therefore, Cure was terminated.
Throughout this survey of the Circuit Appeal Courts, three classes become obvious: those that are strict permanency, those that are converting with the evolution of medicine, and those that just follow. Unfortunately, few courts have actually defined the terms they are using for their rule of maximum medical improvement. This may be because it is medically driven, factually driven, or simply because it is an allusion. There is never a maximum medical recovery, because with medicine and science there is no baseline and no end line, only potential and possibilities.
V. What is Curative Care?
cu·ra·tive: having healing or remedial properties177
cure: course of treatment to restore health178
The expression often employed in the various ordinances and in the decisions is that mariners are entitled to be cured of sickness and wounds received in service of the ship.179 Seamen have an exposure to unusual labor or privations on the voyage may induce maladies permanent or irremediable in their character; thus broken limbs, or bodily debility resulting from services in the ship, are very often the sailor’s heritage for the residue of his life….180 The term “Cure”, was originally employed in the sense of taking charge and care for the disabled seaman, and not in that of positive healing.181 Curative care includes care, nursing, medicines, medical care, traveling expenses, hospitalization, etc.182
The initial use of the term “Cure” was to “take charge or care of the disabled seaman, not to actually heal them. It was intended to provide these underprivileged wards the protection due to the hazards of their profession to know that they would be cared for. There was not an original limit placed on this care. “Cure” does not mean to restore to perfect health, as is defined above, it means to have a course of treatment to restore one’s health. There is no limit. If it is to truly “Cure” then working to restore one’s health, the underlying condition, symptoms, related conditions would have to be treated. It is a true misnomer.
In medicine, nothing is segmented. There is not pain, period. Fracture, period. Surgery, period. Infection, period. Each separate item is congealed into a treatment plan to “Cure” a patient. It is not a product of medicine that separates these items; it is a product of the courts that creates our modern day seaman Cure.
VI. What is Palliative Care?
palēətiv: An agent that alleviates or eases a painful or uncomfortable condition183
Palliative care is the interdisciplinary medical sub-specialty that focuses on relieving suffering and improving quality of life for patients with serious illness and their families – it is offered simultaneously with other medical treatments.184 Multiple studies have demonstrated the benefits of palliative care for patients with serious illness in addressing these unmet needs.185 More specifically, palliative care improves physical and psychological symptoms, caregiver wellbeing, and family satisfaction.186 The care also prolongs survival187 and reduces health care utilization and costs.188 Additionally, studies have demonstrated the ability of palliative care to reduce costs by addressing goals of care and assisting patients and families to choose treatments that meet those goals.189
A randomized controlled trial of early palliative care for patients with advanced lung cancer demonstrated the benefits of a model for concurrent oncologic care with palliative care.190 In this study, patients newly diagnosed with advanced non-small cell lung cancer who received palliative care simultaneous with standard oncologic care reported a better quality of life, had fewer depressive symptoms and survived 2.7 months longer than those who received oncologic care alone.191
The patients care, be it curative or palliative, is used cooperatively to maximize the result. A cavity is filed, but Novocain is used (palliative); a bone is set, but the area is under local anesthetic (palliative); a disk is herniated and needs surgery, but without the cortisone injection the individual cannot walk (palliative); a person is under severe depression and needs therapy, but without the medication is a danger to themselves (palliative); a person needs a kidney transplant, but has to have dialysis (palliative); etc…. Medicine does not separate the treatment plan, only the courts do that.
VII. Human Rights Analysis of Access to Pain Treatment and Palliative Care
The Court used international law to adopt the standard of Maintenance and Cure with the draft convention from the 1936 General Conference of the International Labor Organization at Geneva. Which was ratified by the Senate and proclaimed by the President as effective for the United States on October 29, 1939: “‘The ship-owner shall be liable to defray the expense of medical care and maintenance until the sick or injured person has been cured, or until the sickness or incapacity has been declared of a permanent character.”’192 The Congress and the President adopted the international convention to set the current standard, however, has the law adapted as the international standard evolved?
Pain treatment as a human right is relatively new. Early analysis of the issue and requests for pain treatment to be recognized as a human right came from medical professionals working in pain management and palliative care.193 Subsequently, the U.N. Special Rapporteur on The Right to the Highest Attainable Standard of Health, Anand Grover, and the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, both recognized that a failure to address barriers to palliative care can be a violation of human rights. 194
The failure to ensure access to controlled medicines for the relief of pain and suffering threatens fundamental rights to health and to protection against cruel, inhuman and degrading treatment. International human rights law requires that governments must provide essential medicines – which include, among others, opioid analgesics – as part of their minimum core obligations under the right to health.195
A. The Right to the highest attainable standard of health
The right to the highest attainable standard of health is found in the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and several other human rights treaties.196 State parties to ICESCR are obliged to “take steps . . . to the maximum of its available resources, with a view to achieving progressively the full realization” of the right to health.197
However, as noted above, the CESCR (which interprets and monitors compliance with the ICESCR) has stated that there are certain “core obligations” which are “non-derogable,” meaning that “a State party cannot, under any circumstances whatsoever, justify its non-compliance.”198 These include provision of essential medicines, which, as defined by WHO, includes morphine.199
Other core obligations that are relevant to addressing the barriers discussed above include obligations to ensure the right of access to health facilities, goods, and services on a non-discriminatory basis.
B. Pain Treatment, Palliative Care, and the Right to be Free from Cruel, Inhuman or Degrading Treatment
The prohibition of cruel, inhuman or degrading treatment is found in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and other human rights instruments.200 The Committee Against Torture, the treaty body that interprets the CAT, has stated that cruel, inhuman or degrading treatment or punishment “may differ [from torture] in the severity of pain and suffering and does not require proof of impermissible purposes.”201 In other words, governments may violate the CAT when they fail to take steps to prevent cruel, inhuman or degrading treatment or punishment, regardless of whether any government official had malicious intent. The Committee Against Torture has stated that the CAT requires state parties to take “effective preventative measures” and “eliminate any legal or other obstacles that impede the eradication of torture and ill-treatment.”202
The UN Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment stated in his February 2009 report to the Human Rights Council that “de facto denial of access to pain relief, when it causes severe pain and suffering, constitutes cruel, inhuman or degrading treatment or punishment.”203
Human Rights Watch argues that not every case where a person suffers from severe untreated pain is cruel, inhuman, or degrading treatment or punishment.204 Rather, the prohibition is only violated when the following conditions are met:
- The suffering is severe and meets the minimum threshold required under the prohibition against torture and cruel, inhuman, or degrading treatment or punishment;
- The state is, or should be, aware of the level and extent of the suffering;
- Treatment is available to remove or lessen the suffering but no appropriate treatment was offered; and
- The state has no reasonable justification for the lack of availability and accessibility of pain treatment.205
Seamen under the historic doctrine of Maintenance and Cure are restricted to live with the pain; they are not entitled to coverage for treatment. The world now recognizes that care for pain is a basic human right, yet the courts continue to live under an antiquated rule of thumb to oppress, even in situations where the employer may have caused the injury. It appears to be that the courts progress as slowly to adapt to new science, as the rules convert to accept new medical remedies.
Palliative care’s emergence as a discreet medical discipline in the 1960s was designed to treat a fundamental and common medical condition – the experience of pain – which had been largely ignored by medicine, cast off as the responsibility of others. Human rights reject the idea that suffering from treatable pain is inevitable and that the provision of cheap, effective pain medicine must remain a matter of charity. Human rights conventions obligate governments to identify health needs and to adopt national health policies that include detailed plans for realizing the right to health. A human rights analysis places the onus of undertaking this reform effort upon the actors best able to implement systemic change – national governments.
Professor Randall Bridwell had it right when he said, “Maintenance and Cure is a seaman’s remedy of ancient origin.”206 The remedy has not departed from its ancient origin to maintain pace with modern medicine or human rights. Thousands of years of maritime trade and exploration, hundreds of years of United States laws, decades of cases regarding maximum medical improvement, and not one rule to provide adequate coverage for a U.S. seaman’s medical bills due to an injury while “in the service of the vessel.”
If a patient is enabled to lead a normal comfortable life due to such palliative treatment, certainly he has had his ”condition” improved, even though no progress in eliminating the underlying injury or disease is currently feasible. Since it is impossible to imagine a disease with no symptoms at all, elimination of all symptoms would be the equivalent of a complete cure.207 However, some courts would determine that this medical treatment is not covered under the Cure doctrine.
The U.S. District Courts have slowly started converting to allowing palliative care and palliative care is now recognized as a human right. But truly, there is no conversion as the term cure has become an all-encompassing term to provide a complete treatment plan for a patient. The understanding of providing care to cure a patient has changed. There is no need for statutory change, simply an understanding of the modern medical definition. Congress either needs to modify the ancient doctrine of Maintenance and Cure to modern day needs, or it is time for the Courts to accept the 21st century characterization of cure and move off the ancient origin depiction.
2 Vella v. Ford Motor Co., 495 F.2d 1374, 1975 A.M.C. 81 (6th Cir. 1974), judgment rev’d, 421 U.S. 1, 95 S. Ct. 1381, 43 L. Ed. 2d 682, 1975 A.M.C. 563 (1975) and vacated in part, 519 F.2d 1403 (6th Cir. 1975); Cox v. Dravo Corp., 517 F.2d 620 (3d Cir. 1975).
7 Costa Crociere v. Rose, 939 F. Supp. 1538, 1539 (S.D. Fla. 1996). The Court in Vella sought guidance from both Farrell v. United States, 336 U.S. 511 (1949) and Article IV, Paragraph I of the Ship owner’s Liability Convention, Oct. 24, 1936, 54 Stat. 1696, T.S. No. 951, when it held that maintenance and cure should continue until the point the seaman’s incapacity is declared to be permanent. See Vella v. Ford Motor Co., 421 U.S. 1, 5 (1975).
14Benedict on Admiralty §42, at 4-5 (Gelpi Sullivan Carrol & Gibbens P.L.C. ed., 7th ed. rev. 1997).
15 Thomas J. Schoenbaum, Admiralty and Maritime Law §6-28, at 348 (2d ed. 1994).
16 Thomas J. Schoenbaum, Admiralty and Maritime Law §6-28, at 348-49 (2d ed. 1994).
17 Laws of Oleron art. VII, reprinted in 30 F. Cas. 1171, 1174 (1897).
18 Laws of Wisbuy art. XIX, reprinted in 30 F. Cas. 1189, 1191 (1897).
19 Laws of the Hanse Towns art. XLV, reprinted in 30 F. Cas. 1197, 1200 (1897).
20 Marine Ordinances of Louis XIV tit. 4, art. XI, reprinted in 30 F. Cas. 1203, 1209 (1897).
21 Laws of Oleron art. VIII, reprinted in 30 F. Cas. at 1174.
25 Benedict on Admiralty §42, at 4-5 (Gelpi Sullivan Carrol & Gibbens P.L.C. ed., 7th ed. rev. 1997).
26 Thomas J. Schoenbaum, Admiralty and Maritime Law §6-28, at 348-49 (2d ed. 1994).
29 1B Benedict on Admiralty §42, at 4-5 (Gelpi Sullivan Carrol & Gibbens P.L.C. ed., 7th ed. rev. 1997).
30 1B Benedict on Admiralty §42, at 4-11 (Gelpi Sullivan Carrol & Gibbens P.L.C. ed., 7th ed. rev. 1997).
31 1B Benedict on Admiralty §42, at 4-9 (Gelpi Sullivan Carrol & Gibbens P.L.C. ed., 7th ed. rev. 1997).
32 See Macedo v. F/V Paul & Michelle, 898 F.2d 519, 520-21, 1996 AMC 1368, 1368-70 (1st Cir. 1989) (holding that a fisherman who was injured on a Sunday pleasure jaunt between trips was entitled to receive maintenance and cure because he was subject to being called in to work on Sundays).
33 Benedict on Admiralty §42, at 4-30 (Gelpi Sullivan Carrol & Gibbens P.L.C. ed., 7th ed. rev. 1997).
34 Calmar S. S. Corp. v. Taylor, 303 U.S. 525, 58 S. Ct. 651, 82 L. Ed. 993 (1938).
35 Calmar S. S. Corp. v. Taylor, 303 U.S. 525, 528-529, 58 S. Ct. 651, 82 L. Ed. 993 (1938)
36 Calmar S. S. Corp. v. Taylor, 303 U.S. 525, 58 S. Ct. 651, 82 L. Ed. 993 (1938).
46 Benedict on Admiralty §42, at 4-20 (Gelpi Sullivan Carrol & Gibbens P.L.C. ed., 7th ed. rev. 1997).
48 1B Benedict on Admiralty §42, at 4-20 (Gelpi Sullivan Carrol & Gibbens P.L.C. ed., 7th ed. rev. 1997).
49 Thomas J. Schoenbaum, Admiralty and Maritime Law §6-28, at 348-49 (2d ed. 1994).
50 Jardins v. Foss Maritime Co., 1993 AMC 2233, 2239 (W.D. Wash. 1993) (denying seaman maintenance and cure for illness developed solely as a result of his alcohol abuse); see also Aguilar, 318 U.S. at 731, 1943 AMC at 457 (citing Barlow v. Pan Atlantic S.S. Corp., 101 F.2d 697 (2d Cir. 1939); S/S Berwindglen v. Hooten, 88 F.2d 125 (1st Cir. 1937); Lortie v. American-Hawaiian S.S. Co., 28 F.2d 819 (9th Cir. 1935); Oliver v. Calmar S.S. Co., 33 F. Supp. 356 (E.D. Pa. 1940)).
58 Benedict on Admiralty §46, at 4-20 (Gelpi Sullivan Carrol & Gibbens P.L.C. ed., 7th ed. rev. 1997).
59 Benedict on Admiralty §42, (Gelpi Sullivan Carrol & Gibbens P.L.C. ed., 7th ed. rev. 1997).
61 Thomas J. Schoenbaum, Admiralty and Maritime Law §6-31, at 355 (2d ed. 1994).
65 Breese v. AWI, Inc., 823 F.2d 100, 104-05 (1987). See also, Tullos v. Resource Drilling Inc., 750 F.2d 380, 388 (5th Cir. 1985) (emphasizing the termination of a seaman’s right to maintenance and cure should be based on an unequivocal medical determination).
66 Thomas J. Schoenbaum, Admiralty and Maritime Law, n.9, at 307 (2d ed. 1994). (citing Gillikin v. United States, 764 F. Supp. 261, 268 (E.D. N.Y. 1991)).
70 Reed v. Canfield, 20 F. Cas. 426 (C.C. Mass. 1832) (No. 11, 641). While attempting to delineate the extent of the ship owner’s obligation, Justice Story wrote: ‘The sickness or other injury may occasion a temporary or permanent disability; but that is not a ground for indemnity from the ship-owners. They are liable only for expenses necessarily incurred for the cure; and when the cure is completed, at least so far as the ordinary medical means extend, the ship-owners are freed from all further liability…‘.
71 Reed v. Canfield, 20 F. Cas. 426 (C.C. Mass. 1832) (No. 11, 641).
72 Reed v. Canfield, 20 F. Cas. 426 (C.C. Mass. 1832) (No. 11, 641). The main issue in Reed was whether the ship-owner was obligated to provide the seaman maintenance and cure since he did not injure himself during the actual voyage and the vessel was not abroad. The fact the voyage had ended and the vessel was anchored in port did not preclude the seaman from claiming maintenance and cure.
73 Reed v. Canfield, 20 F. Cas. 426, 429 (C.C. Mass. 1832) (No. 11, 641).
74 William H. Welte, Maintenance and Cure: The Third Count of The Seaman’s Complaint, 7 Suffolk Transnat’l L.J., 1, 40, n. 71 (1983).
75 The Atlantic, 2 F. Cas. 121, 132 (S.D. N.Y. 1849) (No. 620) (holding that an injured seaman had no claim against ship-owner once the obligation to pay the seaman’s wages terminated); Nevitt v. Clarke, 18 F. Cas. 29, 32 (S.D. N.Y. 1846) (No. 10, 138) (holding that a seaman’s right to maintenance and cure is concurrent with his right to wages).
76 Calmar S. S. Corp. v. Taylor, 303 U.S. 525, 58 S. Ct. 651, 82 L. Ed. 993 (1938).
77 Calmar S. S. Corp. v. Taylor, 303 U.S. 525, 531, 58 S. Ct. 651, 82 L. Ed. 993 (1938).
78 Calmar S. S. Corp. v. Taylor, 303 U.S. 525, 526, 58 S. Ct. 651, 82 L. Ed. 993 (1938).
79 Calmar S. S. Corp. v. Taylor, 303 U.S. 525, 530, 58 S. Ct. 651, 82 L. Ed. 993 (1938).
80 Calmar S. S. Corp. v. Taylor, 303 U.S. 525, 531, 58 S. Ct. 651, 82 L. Ed. 993 (1938).
81 Calmar S. S. Corp. v. Taylor, 303 U.S. 525, 531, 58 S. Ct. 651, 82 L. Ed. 993 (1938).
82 Calmar S. S. Corp. v. Taylor, 303 U.S. 525, 531, 58 S. Ct. 651, 82 L. Ed. 993 (1938).
83 William H. Welte, Maintenance and Cure: The Third Count of The Seaman’s Complaint, 7 Suffolk Transnat’l L.J., 1, 40, 43 (1983).
87 Article IV, Paragraph I of the Ship owner’s Liability Convention, Oct. 24, 1936, 54 Stat. 1696, T.S. No. 951, when it held that maintenance and cure should continue until the point the seaman’s incapacity is declared to be permanent. See Vella v. Ford Motor Co., 421 U.S. 1, 5 (1975).
88 William H. Welte, Maintenance and Cure: The Third Count of The Seaman’s Complaint, 7 Suffolk Transnat’l L.J., 1, 40, 44 (1983).
102 Whitman v. Miles, 387 F.3d 68 (1st Cir. 2004).
103 Whitman v. Miles, 387 F.3d 68, 70 (1st Cir. 2004).
104 Whitman v. Miles, 387 F.3d 68, 71 (1st Cir. 2004).
105 Whitman v. Miles, 387 F.3d 68, 71 (1st Cir. 2004).
106 Whitman v. Miles, 387 F.3d 68, 74 (1st Cir. 2004).
107 Whitman v. Miles, 387 F.3d 68, 75 (1st Cir. 2004).
108 Whitman v. Miles, 387 F.3d 68, 75 (1st Cir. 2004).
109 Whitman v. Miles, 387 F.3d 68, 75 (1st Cir. 2004).
110 Messier v. Bouchard Transp., 688 F.3d 78, 80 (2d Cir. 2012), as amended (Aug. 15, 2012), cert. denied, 133 S. Ct. 1586, 185 L. Ed. 2d 578 (U.S. 2013).
111 Messier v. Bouchard Transp., 688 F.3d 78, 80 (2d Cir. 2012), as amended (Aug. 15, 2012), cert. denied, 133 S. Ct. 1586, 185 L. Ed. 2d 578 (U.S. 2013).
112 Messier v. Bouchard Transp., 688 F.3d 78, 81 (2d Cir. 2012), as amended (Aug. 15, 2012), cert. denied, 133 S. Ct. 1586, 185 L. Ed. 2d 578 (U.S. 2013).
113 Messier v. Bouchard Transp., 688 F.3d 78, 82 (2d Cir. 2012), as amended (Aug. 15, 2012), cert. denied, 133 S. Ct. 1586, 185 L. Ed. 2d 578 (U.S. 2013).
114 Messier v. Bouchard Transp., 688 F.3d 78, 83 (2d Cir. 2012), as amended (Aug. 15, 2012), cert. denied, 133 S. Ct. 1586, 185 L. Ed. 2d 578 (U.S. 2013).
115 Messier v. Bouchard Transp., 688 F.3d 78, 83 (2d Cir. 2012), as amended (Aug. 15, 2012), cert. denied, 133 S. Ct. 1586, 185 L. Ed. 2d 578 (U.S. 2013).
116 Haney v. Miller’s Launch, Inc., 773 F. Supp. 2d 280, 283-94 (E.D.N.Y. 2010).
117 Haney v. Miller’s Launch, Inc., 773 F. Supp. 2d 280, 283-94 (E.D.N.Y. 2010).
118 Haney v. Miller’s Launch, Inc., 773 F. Supp. 2d 280, 283-94 (E.D.N.Y. 2010).
119 Haney v. Miller’s Launch, Inc., 773 F. Supp. 2d 280, 283-94 (E.D.N.Y. 2010).
120 O’Connell v. Interoceanic Mgmt. Corp., 90 F.3d 82, 83 (3d Cir. 1996).
121 O’Connell v. Interoceanic Mgmt. Corp., 90 F.3d 82, 83 (3d Cir. 1996).
122 O’Connell v. Interoceanic Mgmt. Corp., 90 F.3d 82, 83 (3d Cir. 1996).
123 O’Connell v. Interoceanic Mgmt. Corp., 90 F.3d 82, 84 (3d Cir. 1996).
124 Aggarao v. MOL Ship Mgmt. Co., Ltd., 675 F.3d 355, 378 (4th Cir. 2012).
125 Aggarao v. MOL Ship Mgmt. Co., Ltd., 675 F.3d 355, 378 (4th Cir. 2012).
126 Aggarao v. MOL Ship Mgmt. Co., Ltd., 675 F.3d 355, 378 (4th Cir. 2012).
127 Aggarao v. MOL Ship Mgmt. Co., Ltd., 675 F.3d 355, 378, fn.24 (4th Cir. 2012).
128 Aggarao v. MOL Ship Mgmt. Co., Ltd., 675 F.3d 355, 378, fn. 24 (4th, Cir. 2012).
129 Alario v. Offshore Serv. Vessels, L.L.C., 477 F. App’x 186, 187 (5th Cir. 2012).
130 Alario v. Offshore Serv. Vessels, L.L.C., 477 F. App’x 186, 187 (5th Cir. 2012).
131 Alario v. Offshore Serv. Vessels, L.L.C., 477 F. App’x 186, 188 (5th Cir. 2012).
132 Alario v. Offshore Serv. Vessels, L.L.C., 477 F. App’x 186, 188 (5th Cir. 2012).
133 Nicholson v. Great Lakes Towing Co., 07-11134, 2008 WL 3200025 (E.D. Mich. Aug. 6, 2008).
134 Nicholson v. Great Lakes Towing Co., 07-11134, 2008 WL 3200025 (E.D. Mich. Aug. 6, 2008).
135 Nicholson v. Great Lakes Towing Co., 07-11134, 2008 WL 3200025 (E.D. Mich. Aug. 6, 2008).
136 Nicholson v. Great Lakes Towing Co., 07-11134, 2008 WL 3200025 (E.D. Mich. Aug. 6, 2008).
137 Nicholson v. Great Lakes Towing Co., 07-11134, 2008 WL 3200025 (E.D. Mich. Aug. 6, 2008).
138 Frost v. Teco Barge Line, Inc., 04-CV-752 DRH, 2007 WL 178562 (S.D. Ill. Jan. 22, 2007).
139 Frost v. Teco Barge Line, Inc., 04-CV-752 DRH, 2007 WL 178562 (S.D. Ill. Jan. 22, 2007).
140 Frost v. Teco Barge Line, Inc., 04-CV-752 DRH, 2007 WL 178562 (S.D. Ill. Jan. 22, 2007).
141 Frost v. Teco Barge Line, Inc., 04-CV-752 DRH, 2007 WL 178562 (S.D. Ill. Jan. 22, 2007).
142 McKinney v. Am. River Transp. Co., 12-CV-0885-MJR-SCW, 2013 WL 3270955 (S.D. Ill. June 27, 2013).
143 McKinney v. Am. River Transp. Co., 12-CV-0885-MJR-SCW, 2013 WL 3270955 (S.D. Ill. June 27, 2013).
144 McNeil v. Jantran, Inc., 258 F. Supp. 2d 926, 928-32 (W.D. Ark. 2003).
145 McNeil v. Jantran, Inc., 258 F. Supp. 2d 926, 928-32 (W.D. Ark. 2003).
146 McNeil v. Jantran, Inc., 258 F. Supp. 2d 926, 928-32 (W.D. Ark. 2003).
147 McNeil v. Jantran, Inc., 258 F. Supp. 2d 926, 928-32 (W.D. Ark. 2003).
148 McNeil v. Jantran, Inc., 258 F. Supp. 2d 926, 928-32 (W.D. Ark. 2003).
149 McNeil v. Jantran, Inc., 258 F. Supp. 2d 926, 928-32 (W.D. Ark. 2003).
150 McNeil v. Jantran, Inc., 258 F. Supp. 2d 926, 928-32 (W.D. Ark. 2003).
151 McNeil v. Jantran, Inc., 258 F. Supp. 2d 926, 928-32 (W.D. Ark. 2003).
152 Luksich v. Misetich, 140 F.2d 812, 813-15 (9th Cir. 1944).
153 Luksich v. Misetich, 140 F.2d 812, 813-15 (9th Cir. 1944).
154 Luksich v. Misetich, 140 F.2d 812, 813-15 (9th Cir. 1944).
155 Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525, 527-37 (9th Cir. 1962).
156 Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525, 527-37 (9th Cir. 1962).
157 Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525, 527-37 (9th Cir. 1962).
158 Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525, 527-37 (9th Cir. 1962).
159 Zukowski v. Foss Mar. Co., CIV.A. 11-0493-CG-M, 2013 WL 1966001 (S.D. Ala. May 10, 2013).
160 Zukowski v. Foss Mar. Co., CIV.A. 11-0493-CG-M, 2013 WL 1966001 (S.D. Ala. May 10, 2013).
161 Zukowski v. Foss Mar. Co., CIV.A. 11-0493-CG-M, 2013 WL 1966001 (S.D. Ala. May 10, 2013).
162 Zukowski v. Foss Mar. Co., CIV.A. 11-0493-CG-M, 2013 WL 1966001 (S.D. Ala. May 10, 2013).
163 Zukowski v. Foss Mar. Co., CIV.A. 11-0493-CG-M, 2013 WL 1966001 (S.D. Ala. May 10, 2013).
164 Zukowski v. Foss Mar. Co., CIV.A. 11-0493-CG-M, 2013 WL 1966001 (S.D. Ala. May 10, 2013).
165 Zukowski v. Foss Mar. Co., CIV.A. 11-0493-CG-M, 2013 WL 1966001 (S.D. Ala. May 10, 2013).
166 Zukowski v. Foss Mar. Co., CIV.A. 11-0493-CG-M, 2013 WL 1966001 (S.D. Ala. May 10, 2013).
167 Zukowski v. Foss Mar. Co., CIV.A. 11-0493-CG-M, 2013 WL 1966001 (S.D. Ala. May 10, 2013).
177 Tabor’s Medical Encyclopedia, 20th ed., F.A. Davis Company (2001).
178 Tabor’s Medical Encyclopedia, 20th ed., F.A. Davis Company (2001).
179 The Law of Seamen § 26:23 (5th ed.).
180 The Law of Seamen § 26:23 (5th ed.).
181 The Law of Seamen § 26:23 (5th ed.).
182 The Law of Seamen § 26:23 (5th ed.).
183 Tabor’s Medical Encyclopedia, 20th ed., F.A. Davis Company (2001).
184 Laura P. Gelfman, M.D. & Diane E. Meier, M.D., Making the Case for Palliative Care: An Opportunity for Health Care Reform, 8 J. Health & Biomedical L. 57 (2012).
185 State-by-State Report Card, supra note 1, at 1; see Joan M. Teno et al., Family Perspectives on End-of-Life Care at the Last Place of Care, 291 JAMA 88, 88, 91-92 (2004); SUPPORT Principal Investigators, A Controlled Trial To Improve Care for Seriously Ill Hospitalized Patients: The Study To Understand Prognoses and Preferences for Outcomes and Risks of Treatments (SUPPORT), 274 JAMA 1591, 1592 (1995); Karl Lorenz et al., Evidence Report/Technology Assessment: End of Life Care and Outcomes: Summary 2-3 (2004), available at http://www.ahrq.gov/clinic/epcsums/eolsum.pdf.
186 David Casarett et al., Do Palliative Consultations Improve Patient Outcomes? 56 J. Am. Geriatric Soc’y 593, 597-98 (2008) (discussing results indicating palliative care can improve quality of end of life care); Laura P. Gelfman et al., Does Palliative Care Improve Quality? A Survey of Bereaved Family Members, 36 J. Pain & Symptom MGMT. 22, 25 (2008) (explaining that results show palliative care consultation services improve family-centered outcomes); Marit S. Jordhóy et al., Quality of Life in Palliative Cancer Care: Results From a Cluster Randomized Trial, 19 J. Clinical Oncology 3884, 3891 (2001) (finding palliative cancer care increased family satisfaction among other benefits).
187 Jennifer S. Temel et al., Early Palliative Care for Patients with Metastatic Non-Small-Cell Lung Cancer, 363 New Eng. J. Med. 733, 739 (2010) (explaining results show palliative care prolong survival of cancer patients).
188 Morrison et al., Cost Savings, supra note 10, at 1785 (stating “patients receiving palliative care consultation had significantly lower costs” than usual patients who did not); Joan D. Penrod et al., Hospital-Based Palliative Care Consultation: Effects on Hospital Cost, 13 J. Palliative Med. 973, 976 (2010) (finding “palliative care during hospitalizations was associated with significantly lower direct hospital costs.”); R. Sean Morrison et al., Palliative Care Consultation Teams Cut Hospital Costs for Medicaid Beneficiaries, 30 Health Aff. 454, 457 (2011) [hereinafter Morrison et al., Palliative Care Consultation Teams] (finding overall results show “patients who received palliative care had significantly lower costs than patients who” did not).
189 Thomas J. Smith & J. Brian Cassel, Cost and Non-Clinical Outcomes of Palliative Care, 38 J. of Pain & Symptom MGMT. 32, 33 (2009) (finding palliative care services can generate substantial savings through cost avoidance); Anthony L. Back et al., Impact of Palliative Care Case Management on Resource Use By Patients Dying of Cancer at a Veterans Affairs Medical Center, 8 J. Palliative Med. 26, 30 (2005) (finding palliative care patients received case management desired in original plan); Morrison et al., Palliative Care Consultation Teams, supra note 14, at 460; Joan D. Penrod et al., Cost and Utilization Outcomes of Patients Receiving Hospital-Based Palliative Care Consultation, 9 J. Palliative Med. 855, 857 (2006) (finding “[p]alliative care patients were more likely to be on medical services and less likely” admitted to intensive care); Ahmed Elsayem et al., Palliative Care Inpatient Service In A Comprehensive Cancer Center: Clinical and Financial Outcomes, 22 J. Clinical Oncology 2008, 2011 (2004) (discussing how nurses are overwhelmed by expectations and demands of palliative care patients’ families).
190 Jennifer S. Temel et al., Early Palliative Care for Patients with Metastatic Non-Small-Cell Lung Cancer, 363 New Eng. J. Med. 733, 739 (2010) (explaining results show palliative care prolong survival of cancer patients).
191 David Casarett et al., Do Palliative Consultations Improve Patient Outcomes? 56 J. Am. Geriatric Soc’y 593, 596 (2008) (discussing results indicating palliative care can improve quality of end of life care).
192 Farrell v. United States, 336 U.S. 511, 517, 1949 AMC 613, 617 (1949), (citing 54 Stat. 1693, art. 4, para. 1).
193 Joint Declaration and Statement of Commitment on Palliative Care and Pain Treatment as Human Rights, Int’l Hospice & Palliative Care Ass’n and World Wide Palliative Care Alliance, available at http:// www.hospicecare.com/resources/pain_pallcare_hr/docs/jdsc.pdf; F. Brennan and M. J. Cousins, Pain Relief as a Human Right, IASP Pain Clinical Updates, Vol. XII, No. 5, March 2004, available at http:// www.hospicecare.com/resources/pdf-docs/pain_relief_as_a_human_right_pain_ clinical_updates_2004.pdf; Frank Brennan, Palliative Care as an International Human Right, 33 J. Pain & Symptom Mgmt. 494 (2007).
194 Joint Declaration and Statement of Commitment on Palliative Care and Pain Treatment as Human Rights, Int’l Hospice & Palliative Care Ass’n and World Wide Palliative Care Alliance, available at http:// www.hospicecare.com/resources/pain_pallcare_hr/docs/jdsc.pdf; F. Brennan and M. J. Cousins, Pain Relief as a Human Right, IASP Pain Clinical Updates, Vol. XII, No. 5, March 2004, available at http:// www.hospicecare.com/resources/pdf-docs/pain_relief_as_a_human_right_pain_ clinical_updates_2004.pdf; Frank Brennan, Palliative Care as an International Human Right, 33 J. Pain & Symptom Mgmt. 494 (2007).
195 Letter to Chairperson of the Commission on Narcotic Drugs, United Nations Special Rapporteur on the Prevention of Torture and Cruel, Inhuman, or Degrading Treatment or Punishment & Special Rapporteur on Right of Everyone to the Highest Attainable Standard of Physical and Mental Health, U.N. Doc. G/SO 214 (52-21) (Dec. 10, 2008), available at http:// www.hrw.org/sites/default/files/related_material/12.10.2008%20Letter%C20to%C20CND%C20fromSpecial%R̈apporteurs.pdf (last visited Nov. 6, 2010).
196 International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. No. 16, UN Doc. A/6316, art 2.1 (Dec. 16, 1966) [hereinafter ICCPR].
197 International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. No. 16, UN Doc. A/6316, art 2.1 (Dec. 16, 1966).
198 International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. No. 16, UN Doc. A/6316, art 2.1 (Dec. 16, 1966).
199 International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. No. 16, UN Doc. A/6316, art 2.1 (Dec. 16, 1966).
200 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, Annex 39, U.N. GAOR, Supp. No. 51, UN Doc. A/39/51, at 197 (Dec. 10, 1984); Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. GAOR, 3d Sess., U.N. Doc A/810 (Dec. 10, 1948); ICCPR, supra note 138, at 52; Inter-American Convention to Prevent and Punish Torture, entered into force Feb. 22, 1987, OAS Treaty Series No. 67, reprinted in 25 I.L.M. 519 (1987); European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, ETS 126 (1987); African [Banjul] Charter on Human and Peoples’ Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58, art. 5 (1982), entered into force Oct. 21, 1986.
201 U.N. Comm. Against Torture, General Comment No. 2: Implementation of Article 2 by State Parties, P10, U.N. Doc. CAT/C/GV/2 (Jan. 24, 2008), available at http://www.unhcr.org/refworld/docid/47ac/78ce2.html.
202 U.N. Comm. Against Torture, General Comment No. 2: Implementation of Article 2 by State Parties, P10, U.N. Doc. CAT/C/GV/2 (Jan. 24, 2008), available at http://www.unhcr.org/refworld/docid/47ac/78ce2.html.
203 Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Promotion and Protection of All Human Rights, Civil Political, Economic, Social and Cultural Rights, Including the Right to Develop, U.N. Doc. A/HRC/10/44, P72 (Jan. 14, 2009).
204 Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Promotion and Protection of All Human Rights, Civil Political, Economic, Social and Cultural Rights, Including the Right to Develop, U.N. Doc. A/HRC/10/44, P72 (Jan. 14, 2009).
205 Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Promotion and Protection of All Human Rights, Civil Political, Economic, Social and Cultural Rights, Including the Right to Develop, U.N. Doc. A/HRC/10/44, P72 (Jan. 14, 2009).
206 Randall Bridwell, PRIMER ON MAINTENANCE AND CURE—THE MEANING OF THE WORDS MAXIMUM MEDICAL CURE, vol. 1 of ATLA Annual Convention Reference Materials, Association of Trial Lawyers of America, July, 2005.
207 Randall Bridwell, PRIMER ON MAINTENANCE AND CURE—THE MEANING OF THE WORDS MAXIMUM MEDICAL CURE, vol. 1 of ATLA Annual Convention Reference Materials, Association of Trial Lawyers of America, July, 2005.