Court rules HSA doctors have immunity from negligence suits

Staff at the Cayman Islands Hospital have immunity from being sued unless "bad faith" can be proved.

Doctors at the Cayman Islands Hospital cannot be sued if a patient suffers death or injury as a result of their negligence under current Cayman Islands Law, a judge has ruled.

In a judgment published Friday, Justice Richard Williams upheld the contentious section 12 of the Health Services Authority Law that provides blanket immunity from medical malpractice suits for anyone who works for the authority, except in cases where “bad faith” can be proved.

He said he reached that conclusion despite being personally “uncomfortable with such immunity.”

The judge adjourned his decision on a separate application that the law is incompatible with the Cayman Islands Bill of Rights, to give the attorney general another chance to join the case and justify that policy in court.

The ruling follows arguments in the case of Norene Thompson, whose child suffered serious birth defects as a result of what she alleges was the negligent management of her labor and delivery at the Cayman Islands Hospital. The doctor involved has denied that she was negligent and the merits of the claim have not been assessed at this stage.

In an earlier hearing, the Health Services Authority asserted that its staff are exempt from liability under section 12 of the HSA Law.

The disputed section states, “Neither the authority nor any director or employee of the authority 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.”

Lawyers for Ms. Thompson and her daughter had argued that section 12 of the HSA Law should not be seen as giving immunity in cases of medical malpractice. They suggested this was inconsistent with other areas of legislation and that it cannot have been the intention of legislators to bar patients who suffered at the hands of negligent medics from the right to sue.

Justice Williams ruled against them on this point. He said the “plain and unambiguous wording” of section 12, exempted the defendants from liability unless a patient can prove “bad faith” – which essentially means the injury was caused deliberately.

However, he said the implications of this interpretation were “troubling” and adjourned a separate application, from lawyers acting for Ms. Thompson, that the law be declared incompatible with human rights guaranteed under the constitution.

“The issue as to whether a statute providing immunity against claims in damages, including for clinical negligence, is incompatible with the Bill of Rights is one of great public importance,” he said.

He noted that the attorney general had initially indicated that he did not wish to “intervene” in the case, but said the issue was of such public importance that it would be difficult for the court to make a ruling without his input.

The judge added that the government may want to reconsider the implications of that immunity.

“Although the unambiguous and clear words in [section 12] may be consistent with the Legislature’s cost cutting and protective public policy prevailing eleven years ago at the time of its enactment, a later Government may feel it appropriate to openly clarify to the voting and wider public, who it is obligated to serve and protect, whether its declared policy is to retain legislation that denies remedies in tort for medical negligence against the Authority, its directors and its employees and to explain the justification for such a policy at this time.

“In light of the expressed view that civil liability can be regarded as an important mechanism to ensure quality of health service, one might ask whether such immunity from claims in damages for the Authority, its directors and employees inspires or hinders patients’ confidence in the Authority and the services it offers,” the judge wrote.

The ultimate decision on whether section 12 is compatible with the Bill of Rights may come too late for Ms. Thompson and her daughter, who is now 10 years old.

Even if the court decides the law breaches human rights guaranteed under the constitution, it is not certain that this could be applied to cases which pre-date the Cayman Islands Constitution, which came into effect in 2009, four years after the birth of the child.

Justice Williams opined, “The separate issue about the retroactive effect of the Bill of Rights is also one of great public importance.”

The ultimate outcome could have implications for a number of other cases, including for the family of Kate Clayton, a British dive industry worker who died last year as the result of a failed tracheotomy procedure at the Cayman Islands Hospital, according to a U.K. coroner’s ruling.

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  1. This report is very disturbing for the people of this island; and I am sure for many doctors too; most persons are not aware of section 12 of the HSA Law, and one thing is clear, that is the AG has been put in a “Hot Seat”
    To read the contents of this report is very disturbing and a hard pill for any patient to swallow. One will throw their hands in the air and sadly think, what else can one do. They have to have a medical treatment and cannot afford to go anywhere else except the hospital because they have CINICO; and further to say this is a topic whereby most people are scared to death of, and not too many want to talk about publicly.
    In my opinion it is very important; and what I really believe is that this report and piece of legislation is going to cause people to rethink about visiting the hospital for serious complaints. ” Already”, whether some doctors are aware of it or not, and I am sure they are, many doctors at the HSA are on the “Don’t go to him list” This is frightening whether we want to believe it or not.
    Now the question is, what is the Government’s going to d about it; and I said Government’s with an ” S” because all should be very concerned. The only place people are not choosing their doctors at HSA is in A&E, and that is because they have no choice, but if you visit the Health Clinics all over the island you will notice one doctor will have thirty patients, while other doctors only have five, then you want to wonder why.
    My feelings on this, is that section 12 of the HSA law needs revisiting by or legislators. “Full stop” Because as it is now it poses problems whereby not every one will be willing take this pill with a glass of water, and as we would say “Prevention is better than a pound of cure”

  2. Does this means that The Grand Court or the Privy Council can struck own the offending statute for being in conflict with the Constitution or force Parliament back to the drawing -Board to re-enact the law so that it is in compliance with the Constitution,since the former is a superior Law? It would be interesting to see how this will be resolved. I know that in the USA once the Supeme Court declare a statute unconstitutional this would be the case. And what of the innocent users of the services of the HSA? Common sense wouuld say that they should be protected Vis-a-vis the Powerful HSA. This should be interesting