Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW MARCUS, District Judge. THIS CAUSE was tried before the Court without a jury on the issue of maintenance and cure and the specific question of whether the Defendant has reached the point of maximum medical improvement. Evidence was presented on November 27 and 28, 1995 and closing arguments were heard on December 11,1995. The Plaintiffs filed their single-count complaint on February 24,1995, seeking a declaration that the Defendant has reached the point of maximum medical improvement, and that therefore the Plaintiffs have no continuing obligation to provide him with maintenance and cure. The Defendant filed an answer and counterclaim on April 26, 1995. The original counterclaim contains three counts. Count I seeks relief for Jones Act negligence and failure to provide prompt and adequate medical care. Count II seeks relief under the common law doctrine of unseaworthiness. Count III seeks relief for the Plaintiffs’ alleged failure to provide maintenance and cure. In an Order dated June 30, 1995, the Court bifurcated this lawsuit, setting one series of pre-trial dates for Defendant’s Jones Act and unseaworthiness claims, and another set of dates for issues relating to maintenance and cure. At a pre-trial conference on November 7, 1995, the parties agreed that maintenance and cure would be tried to the Court, upon the understanding that the Plaintiffs could reserve their right to raise affirmative defenses to Rose’s continued entitlement to maintenance and cure at the time of a jury trial on the Jones Act and unseaworthiness claims. After a thorough review of the evidence and materials presented at trial, and having considered the memoranda and argument of counsel, we conclude that the Defendant has not reached the point of “maximum medical improvement” as defined in the case law of this Circuit, and that therefore the Plaintiffs must continue to provide maintenance and cure. Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the Court makes the following Findings of Fact and Conclusions of Law: I.FINDINGS OF FACT 1. The Defendant, Ewart C. Rose, is a black, 35-year-old citizen of Jamaica and a resident alien in the United States. He resides and is domiciled in Miami, Florida. At all times material to this lawsuit, Rose was a seaman and “in the service of the vessel.” 2. Plaintiff Costa Crociere, S.p.A (“Cos-ta”) is the owner and operator of the vessel M/V American Adventure. Plaintiff Family Hotel Services, Inc. (“FHS”) employed Rose while he served aboard the M/V American Adventure, from some time in early February of 1994 until June 21, 1994, when he was transferred off the vessel for medical care and treatment. 3. In February of 1987, Rose, at that time a seaman aboard a ship purportedly operated by Premier Cruise Lines, Ltd., was referred by the ship’s doctor to Dr. Jonathan Gayden, a physician based in Melbourne, Florida and specializing in internal medicine. Gayden evaluated Rose on or about February 23, 1987, and found, among other things, that the Defendant suffered from hypertension and a urinary infection. Gayden prescribed separate medications for the hypertension and the infection. Rose returned for a second visit in March, 1987, at which time Gayden discovered blood in Rose’s urine. During a third visit in April, 1987, Rose complained of left flank pain. Gayden then referred Rose to Dr. Wanich, who conducted a kidney biopsy. 4. In May, 1987, Dr. Gary Pearl interpreted the biopsy and prepared a report summarizing his findings. See P’tiff. exh. 49. Pearl, an Orlando, Florida-based specialist who is board certified in anatomic pathology, clinical pathology and neuropathology, diagnosed Rose as suffering from IgA nephropa-thy, a renal disease associated with excessive immune deposits, a component of which is immunoglobulin A 5. IgA nephropathy is an incurable kidney disease. The exact cause of the disease, which may result in a total loss of renal function, is unknown. 6. Defendant’s expert, Dr. Alan Arieff, testified that he believed Pearl’s diagnosis was incorrect. Arieff, a nephrologist and professor of medicine at the University of California School of Medicine in San Francisco, is board certified in internal medicine and nephrology and is associated with the University’s transplant, dialysis and renal disease programs. Arieff based his opinion on a review of the findings summarized in Pearl’s report. He testified that while some of Pearl’s findings were consistent with a diagnosis of IgA nephropathy, other findings suggested that Rose was suffering from malignant hypertension. Unlike Pearl, however, Arieff did not examine the kidney tissue removed during the biopsy or review pictures or slides of the tissue. The Court therefore finds, for purposes of this Order, that while malignant hypertension may have contributed to Rose’s current condition, the predominant cause is IgA nephropathy. 7. On or about June 21, 1994, while serving as a crew member on the M/V American Adventure, Rose suddenly became ill, and was removed from the ship for emergency medical care. He was airlifted to the Dominican Republic, and from there to Miami, Florida, where he was admitted to Cedars Medical Center and stabilized. 8. Dr. Luis Garcia-Mayol examined Rose upon his arrival at Cedars, and remains the Defendant’s primary treating physician. Garcia-Mayol described himself as a consultant on nephropathy and internal medicine who spends 50 percent of his time with kidney dialysis patients. He testified that his examination of Rose revealed that the Defendant had suffered a total renal failure along with acute high blood pressure. Rose was immediately placed on kidney dialysis. Since then, Rose has received dialysis treatments three times a week at the Flamingo Park Kidney Center in Miami. 9. In November, 1994, Garcia-Mayol referred Rose to Dr. Joshua Miller, co-director of the Division of Transplantation, Department of Surgery at the University of Miami. Dr. Miller screened Rose in order to determine his appropriateness as a candidate for a kidney transplant. Miller concluded that Rose was a viable transplant candidate. Rose’s brother has volunteered to donate his kidney for the operation. 10. Garcia-Mayol stated that, notwithstanding the dialysis treatments, Rose presently suffers from high blood pressure, softened bones, peripheral nerve difficulties and severe walking disabilities, all of which are attributable to his kidney disease. Garcia-Mayol testified that Rose has chronic renal failure, and that his condition has been degenerating over the past twelve months. 11. The Plaintiffs’ principal expert was Dr. David Roth, a nephrologist specializing in transplantation at the University of Miami School of Medicine. Roth is medical director of the School’s transplant program, working exclusively with kidneys. 12. Roth described the nature of IgA ne-phropathy. He explained that it is a progressive disease, in the sense that it triggers a process that results in gradual damage to the kidney, leading to an eventual loss of kidney function. He testified that no method of retarding the advance of the disease has been recognized as the standard of care, although a number of experimental drug trials have shown promise. For the moment, according to Roth, the most important factor in retarding the disease is control of hypertension, because elevations in blood pressure aggravate the condition and speed the progressive loss of kidney function. 13. Roth testified that when renal failure occurs, the body is unable to prevent the accumulation of toxins and other fluids. Without treatment on dialysis, or a kidney transplant, a patient with total renal failure will die within no more than a matter of weeks. The parties have stipulated that, without dialysis or a transplant, Rose will die. When asked by Defendant’s counsel whether Rose would have to receive dialysis or a transplant in order to expect maximum improvement in his condition, Roth answered “Okay. Fine.” 14. As noted above, the Defendant currently is receiving dialysis treatments. Roth explained that the purpose of dialysis is to remove from the body the toxins that otherwise would be eliminated by a functioning kidney. He testified, and we find, that a patient receiving dialysis shows a measurable improvement from the standpoint of body chemistry and overall well-being. The patient’s blood will show a more moderate level of abnormalities, and cardiac function is enhanced. Roth explained that this improvement is most dramatic when the very ill begin to receive dialysis, but even those less critically ill report a better appetite and more energy over a period of weeks. He added that it is unclear how much, if any, measurable deterioration takes place between individual dialysis sessions. 15. Both Roth and Arieff testified, and the Court finds, that a patient can be maintained on dialysis for a significant period of time. Arieff estimated that a patient can live 10-20 years. Roth explained that a dialysis patient has a “reasonable life expectancy.” 16. The alternative to continued dialysis is a transplant. Roth said the suitability of a patient for transplant is determined by reference to a multitude of variables. These variables include: (1) the patient’s cardiac function and history of cardiac disease, if any; (2) other co-morbid factors, such as vascular disease, malignancy, high blood pressure and prior strokes; (3) the results of a psychological interview, with particular emphasis on the likelihood of the patient’s compliance with necessary post-operative treatments; and (4) the presence of infections such as HIV. Roth testified that he does not rely on statistical probabilities of success in evaluating specific patients, and does not inform potential candidates of these probabilities unless they ask. He explained that another factor concerns how well the patient is performing on dialysis. If the patient is performing well, and leading a relatively normal lifestyle, then the risks of a transplant might outweigh the gains. Conversely, if the patient is faring poorly because his body cannot tolerate the process, or because he has limited access to dialysis treatment facilities, transplant becomes a more necessary option. 17.The parties’ experts disagreed on whether one of the advantages of a transplant over long-term dialysis is increased longevity of life. Arieff testified that he perceives increased longevity as one of the advantages of a transplant. Roth, by contrast, testified that he informs patients that the benefits of a transplant are marked, but essentially center on quality of life rather than extension of life, since the efficacy of the transplant cannot be guaranteed and the data is not strong enough for him to advise patients that they will survive longer if they opt for a transplant. Roth opined that, based on his own experience and his assessment of the literature, transplantation offers individuals a far better chance of returning to normal life activities. He testified that while the majority of dialysis patients are unable to return to work, the rehabilitation rate for successful transplant recipients is much higher. Roth’s views are reflected in the publication “Getting Ready for a Transplant,” authored by the National Kidney Foundation. See P’tiff. exh. 78A. The pamphlet explains that “[kjidney transplantation is accepted as the preferred treatment for many people with kidney failure. Transplantation has many advantages such as a lifestyle free from dialysis and fewer fluid and dietary restrictions. Kidney transplant, when successful, can often provide a better quality of life for the many of people.” For these reasons, Roth described himself as having a pro-transplant bias, although he acknowledged that a transplant is not suitable for all patients with end stage renal failure. 18. Roth testified that transplantation carries a certain degree of risk. Some of these risks are those normally attendant to major surgery. Other risks, however, relate to the patient’s reaction to the immunosup-pressive medications that are administered to prevent the body from rejecting the new kidney and to ensure its smooth functioning. Among the possible side effects of these drugs are (1) susceptibility to severe infections such a pneumonia; (2) malignancies; (3) cataract formation; (4) bone disease; (5) worsened hypertension; and (6) increased cholesterol and lipid abnormalities. Moreover, according to Roth, if the patient’s body rejects the new kidney, the body pays a price that worsens the likelihood that a resumption of dialysis will sustain life for a meaningful period of time. 19. Roth testified that transplantation does not eliminate the underlying cause of the kidney failure. He explained that a disease such as IgA nephropathy may affect the new kidney in 20-60 percent of eases, although it is relatively uncommon for the new kidney to fail as a result of the disease. He added that while a transplant will help mitigate the condition of the disease, it will not remove all traces of the disease from the patient’s body. 20. Despite their differing views on the efficacy of transplantation as a life-saving treatment, both experts agreed, and we find, that the successful recipient of a transplant often will show objectively verifiable improvement over a similarly situated patient on chronic dialysis. Roth explained that a properly functioning new kidney will do a superior job of removing toxins and excess fluids than dialysis, thereby creating a better chemical balance in the body and making the patient, on balance, “healthier” than before. In addition, a healthy kidney produces hormones that increase the number of red blood cells, and helps to stabilize blood pressure levels and correct anemia. Arieff testified that a transplant, unlike dialysis, also will (1) arrest the progressive decline in the patient’s IQ; (2) improve the patient’s peripheral nerve system, making muscles stronger, providing more energy and reducing the likelihood of impotence; (3) arrest the deterioration of the patient’s bones; (4) improve the condition and appearance of the patient’s skin; and (5) help reduce the intermittent weight gain often associated with dialysis. 21. Roth testified that the three most important factors in determining the likelihood of a successful transplant are (1) whether the kidney to be transplanted is a matched (preferably H.L.A. identical) kidney from a living related donor, rather than a kidney from a cadaver; (2) the race of the patient; and (3) the patient’s compliance with postoperative directions with regard to treatment and the taking of immunosuppressants and other anti-rejection drugs. 22. In assessing the statistical probabilities for survival of transplant candidates like Rose, both Roth and Arieff referred to data from the United States Renal Data System (“USRDS”). According to Roth, the data summarized in the Report is based on results for Medicare eligible dialysis patients for which the United States receives information through the Social Security system. The tables list the survival probabilities for each year between 1977 and 1987 for dialysis patients and patients receiving kidney transplants, adjusted for age, race, gender or the primary disease causing end stage renal disease. On their face, the tables do not attempt to adjust the survival probabilities for more than one factor at a time. Figures of this sort may be determined by relying on familiar tools of statistical analysis. Referring to the July, 1994 USRDS Report, see P’tiff. exh. 99A-D, Arieff stated that a black male in the 35-39 year age group suffering from malignant hypertension would have a five-year survival rate of 30 percent, and a ten-year survival rate of 11 percent, if he continued on dialysis. He then stated that a black male in the 35-39 age group suffering from malignant hypertension would have a five-year survival rate of 79 percent, and a ten year survival rate of 49 percent, if he received a transplant from a living related donor. As noted above, Arieff testified that he believed the principal cause of Rose’s end stage renal failure was malignant hypertension rather than IgA nephropathy. He stressed, however, that the USRDS survival rates are higher, not lower, if the cause of the renal failure is a disease like IgA nephro-pathy. Unlike Arieff, Roth did not consult the USRDS Report during his live testimony. When questioned by counsel, he agreed that the statistics indicate Rose can be expected to live 7&-to-8 years on dialysis. He also agreed that the statistics show a roughly 40 percent five-year survival rate for 35-40 year old black males with a disease like IgA ne-phropathy on dialysis. Roth added that these survivability figures would be higher for patients with no eo-morbid factors. Drawing on studies performed in part at the University of Miami’s transplant center, Roth estimated that less than 50 percent of blacks receiving a transplant (whether living related or cadaveric) will survive ten years. Roth also estimated that a H.L.A. matched kidney transplanted into someone with Rose’s demographies would have an 80 percent chance of functioning for five years, and roughly a 70 percent chance of functioning for ten years. Roth suggested, and Arieff eventually conceded, that all of these statistical probability figures should be used with caution. Roth stated that the USRDS figures are not reliable, because although the data can be correlated for age, sex, race, disease and modality of treatment, it nevertheless fails to take into account other eo-morbid factors (such as compliance, cardiac function and the existence of prior, failed transplants for those patients on dialysis) which have a tremendous impact on the success of treatments for end stage renal failure. Roth again emphasized that he does not like to use statistics, because the data does not take sufficient account of the unique features of the current health and background of individual patients. Arieff acknowledged that the USRDS Report itself advises that “[g]iven the likely selection bias involved in the selection of patients into modalities, patient characteristics may vary substantially between modality groups. Therefore, differences in survival across modality groups may not necessarily be ascribable to differences in the efficacy of treatment modalities, even after the adjustments for age, race, sex and primary disease.” See P’tiff. exh. 99E. In addition, Roth noted that the USRDS data is somewhat aged, and does not fully take into account recent advances in dialysis technology that make it more effective as a life-sustaining treatment. Roth was questioned about the results of a 1985 Canadian study that attempted to document the connection between race and treatment modalities for end stage renal failure patients — the “Hutchinson article.” The study tracked the five-year survival rate of three groups of patients: those on dialysis, those receiving cadaveric transplants and those receiving living related donor transplants. It did not, however, take into account co-morbid conditions and other pretreatment differences among patients. Roth testified that, according to the study, the dialysis population statistically underperformed the transplant population, but the survival rate for living related donor patients, while higher, at 90 percent, than that for cadaveric patients, 80 percent, was not statistically significant. He explained, however, that when the patient populations are tailored to take into account co-morbid factors and pre-treatment differences, the studies indicate that the survival rates for dialysis patients and patients receiving cadaveric transplants converge. Roth acknowledged that the Hutchinson data was compiled prior to the introduction of more powerful immu-nosuppressants such as Cyclosporin. He agreed that more recent data indicates that these drugs have resulted in up to an 8 percent increase in graft survival rates at the five year point, but noted that relative long-term survival rates have not changed a great deal. 23. As noted above, both Roth and Arieff testified that race is a factor that affects the survivability of patients receiving transplants as a therapy for end stage renal failure. Roth, who has co-authored a study on the link between race and renal transplantation, explained that blacks receiving a transplant tend to perform worse than similarly situated whites, and that being of African descent has a “significant and striking” negative effect on the outcome of transplantation. Thus, while H.L.A. identical living related donor kidneys transplanted into a black patient have a half-life of 10-15 years, a H.L.A. identical living related donor kidney transplanted into a white patient has a half-life of up to 25 years. Roth also explained that the overall difference in graft failure rates between whites and blacks is dramatic, and falls in the neighborhood of 15-25 percent at the five and ten year points. He added that the immunosuppressant drugs needed to prevent rejection seem to have less of a positive effect on blacks, although the solution might be to provide the drugs in higher doses. He noted that non-compliance, whether as a result of inadequate access and funding or otherwise, is another factor that contributes to the relatively higher graft failure rate. Roth was questioned about the findings of the Hutchinson article and other studies with respect to the relative performance of blacks and whites who receive H.L.A. identical living related donor kidneys. Roth testified that whites receiving H.L.A. identical living related donor kidneys show a better five-year survival rate than similarly situated blacks, whose five-year survival rate approximates that for whites receiving cadaveric transplants. Roth added that blacks receiving cadaveric transplants underperform whites receiving cadaveric transplants. He emphasized, however, that blacks, like whites, show a higher survival rate when given a matched living related donor kidney than they do when given a cadaveric kidney. For this reason, according to Roth, he encourages blacks to find living related donors. Nevertheless, Roth testified that he does not take race into consideration when evaluating the suitability of a patient for transplant. Roth also testified that while some studies indicate that blacks receiving H.L.A. identical grafts run a higher risk of IgA nephropathy impairing the new kidney than do similarly situated whites, he does not feel that the evidence is strong enough to caution against H.L A. identical grafts for blacks suffering from the disease. 24. Roth estimated that the overall cost of a kidney transplant, including the postoperative administration of anti-rejection drugs, drops below that of chronic dialysis at the three year point. During his cross-examination of Roth, counsel for the Defendant referred to a April 28, 1995 letter from Dr. Miller to Dr. Garcia-Mayol suggesting that a kidney transplant becomes more cost-effective than dialysis in as little as a year. Roth did not agree with this estimate. Arieff, like Roth, described the break-even point as roughly three years. We credit the testimony of these experts. For purposes of comparison, Arieff estimated that dialysis costs, on average, $60,000-70,000 a year, while the first three years following a successful transplant cost $200,000. The National Kidney Foundation’s “Getting Ready for a Transplant” states that a kidney transplant “is less expensive [than dialysis] in the long-run.” See P’tiff. exh. 78A. 25. As noted above, Dr. Miller recommended Rose as a viable candidate for a kidney transplant. See F. of F. at 9. When asked about Rose’s viability as a candidate for transplant, Roth noted that while he has seen Miller’s report, he has not interviewed or examined the Defendant. Roth did note that Rose’s history of significant hypertension and his African descent are factors that weigh against a successful transplantation. He also indicated his concern about the possibility of Rose’s non-compliance with postoperative treatments, a concern borne of his impression that Rose may not have been taking the hypertension medicine prescribed for him after his consultations with Gayden, Wanich and Pearl in 1987. Nevertheless, Roth testified that Miller presumably conducted all of the standard evaluations given to transplant candidates at the University of Miami. Roth added that Miller presumably was aware of the aforementioned concerns about the Defendant when he recommended him as a candidate for transplant. Roth further explained, and we find, that the fact Rose will receive a H.L.A. matched living related donor kidney from his brother is strongly in his favor. Roth added that he could not say with a reasonable degree of medical certainty whether Rose would live longer with a transplant than on chronic dialysis, because he has not interviewed or evaluated Rose in person, and is not familiar with how well he has performed on dialysis. Arieff, for his part, testified that it was more likely than not that Rose would live longer if a transplant is performed. 26. The Defendant continues to demand maintenance and cure. Sean Oakley, FHS’s director of human resources since April, 1995, testified that the Plaintiffs have provided Rose with full maintenance and cure since his removal from the ship on June 24, 1994. Based upon a review of the Plaintiffs’ records, Oakley testified that, at the time of trial, Costa and FHS had paid over $100,000 in “cure” and $50,000 in “maintenance” to Rose or his medical providers. At trial, the Defendant suggested, and Plaintiffs did not contest, that Rose currently is unable to work, and is unable to afford the cost of long-term chronic dialysis or a kidney transplant. 27. Roth and Arieff attempted to define the terms “curative” and “palliative” as used in the day-to-day practice of medicine. Roth testified that to “cure” a disease is to eliminate the disease to the extent that it is not likely to impact the patient’s health in the future. On the other hand, he explained that “palliative” is used to describe a treatment (1) administered to a patient with an illness that probably will take his life over a short, definite period of time, and (2) simply intended to make the patient feel more comfortable. As an example of a palliative treatment, Roth cited chemotherapy for a patient with terminal cancer. He added that he views a treatment as palliative only when he knows the patient’s prospects for maintaining life for a meaningful period of time are poor. Roth testified that a third type of treatment, known as “therapeutic,” falls between curative and palliative. He defined “therapeutic” as a treatment that, while not capable of curing the patient’s underlying disease, is nevertheless capable of sustaining the patient’s life in some kind of meaningful sense for a meaningful period of time. As an example, Roth cited the provision of insulin to a patient suffering from insulin dependent diabetes mellitus. He explained that diabetes is not a short-term terminal illness like malignant cancer, and while insulin will not eliminate the diabetes, it does improve the patient’s overall medical condition and facilitate his long-term survival. Another example of therapeutic treatment discussed by Roth concerned Wilson’s disease. According to Roth, without the administration of peni-cillamine, a Wilson’s disease patient likely will die. With the drug, however, the patient may live normally for many years even though the underlying disease remains in his body. Finally, Roth described coronary artery bypass surgery as therapeutic, because while the surgery does not cure the underlying coronary artery disease, it ensures that the patient will maintain a sufficient blood flow to sustain life for a meaningful period of time. He added that some procedures can be curative as well as therapeutic. He also noted that while some curative treatments can be life-saving, others (such as the treatment of arthritis) just improve quality of life. Arieffs definitions, for the most part, mirrored those of Roth. He defined a palliative treatment as one that does little other than make the patient more comfortable, and cited chemotherapy for a terminally ill cancer patient as his example. At some points, he defined a curative treatment as one that either eliminated the underlying disease or eliminated the effects of the disease. At other points, he referred to eliminating the effects of the disease, without eliminating the disease itself, as therapeutic. Arieff, like Roth, described the provision of insulin to a diabetic and penicillamine to a Wilson’s disease patient as therapeutic interventions. The Court credits Dr. Roth’s description of how the terms curative, palliative and therapeutic are used in day-to-day practice by medical professionals. Roth testified that kidney dialysis and kidney transplantation are therapeutic treatments, rather than palliative or curative. At one point, Plaintiffs’ counsel asked Roth to consider Wilson’s disease in the context of a definition of palliative as “a treatment that serves to relieve or alleviate without curing.” Roth testified that, using this definition, he would describe Wilson’s disease as palliative. Roth also testified, upon further questioning from Plaintiffs’ counsel, that if he could not use his preferred term (therapeutic), he would describe dialysis and transplantation as palliative rather than curative procedures. He stressed, however, that medical practitioners reject the palliative/curative duality, and emphasized that Taber’s definition of palliative is not the same definition that he or most of his colleagues in the medical profession would adopt. Both Roth and Arieff testified that neither dialysis nor transplantation will “cure” IgA nephropathy. II. CONCLUSIONS OF LAW A. The Doctrine of Maintenance and Cure The general maritime law doctrine of maintenance and cure is of ancient origin. The Laws of Oleron and other medieval sea codes provided special protection for mariners who were injured or fell ill while in the service of their ship. The doctrine has been a part of British maritime law since the Middle Ages, when the Laws of Oleron were brought from France to England, and was incorporated into American admiralty law after the War of Independence. The obligation of a shipowner to provide maintenance and cure under American maritime law was discussed for the first time in Harden v. Gordon, 11 F.Cas. 480 (No. 6,047) (C.D.Me.1823). Drawing on his understanding of the singular hazards that attend the work of seamen and the unique relationship between a seaman and his ship or employer, Justice Story cautioned that “[ejvery court should watch with jealousy an encroachment upon the rights of seamen, because they are unprotected and need counsel; because they are thoughtless and require indulgence; because they are credulous and complying; and they are easily overreached. ...” Seamen are by the peculiarity of their lives liable to sudden sickness from change of climate, exposure to perils, and from exhausting labor. They are generally poor and friendless, and acquire habits of gross indulgence, carelessness and improvidence. If some provision be not made for them in sickness at the expense of the ship, they must often in foreign ports suffer the accumulated evils of disease, and poverty, and sometimes perish from the want of suitable nourishment. Their common earnings in many instances are wholly inadequate to provide for the expenses of sickness; and if liable to be so applied, the great motives for good behavior might be ordinarily taken away by pledging their future as well as past wages for the redemption of the debt. Id. at 483, 485. As recently as 1962, the United States Supreme Court drew on Harden in order to summarize the purpose of the doctrine of maintenance and cure: The reasons underlying the rule, to which reference must be made in defining it, are those enumerated in the classic passage by Mr. Justice Story ... the protection of seamen, who, as a class, are poor, friendless and improvident, from the hazards of illness and abandonment while ill in foreign ports; the inducement to masters and owners to protect the safety and health of seamen while in service; the maintenance of a merchant marine for the commercial service and maritime defense of the nation by inducing men to accept employment in an arduous and perilous service. Vaughan v. Atkinson, 369 U.S. 527, 531, 82 S.Ct. 997, 1000, 8 L.Ed.2d 88 (1962) (quoting Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 58 S.Ct. 651, 82 L.Ed. 993 (1938)). Relying on the principles first articulated by Justice Story, admiralty courts have been liberal in interpreting the doctrine “for the benefit and protection of seaman who are its wards.” As a result, the shipowner’s liability for maintenance and cure is among the “most pervasive” of all, and is “not to be defeated by restrictive distinctions nor ‘narrowly confined.’” Vaughan, 369 U.S. at 531-32, 82 S.Ct. at 1000. Ambiguities or doubts in the application of the law of maintenance and cure are resolved in favor of the seaman. Gaspard v. Taylor Diving & Salvage Co., Inc., 649 F.2d 372, 374 (5th Cir.1981) (citing Vaughan, 369 U.S. at 532, 82 S.Ct. at 1000), cert. denied, 455 U.S. 907, 102 S.Ct. 1252, 71 L.Ed.2d 445 (1982). In other words, “if leeway is to be given in either direction, all the considerations which brought [the doctrine] into being dictate it should be on the sailor’s behalf.” Aguilar v. Standard Oil Co., 318 U.S. 724, 735, 63 S.Ct. 930, 936, 87 L.Ed. 1107 (1943) (adding that “[the] tendency to confine the scope of the [shipowner’s] obligation [to seamen] is consonant neither with the liberality which courts of admiralty traditionally have displayed toward seamen, who are their wards, nor with the dictates of sound maritime policy”). Maintenance is a per diem subsistence allowance designed to provide the seaman with compensation sufficient to cover his food and lodging until the time of maximum medical improvement. It is intended to encompass the reasonable cost of food and lodging comparable to that received aboard the vessel. Cure represents the cost of medical and nursing care during the seaman’s affliction, again until the point of maximum improvement. See Nichols v. Barwick, 792 F.2d 1520, 1522 (11th Cir.1986); DiBenedetto v. Williams, 880 F.Supp. 80, 86 (D.R.I.1995) (citing Schoenbaum, Admiralty and Maritime Law, Vol. 1, § 6-32 at 358 (2nd ed. 1994)). The right to maintenance and cure springs from the seaman’s dependence on his ship, and does not turn on fault of the shipowner or the seaworthiness of the vessel. See Nichols, 792 F.2d at 1522; Gaspard, 649 F.2d at 374 n. 3. Moreover, the cause of the ailment is irrelevant, so long as it manifests itself while the seaman is in the service of his vessel. See Baker v. Ocean Systems, Inc., 454 F.2d 379, 383 (5th Cir.1972). The burden of proving the right to maintenance and cure rests with the seaman. Pelotto v. L & N Towing Co., 604 F.2d 396, 400 (5th Cir.1979). In this case, the parties have stipulated that Rose is a seaman who was injured while in the service of the vessel. F. of F., at 1. We find, therefore, for purposes of this Order, that the Defendant had a right to recover maintenance and cure from the Plaintiffs. B. Maximum Medical Improvement The parties also agree that Rose’s entitlement to maintenance and cure continues to the point of maximum medical improvement. Although this seems a rather straightforward concept, its application is not so simple. Once the seaman establishes his right to maintenance and cure, the burden of persuasion shifts to the shipowner to prove that the seaman has reached the point of maximum medical improvement. See, e.g., McMillan v. Tug Jane A Bouchard, 885 F.Supp. 452, 459 (E.D.N.Y.1995). Plaintiffs say their obligation to provide maintenance and cure ended when Rose was stabilized on dialysis after being transferred from the ship to a hospital on shore, because IgA nephro-pathy was incurable then and now. Rose responds, in essence, that he has not reached maximum medical improvement, since dialysis or a transplant from a matched living related donor undoubtedly create a reasoned prospect of a betterment of his condition. Put simply, according to Rose, these treatments are all that keep him from death. Throughout time, judges have adopted various formulations of the maximum medical improvement test. Harden, while recognizing that a shipowner’s duty to provide maintenance and cure extends beyond the voyage itself, did not specify how long after the termination of the voyage these obligations continued. Some nineteenth century courts followed Justice Story’s reasoning in a later case, Reed v. Canfield, 20 F.Cas. 426 (No. 11, 641) (C.C.Mass. 1832), by holding that the shipowner is liable until “the cure is completed, at least so far as the ordinary medical means extend.” Other courts held that the privilege of a seaman to be cured at the expense of his ship continued no longer than his right to wages under his contract of employment. See, e.g., Nevitt v. Clarke, 18 F.Cas. 29 (No. 10, 138) (S.D.N.Y.1846). The Supreme Court resolved this debate in Calmar, holding that the obligation continues for a “reasonable time” after the voyage: 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 such improvement in the seaman’s condition as reasonably may be expected to result from nursing, care and medical treatment. This would satisfy such demands of policy as underlie the imposition of the obligation. Beyond this we think there is no duty.... Id, at 530, 58 S.Ct. at 654. In Farrell v. United States, 336 U.S. 511, 69 S.Ct. 707, 93 L.Ed. 850 (1949), the Court replaced the reasonable time test with the concept of maximum cure, in accordance with the Shipowners’ Liability Convention of 1936. Justice Jackson, writing for the majorify, suggested that “the duty of the ship to maintain and care for the seaman after the end of the voyage only until he was so far cured as possible” had been part of American admiralty law for years. He reasoned that the doctrine of maintenance and cure “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. Indeed the custom of providing maintenance and cure in kind and concurrently with its need has had the advantage of removing its benefits from the danger of being wasted by the proverbial improvidence of its beneficiaries.” Id. at 519, 69 S.Ct. at 711. Thus, in Vella v. Ford Motor Co., 421 U.S. 1, 5, 95 S.Ct. 1381, 1383-84, 43 L.Ed.2d 682 (1975), the Court agreed that “maintenance and cure continues until such time as the incapacity is declared to be permanent.” Lower courts in this Circuit and elsewhere have struggled to come up with a more practical standard to be applied in maintenance and cure actions. In Sefcik v. Ocean Pride Alaska, Inc., 844 F.Supp. 1372, 1373 (D.Alaska 1993), for example, the court stated that maximum cure is reached when “no further improvement in the [seaman’s] health” is possible. In Desmond v. United States, 217 F.2d 948, 950 (2nd Cir.1954), cert. denied, 349 U.S. 911, 75 S.Ct. 600, 99 L.Ed. 1246 (1955), by contrast, the court stated that the shipowner “is liable for maintenance and cure only until the disease is cured,” without referring to the seaman’s health. To a certain extent, the imprecise language that permeates in the ease law is an indication of how infrequently the injuries or ailments for which seaman seek relief push the limits of the doctrine. Nevertheless, this lack of clarity is an indication of how contextually-driven the analysis will be when a court is asked to determine whether a seaman has reached maximum medical improvement. The common law is nothing if not flexible, and must be adapted to fit the peculiar facts and circumstances of individual cases. The Eleventh Circuit has not addressed the question of when maintenance and cure benefits ought to terminate. Cf Eleventh Cir.Dist. Judges Ass’n, Pattern Jury Inst.: Civil Cases, Fed.Claims Inst. No. 5.2 (1990) (stating that “a seaman is entitled to receive maintenance and cure from the date he leaves the vessel until the point of ‘maximum possible cure’ under the circumstances, that is, the point at which no further improvement in the seaman’s medical condition is to be reasonably expected”). However, the former Fifth Circuit, whose decisions constitute binding precedent on this Court, settled on a test that looks to the “condition” of the seaman. In Pelotto v. L & N Towing Co., 604 F.2d 396 (5th Cir.1979), the court explained that maximum medical improvement is reached “where it appears that 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.” Id. at 400 (citing Farrell). The court applied this principle to reverse an order of summary judgment that denied the seaman’s claim to benefits. Two years later, the former Fifth Circuit applied the Pelotto test in Gaspard. In that case, a professional diver brought an action against a salvage company after he developed osteonecrosis in his shoulder joints. Quoting the pertinent language from Pelotto, the court explained that “[t]he accepted legal standard holds that maximum cure is achieved when it appears probable that further treatment will result in no betterment of the seaman’s condition.” 649 F.2d at 374 n. 3. The court then reversed the district court’s rejection of a jury finding that the diver was entitled to damages for the defendant’s arbitrary denial of maintenance and cure benefits. Id. at 376; see also Kratzer v. Capital Marine Supply, Inc., 490 F.Supp. 222, 229 (M.D.La.1980), aff'd, 645 F.2d 477 (5th Cir.1981) (noting that “[mjaximum cure is achieved when it appears that further treatment will result in no betterment of the seaman’s condition”). The language of these eases is consistent with prior Fifth Circuit formulations, see Dobbs v. Lykes Brothers Steamship Co., 243 F.2d 55, 58 (5th Cir.1957) (stating that the right to maintenance and cure extends to “a fair time after the voyage in which to effect such improvement in the seaman’s condition as reasonably may be expected from nursing, care and medical treats ment”), cert. denied, 355 U.S. 835, 78 S.Ct. 56, 2 L.Ed.2d 46 (1957), and continues to be followed in the present Fifth Circuit, see L.C. Johnson v. Marlin Drilling Co., 893 F.2d 77, 79 (5th Cir.1990) (citing Gaspard and Pelotto and holding that maximum medical cure exists when “it appears probable that further treatment will result in no betterment of the seaman’s condition”). A review of these opinions makes clear that we are concerned with the seaman’s overall medical condition, rather than the discrete ailment or ailments that afflict him. At times, the Plaintiffs appear to agree that the pertinent question is whether the proposed treatment will “cure or improve the seaman’s underlying condition.” P’tiff. Supp. Post-Trial Mem., at 2. At other points, however, Costa and FHS seem to argue that the point of maximum medical improvement exists when the seaman’s underlying disease is established to be incurable, even if further improvement in the seaman’s “condition” is possible. P’tiff. Prop. F. of Fact and Con. of Law, at 22. Language in some older cases from outside this Circuit can be read to support this proposition. In Muruaga v. United States, 172 F.2d 318, 321 (2nd Cir.1949), for example, the Second Circuit stated that “when maintenance and cure has brought about all the improvement to be expected in an incurable disease the shipowner’s liability ends and thereafter the health of the seaman is at his own risk so far as the shipowner is concerned.” Five years later, the Second Circuit echoed Muruaga in Desmond, by stating that a shipowner “is liable for maintenance and cure only until the disease is cured or recognized as incurable.” 217 F.2d at 950. As noted above, however, the pertinent test in this Circuit is whether there is a possibility of a betterment in the seaman’s condition. See, e.g., Pelotto, 604 F.2d at 400. The word “condition” necessarily encompasses something more than the curability of the specific disease or injury that triggered the need for maintenance and cure. Rather, it requires us to look to the overall physical health and bodily function of the seaman, against the backdrop of the underlying disease or injury as well as the effects of that disease or injury. The broad term “condition” permits a court to tailor the remedial doctrine of maintenance and cure to fit the unique facts and circumstances of the case before it. Moreover, the broad term “condition” is consonant with the general proposition that, in resolving maintenance and cure cases, relief is “not to be defeated by restrictive distinctions,” Vaughan, 369 U.S. at 531-32, 82 S.Ct. at 1000, and therefore all doubts should be resolved on the sailor’s behalf. For all of the foregoing reasons, our inquiry does not end with the fact that IgA nephro-pathy — the disease principally responsible for Rose’s loss of kidney function — has been deemed incurable. We are aware that the case law sometimes uses the word “palliative” as shorthand to describe treatments administered after the seaman has reached maximum medical improvement. See, e.g., McMillan, 885 F.Supp. at 461 (explaining that “as long as the seaman’s condition is susceptible to curative as opposed to palliative treatment, the shipowner is liable for maintenance and cure”). Cos-ta and FHS often use the word palliative to describe their view of further treatment for Rose’s kidney ailment. We do not believe, however, that the curative/palliative framework is helpful, at least under the facts and circumstances of this case. To begin with, neither the Plaintiffs’ expert, Roth, nor the Defendant’s expert, Arieff, described dialysis or transplantation as merely palliative treatments (despite the express invitation of Plaintiffs’ counsel). Both experts explained that, in the medical profession, the word palliative is used primarily to refer to treatments administered to patients with terminal ailments who have no genuine prospect of survival for any meaningful period of time. See F. of F., at 27. For this reason, both Roth and Arieff testified that, since dialysis and transplantation do offer end stage renal failure patients a genuine prospect of survival for a meaningful period of time, these treatments would not be deemed palliative, as that word is used among physicians. Id. Instead, according to Roth and Arieff, dialysis and transplantation would be regarded as “therapeutic” treatments. Id. The term therapeutic, like the terms curative and palliative, has not received meaningful explication in the case law of maintenance and cure. Several former Fifth Circuit panels, however, have suggested in dicta that the shipowner’s obligation to support the seaman until the point of maximum medical improvement includes the provision of “therapeutic” benefits. See, e.g., Gaspard, 649 F.2d at 374 n. 3 (noting that “cure” involves the payment of “therapeutic, medical and hospital expenses”); Pelotto, 604 F.2d at 400 (same). In their proposed conclusions of law, Costa and FHS cite Travenol Laboratories, Inc. v. United States, 17 C.I.T. 69, 813 F.Supp. 840 (1993), for the proposition that kidney “dialysis, although therapeutic, is not curative in nature.” In Travenol, the Court of International Trade considered the healing properties of certain imported dialysis devices in order to ascertain the appropriate customs duties that should have been paid. The relevant statute allowed certain medical items intended for the use or benefit of the disabled to enter the United States without tariff, subject to an exclusion for “therapeutic and diagnostic articles.” The court noted that, under Richards Medical Co. v. United States, 910 F.2d 828 (Fed.Cir.1990), an imported device does not come within the definition of therapeutic unless it is curative. It therefore held that the devices in question were entitled to enter duty-free, because dialysis does not cure kidney disease and therefore the devices were not therapeutic. Id. at 844-45. Travenol does not purport to discuss the proper definition of curative or therapeutic outside of the discrete realm of customs duties. More to the point, Travenol does not shed meaningful light on the question before us: whether further treatment will result in a betterment of Rose’s medical condition. At all events, as Pelotto and Gas-pare? suggest, the word therapeutic is not, either in the law or among medical professionals, the mere functional equivalent of palliative. Thus, the Plaintiffs’ repeated characterization of dialysis and transplantation as palliative remedies is unhelpful, and has no persuasive support in the record of this case. We are familiar with no maintenance and cure cases involving an incurable kidney disease that requires treatment in order to sustain life. In Dobbs v. Lykes Brothers Steamship Co., the former Fifth Circuit considered the maintenance and cure request of a seaman who suffered from a kidney ailment diagnosed as “chronic glomerulonephritis (nephrotic stage).” The seaman received six months of treatment for his ailment at a marine hospital. After his doctors concluded that Dobbs was fit to return to work, he was discharged and directed to return as an outpatient for periodic check-ups. The court of appeals upheld the district court’s denial of benefits, quoting the lower court’s finding that the seaman, “at the time of his discharge ... had received all the improvement in his condition that reasonably could be expected to result from nursing, care and medical treatment; he had received the maximum benefits available from such nursing, care and medical treatment.” 243 F.2d at 57 n. 3. It cannot be said on this record that Rose has “received the maximum benefits available from ... nursing, care and medical treatment.” The record makes plain that appropriate treatment, in the form of dialysis or a transplant, unquestionably will result in a betterment of Rose’s medical condition. Without medical attention, Rose will die within a matter of weeks, due to the accumulation of toxins and other consequences of end stage renal failure. F. of F. at 13. With medical attention, however, his bodily function improves to the point that life may be maintained with some degree of normality. Both Roth and Arieff testified, and we find, that dialysis and transplantation offer Rose a reasonable probability to sustain life in a meaningful way and for a meaningful period of time. Id. at 15, 17, 22, 25. This is, therefore, not a case where the available treatment does nothing more than ease pain and suffering, or make the patient more comfortable. The difference here is one of life or death. In the most basic sense, of course, dialysis and a transplant “better” Rose’s medical condition by removing toxins and replacing other vital kidney functions that were destroyed as a result of the disease, and would not be performed in lieu of appropriate medical care. Id. at 14. Yet dialysis and transplantation will improve other aspects of Rose’s condition, among which are his level of blood abnormalities, his overall body chemistry, his cardiac function and the responsiveness of his peripheral nerve system. Id. at 14, 20. These changes do more than improve quality of life or simply make him “feel better;” they extend life, and make the patient healthier in the most marked and profound sense. We stress that neither Dr. Roth nor Dr. Arieff suggested that no further improvement in Rose’s condition would be possible after receiving dialysis or a kidney transplant. Cf. Tullos v. Resource Drilling Inc., 750 F.2d 380, 388 (5th Cir.1985) (noting that termination of the seaman’s right to maintenance and cure should be based on an “unequivocal medical determination”). Although the touchstone of our review under binding former Fifth Circuit precedent focuses on the physical condition of the seaman, our resolution of this issue does not turn entirely on the potentially expansive scope of that word. Regardless of whether the point of maximum medical improvement is defined by reference to the seaman’s “condition,” “incapacity,” “illness” or “affliction” (all of which appear in the case law), maintenance and cure, if it means anything, necessarily encompasses a situation where the proposed treatment represents the difference between life at a reasonable level of functioning for an indefinite period of time, and plain, certain and immediate death. The doctrine was designed and intended to hold the shipowner responsible for treatments that move the patient to an improved state of health. For purposes of comparison, when the available treatment leaves the seaman feeling better without enhancing his bodily function and moving him to an improved state of health, then the point of maximum medical cure has been reached, and the shipowner’s liability may be extinguished. Here, dialysis and transplantation will improve Rose’s condition in the most profound sense: by creating a reasonable prospect of life for an indefinite period of time at a reasonable level of functioning. Since the betterment of condition offered by dialysis or a transplant boils down to the simple question of life or death, this ease is dissimilar from those actions where the seaman sought continued benefits for mere pain and suffering associated with an incurable ailment or disease. In Belcher Towing Co. v. Howard, 638 F.Supp. 242 (S.D.Fla.1986), for example, the district court denied maintenance and cure to a seaman who had suffered incurable soft tissue injuries that left a lingering pain in his neck and back. In Lindgren v. Shepard, 108 F.2d 806 (2nd Cir.1940), the court denied continued maintenance and cure to a syphilitic who required periodic treatments and examinations for the rest of life in order to prevent painful relapses, but not to cure the disease. In Stewart v. Waterman Steamship Corp., 288 F.Supp. 629 (E.D.La.1968), aff'd, 409 F.2d 1045 (5th Cir.1969), the court denied further maintenance and cure to an epileptic seaman who sought drug treatments to control his occasional seizures. In Berke v. Lehigh Marine Disposal Corp., 435 F.2d 1073 (2nd Cir.1970), cert. denied, 404 U.S. 825, 92 S.Ct. 55, 30 L.Ed.2d 53 (1971) the court denied further maintenance and cure to a seaman who sought relief from the effects of chronic bronchitis where “further treatment would only relieve the symptoms but would not permanently improve the condition.” And in Farrell, the Supreme Court denied continued maintenance and cure to a seaman who required occasional care to alleviate headaches and epileptic convulsions stemming from incurable injuries sustained in a fafi. 336 U.S. at 519-20, 69 S.Ct. at 711-12. In none of these cases did the seaman seek treatment for an incurable ailment or disease that, unless remedied, would result in his almost immediate death. For this reason, we find these cases unpersuasive on the discrete issue before us, where far more than the alleviation of pain and suffering is at stake and the proposed treatments offer a reasoned prospect of long-term survival. Nevertheless, these opinions underscore the difficult task that courts must undertake when attempting to navigate between the principle that benefits must continue if the available treatment promises meaningful life over certain death, and the countervailing rule that benefits are improper when the available treatment simply make the patient feel better as he nears imminent death. In their proposed conclusions of law, Plaintiff cite the Second Circuit’s opinion in Mu-ruaga for the proposition that “treatment for an incurable cardiovascular disease has been deemed outside the scope of maintenance and cure.” This is an incorrect characterization of the case. In Muruaga, the seaman was diagnosed with an incurable hypertensive cardiovascular disease. The seaman’s doctors represented that he would need treatment for the remainder of his life (although the opinion does not suggest that the seaman would have died within a matter of weeks without treatment for the disease). The district court found that the point of maximum medical improvement had been reached. The Second Circuit reversed, stating that “[a]s we cannot tell from this record when, if ever, the [seaman] did reach the point of maximum improvement in his incurable condition,” the case would be remanded for a finding on the issue. Thus, even if we were to accept that the cardiovascular disease in Muruaga fairly can be analogized to IgA nephropathy, the Second Circuit’s opinion is not helpful in resolving the case at bar. Moreover, Muruaga is not binding precedent, and does not apply the “betterment of condition” standard that is the law of this Circuit. Plaintiffs also quote from the Third Circuit’s opinion in Cox v. Dravo Corp, 517 F.2d 620 (3d Cir.), cert. denied, 423 U.S. 1020, 96 S.Ct. 457, 46 L.Ed.2d 392 (1975). In Cox, a seaman (through his widow) sought maintenance and cure for his injuries. At trial, the evidence established that Cox’s injuries were permanent and disabling. Although Cox received physical therapy and medications for headaches and dizzy spells attendant to the injuries, Cox’s doctor conceded that the treatments simply “made Cox feel better and relieved his aches and pains [since] no cure could be effected from such treatments and ... they would not arrest Cox’s progressively deteriorating physical condition.” Id. at 622. The district court, relying on two prior Third Circuit cases — Neff v. Dravo Corp., 407 F.2d 228 (3d Cir.1969) and Ward v. Union Barge Line Corp., 443 F.2d 565 (3d Cir.1971) — held that the shipowner was liable for the cost of the therapy and the medication. On appeal, the Third Circuit reversed the district court’s order. In reaching this conclusion, the panel retreated from language in Neff and Ward that could be read to suggest that a shipowner’s obligation to provide maintenance and cure encompassed mere palliative treatments of the kind at issue in the case under review: [S]o long as palliative treatment to arrest further progress of the disease or to relieve pain is still medically possible, these decisions permit an award of maintenance and cure even when a seaman has become totally and permanently disabled. In the hypothetical context of an illness entirely unrelated to the seaman’s employment, a malignancy for example, the rule on its face seems expansive. Such a result is not, we believe, permitted by the definition of maintenance and cure [adopted by the Supreme Court].... It may be sound social policy that vessel and cargo be required to insure against the cost of palliative or preventive care and for maintenance of seamen who become permanently disabled or incurably ill while engaged in the service of their vessel. But the Supreme Court has expressly rejected ... such a rule. Id. at 624, 627. Cox, therefore, does nothing more than re-affirm the accepted principle that a shipowner is not required to provide maintenance and cure where the proposed treatments relieve pain and suffering without making the seaman healthier or improving his physical condition. Here, there can be no doubt that further improvement in Rose’s condition is possible, whether the benchmark of his improved condition is life or death, or more subtle, but no less significant, developments such as purged toxins, lowered blood abnormalities and enhanced