For the purposes of openness and transparency, the Cayman Islands Hospital ought to put up a sign in the emergency room, each waiting area and operating room to enlighten patients as to government policy: “Management and staff (including physicians) are not responsible for any injuries or deaths that may occur.”

It seems only fair that people are aware of the risks, in light of the recent Grand Court ruling that upholds a section of the Health Services Authority Law granting the public healthcare system and its personnel immunity from medical malpractice lawsuits (unless “bad faith” can be proven, which is an extremely onerous legal hurdle to overcome).

In other words, if you go to a public hospital or clinic in Cayman, and a doctor or nurse employed by the authority completely botches a procedure — maiming, disabling or even killing you — they are protected by law from being held accountable in a court of law.

Make no mistake. We do not disagree with the judgment handed down by Justice Richard Williams. Like him, we do not see any other reasonable interpretation of section 12 of the HSA Law, which reads: “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.”

(See how clearly Cayman’s laws can be drafted, when it serves to protect the interests of a handful of public servants at the expense of the general public?)

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In addition to his interpretation of the law, we also concur with Justice Williams’s opinion about the law, i.e. that he is personally “uncomfortable with such immunity” and feels the implications of the law are “troubling.”

He’s right. This isn’t merely an academic exercise. Section 12 carries real consequences.
Take, for example, the front page story in today’s Compass about plaintiff Norene Ebanks (formerly Thompson), whose 10-year-old daughter Donette was born with cerebral palsy, a condition that has robbed her of the ability to walk, talk or even eat solid food.

Ms. Ebanks claims her daughter’s disabilities are a result of negligence by the HSA — an argument the authority denies. Section 12, however, makes it so that no one will ever know why Donette has cerebral palsy, because it prevents Ms. Ebanks from seeking compensation, and forestalls an adjudication of the evidence.

Justice Williams rightfully gave weight to the consideration of whether section 12 potentially runs afoul of the Cayman Islands 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.

On a less fundamental, perhaps, but more immediate note, the legal fact that public hospital staff cannot be held liable for deadly mistakes and mishaps is a confidence-shaker in the public healthcare system. Imagine a private citizen who is advised by her doctor to undergo a medical treatment that can be performed at the public hospital, Chrissie Tomlinson Memorial Hospital, Health City Cayman Islands or in Miami, Florida — with no significant difference in cost or quality. We don’t know which facility that person would pick — but we know the first one we’d cross off our list: the public hospital.

Fortunately for Cayman’s civil servants, they enjoy free health coverage through CINICO. Unfortunately, they are funneled into the public healthcare system where, again, they have little recourse if they are the victims of medical malpractice.

As is the civil service’s free health plan, the blanket immunity granted to the public healthcare system is yet another example of the government carving out special protections for itself, avoiding responsibility for its actions and competing on unfair and unequal terms with the private sector, which government forces to adhere to a different and stricter set of regulations.

In this case, however, civil servants — who get free healthcare but only at the mercy of HSA — may find that those sets of double standards can cut both ways … perhaps even a bit too literally.

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  1. Under the English Common Law principles there is a defence under Latin maxim “Volenti non fit injuria”.In English this means”No Harm To A Willing Party”. It simply means that if someone knows of a risk in using a srvice or a a premises such as a shop or at his/her job etc and accept the risks of injuries to themselves,provided it is made clear beforehand and also that they will be barred from legal actions for their injuries,then they cannot sue,and it can be said that they have accepted the risk(s). But can this be applied when one is ill and seeking medical attention?What aboout someone taken to theER unconscious eg. after a motor accident or is suffering from severe mental disorder as not to understand, who cannot be said to consent and in no position to consent? Then there is the Concept of “Vicarious Liability”.This says that an employer is vicariously liable for the acts or ommissions for their servants (1) provided he/she was acting within the course of his/her employment and(2) was not on a frolic of their own(Deviating from specific instructions of that employer). These are common Law concepts which may displaced by statute laws and statute law might be overturned if contrary to a written constitution and particularly the Bill of individual rights in that constitution. I Dare say it would be very hard on an orinary person facing a powerful State Agency such as the HSA. I would like to see the outcome of any case in this regard.