Anyone injured or killed as a result of a mistake by an employee of the Cayman Islands Health Services Authority faces a very difficult challenge if they seek compensation through the courts, lawyers warned.
A landmark case scheduled for July will seek to challenge a clause in the Health Services Authority Law which has been used to deny patients or their families a way to seek legal redress in medical malpractice cases.
The case could have implications for the family of Kate Clayton, a British dive industry worker who died as a result of a failed tracheotomy procedure at the Cayman Islands Hospital, according to a U.K. coroner’s ruling.
Even with a death certificate that directly attributes blame to a doctor’s error, under a current legal interpretation of Section 12 of the Health Services Authority Law, staff are protected against legal action unless a patient can prove “bad faith” – which essentially means the injury was caused deliberately.
“Proving bad faith is extremely difficult and it is an incredibly high threshold to cross, especially in the context of a personal injury action,” said James Kennedy, a partner at Samson and McGrath Attorneys-at-Law, which is bringing the legal challenge.
Mr. Kennedy said the issue is an extremely important one for the islands. He said in many cases patients have no choice but to use the Health Services Authority and they need the option to seek recourse through the courts if they suffer serious injuries and financial hardship because of a medical error.
“We are not aware of any other jurisdiction that precludes claims in this way. Certainly, the most developed jurisdictions, including the U.K. and the U.S., allow claims for negligence,” he said.
He said the firm has come up against the “Section 12” defense raised by the Health Services Authority in claims brought by clients seeking damages for medical negligence.
Samson and McGrath are currently representing Noreen Thompson, a woman whose child was born with serious injuries.
A writ filed against the Health Services Authority in 2013 claimed the negligence of its staff was responsible for a series of birth defects suffered by the child.
A preliminary hearing has been scheduled for July to determine whether Section 12 of the Health Services Authority Law provides the authority and its staff with a blanket indemnity against such lawsuits.
The relevant section of the law states, “Neither the authority, not any director or employee of the Authority, nor any Committee member, shall be liable in damages for anything done or omitted in the discharge of their respective functions or duties unless it is shown that the act or omission was in bad faith.”
Mr. Kennedy said, “We are before the Grand Court for a hearing to determine the correct interpretation of the section of the law which, it is asserted by the HSA, protects them and their employees from claims for medical negligence, except for cases of bad faith.
“This is an important issue for the jurisdiction as it affects all users of the HSA, including all government employees, pregnant women and the indigenous population who have no choice but to use the HSA.
“If the court agrees with the HSA’s interpretation of the law, all users must do so without the protection of being able to hold those treating them to account for any negligent treatment.”
He said the right of a citizen to claim for medical negligence is also a human rights issue and that the interpretation of Section 12 is one that may end up before the court on the issue of its compatibility with the Cayman Islands Bill of Rights.
A previous lawsuit against the Health Services Authority by a patient claiming medical negligence was thrown out by a judge after the authority successfully argued that Section 12 exempts its employees from liability in damages for their actions unless bad faith can be proven.