Law reform body opposes $500,000 cap

Law Reform Commission recommends against a limit on non-economic medical malpractice damages

The Law
Reform Commission has rejected the government’s push to cap medical malpractice
awards at $500,000, which was one of the stipulations of a contract to set up a
medical tourism hospital in Cayman.

The establishment of a cap on
damages for pain and suffering was one of the stipulations the government agreed
to in its deal with Indian heart surgeon Devi Shetty to set up a 2,000-bed
medical tourism hospital locally.

Attorney General Sam Bulgin
requested that the commission, chaired by Langston Sibblies, look into tort
reform, specifically capping non-economic medical malpractice awards and
reducing the amount of time in which patients can sue medical practitioners for
malpractice.

In relation to damages caps, the
commission stated: “It is the belief of the LRC that the courts of the Cayman
Islands continue to be the more appropriate arbiters in terms of assessing and
awarding damages based on principles of justice and having regard to the
specific circumstances of each case. The findings of the LRC do not support
what may be construed as a proposal to implement a fundamental change in the
legal system in the Cayman Islands.”

The commission also pointed out
that statues of limitations could be unfair on plaintiffs who may be unaware of
the existence of an injury or of its severity during the relevant limitation time.

“We are of the view that the
current three year period applicable to personal injury claims is appropriate,
especially since there is no evidence to suggest that it is or has been
prejudicial to litigants and it does not represent a departure from modern
existing legislative trends dealing with limitation periods,” the commission
stated.

“Further, the LRC is not of the
opinion that a distinct limitation period for medical professionals and
institutions can be justified on the basis that the Limitation Law has had an adverse
effect on medical malpractice litigation,” it said.

The commission released its
findings Tuesday as part of a consultation paper, on which members of the
public and interested parties are invited to comment and submit their views.

There is currently no limit to what
a court can award a person suing for medical malpractice or negligence, but the
Law Reform Commission stated that it had been told by Grand Court judges that,
unlike in the US, non-economic damages make up only a small portion of the
total awards paid to plaintiffs.

Non-economic damages refer to pain
and suffering and loss of amenities in personal injury cases, rather than loss
of earnings or medical expenses.

Minister of Health Mark Scotland
said in September that the government planned to bring legislative amendments
relating to caps on medical malpractice in November.

In a deal signed with Dr. Shetty in
April, the government agreed to amend legislation to cap non-economic awards in
medical malpractice and negligence law suits.

Mr. Scotland, in response to a
query on whether the Law Reform Commission’s recommendations would impact the
Shetty deal, said: “The LRC position paper is out for public consultation. At
the same time, we are reviewing the paper. It should be noted that Government’s
proposal for tort reform is not based solely on the agreement with Dr. Shetty –
many of the local healthcare practitioners have for some time been pushing for
this reform in light of increasing cost of malpractice insurance.

“We look forward to the LRC final
report once they have had the benefit of more balanced input from the wider
consultation.”

The commission looked at proposals
to amend the Torts (Reform) Law (1996 Revision) to cap malpractice awards at
$500,000 and to amend the Limitation Law (1996 Revision) to reduce the
limitation period from three years to one year; to reduce the period for
wrongful death from three years to two years; to reduce the ultimate limitation
period for certain negligent actions from 15 years to 10 years.

Instead, the commission recommends
doubling the ultimate limitation period from the existing 15 years to 30 years,
and not changing the limitation period for wrongful death or personal injury.

The LRC had also been asked to look
into reducing the limitation period for minors to one year after they reach the
age of majority, but the commission said that limit should be increased to
three or six years.

The issue of medical malpractice
payouts came to the fore in 2006 when the Cayman Islands Medical and Dental
Society became aware that the Medical Protection Society intended to increase
subscription rates for obstetricians and gynaecologists practising in Cayman by
400 per cent due to reports of court cases in which doctors were sued for high
awards.

These included Panton v. Seymour,
in which the court awarded the plaintiff, who suffered brain damage in a motor
vehicle accident, approximately CI$5.8 million in damages. Those damages
included $350,000 in pain, suffering and loss of amenities.

The commission also referred to
three unresolved malpractice claims pending in the courts arising from the
mismanagement of new born deliveries. According to the Law Reform Commission,
one of these cases was against an obstetrician and was reportedly valued at
CI$3 million. However, the commission stated in its report that it could find
no details of these cases, either because they went unreported or were settled
out of court.

The Medical and Dental Society
argued that the higher premiums would mean that doctors practising specialist
care, such as obstetrics and gynaecology, could no longer afford to practice in
Cayman.

The annual net premium rates for
the six obstetricians practising in Cayman in 2006 were $67,500 each, but they
paid a subsidised amount of $35,800 in subscription rates to the Medical Protection
Society. These subscriptions increased to a high of US$157,397 (CI$127,617) in
2009 and had come down to US$153,649 (CI$124,579) in 2010 – higher than most
other jurisdictions in the Caribbean.

The Law Reform Commission stated in
the draft consultation document that it had been unable to identify any cases
decided in the last 10 years in which the Grand Court of the Cayman Islands had
awarded non-economic damages for medical malpractice.

The only case the commission could
find that related to medical malpractice was Archer v. UBS in 2009. In that
case, the plaintiff fell down stairs and hurt her back. A neurosurgeon carried
out a spinal fusion operation which left her disabled and unable to work. The
court found the surgeon not guilty of negligence. However, it found her
employer guilty of negligence and awarded damages of CI$65,000 for pain and
suffering and CI$282,719 for special damages.

The public and interested parties
are invited to make submissions on any aspect of the draft Consultation Paper,
which can be viewed on www.gov.ky under Features on the home page. Submissions
should be in writing and no later than 19 November to the Director, Law Reform
Commission, c/o Government Administration Building and may be posted, delivered
by hand to the offices of the Commission on 3rd Floor Anderson Square or
emailed to [email protected]

1 COMMENT

  1. Has anyone peiced two and two together yet. Obviously not.

    The reason why the government wants to put a cap on lawsuits…..

    I will hint it to you. What huge medical company wants to come in here and start a huge tourist/vacationers hospital on the island.

    Did anyone get figure it out yet?

    For those that did not get it. The news has recently reported an East Indian doctor who wants to start a billion dollar medical facility on the island.

    And part of the island developing this medical tourism, is to try and cap the medical lawsuits, so it makes it more lucritive for these medical companies to practice here.

    I am pretty sure, that east Indian medical doctor will not start a hospital on this island, without some type of lawsuit cap. To protect his interests.

    Maybe I am wrong. *shrugs shoulders

  2. You are absolutely right. We are blaming the AG, but be assured Big Mac is BEHIND THIS. We need to demand from him if he has a vested financial interest in this hospital, because I’m beginning to wonder.

    Big Beard you need to read the comments of yesterday,it is already flagged as an move to protect the mal practice interest of the new hospital.

  3. Whoever is behind this, it is a good idea. Conspiracy theories or fears of certain politicians lining their pockets should not be a reason to reject this plan. We would not get very far on any issue in Cayman if we did this.

    There will apparently be no cap on economic damages, Just on punitive damages. This means that victims will still be as fairly compensated as they are now.
    Removing the chance for frivolous lawsuits will attract good doctors to our island at the current hospitals as well as any new ones.
    This measure will lower healthcare costs for all of us in Cayman because rest assured it is the people paying the premiums who ultimately pay the claims. There is no magic pot of money for the insurance companies to access.

    This change benefits everybody the same. If there are special deals being cut with this new hospital they should be addressed in a different forum.

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