Health chiefs paid negligence settlements

The Health Services Authority has paid out-of-court settlements to at least eight people who brought medical negligence claims against it since 2005, according to an affidavit from CEO Lizzette Yearwood.

Brief details of the affidavit are contained in a lengthy legal judgment which concluded that the public hospital and its staff are protected from negligence lawsuits under section 12 of the HSA Law.

Despite that “blanket immunity,” Ms. Yearwood acknowledged in her testimony that the hospital had settled such cases out of court on numerous occasions.

Ms. Yearwood disclosed that there have been around 17 claims since 2005 and that at least eight involved settlement, Justice Richard Williams wrote in his judgment, which was published on Feb. 9.

Evidence of the private payouts emerged after a hearing involving Norene Ebanks, 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.

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Ms. Ebanks tried to sue the hospital on behalf of her daughter Donette, now 10. A judge ruled Friday that the contentious section 12 provided the hospital with immunity in negligence cases, as the HSA had asserted.

Lawyers acting for Ms. Ebanks (formerly Thompson) had argued that the disputed section was being wrongly interpreted. They cited the fact that hospital doctors took out malpractice insurance and that the HSA had made previous compensation payouts as evidence that the law was not intended to provide immunity from negligence claims.

The judge dismissed the argument, saying the wording of the law was clear and unambiguous, though he conceded he was “uncomfortable with such immunity.”

He said the fact that the Health Services Authority had made payouts in the past did not change his interpretation of the wording of the law.

The judge wrote that Ms. Yearwood, in her affidavit, had also suggested that section 12 had been used successfully as a defense against at least six other negligence claims.

Norene Ebanks cares for her 10-year-old daughter Donette Thompson, who has cerebral palsy. - PHOTO: MATT LAMERS
Norene Ebanks cares for her 10-year-old daughter Donette Thompson, who has cerebral palsy. Ms. Ebanks tried to sue the public hospital on behalf of her daughter. A judge ruled Friday that the contentious section 12 provided the hospital with immunity in negligence cases. – PHOTO: MATT LAMERS

Summarizing the evidence, he added that lawyers for the HSA had highlighted that although some claims had been settled out of court, there had been no admission of liability on the part of the authority.

He said he had accepted it would be unfair to give too much weight to the settlements in other clinical negligence claims because the authority was restricted by legal professional privilege from giving a full explanation. He added that other factors could have influenced decisions to pay out.

“When reaching a settlement about a claim, a number of factors come into play, one being the potential size of damages in relation to the likely legal costs of contested proceedings.”

James Kennedy of Samson and McGrath, which represented Ms. Ebanks and her child in the case, said the out-of-court settlements were brought up as evidence, in the eyes of the plaintiff, that the Health Services Authority had on other occasions doubted that section 12 provided immunity for its staff.

He said the judgment Friday, which affirmed that section 12 does provide such immunity, made it highly unlikely that patients would get out-of-court settlements in the future.

He said the law firm is contemplating an appeal on that decision as it simultaneously moves forward with a Bill of Rights challenge to the law.

“If somebody commits an act of negligence, it is a long-standing principle of English law that the victim should be compensated by damages in a sum that will put them back as nearly as possible into the same position as they would have been if the negligence had not occurred,” he said. “Section 12 takes away the ability of people to get that compensation for negligent acts done to them.”

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  1. Two things come to mind, and although it is human to err; we must first consider how we hire, hiring and keeping the best doctors and nurses at our hospital; and we SHOULD consider doing the right thing in such circumstances no matter the “catch” of the law.
    I find Mrs. Yearwood to be a very caring , God fearing professional woman, and I am sure if it was left to her she would do what her heart tell her, but when the law makes it difficult, then how far can one really go.
    I sincerely believe the law should be revisited and amendments made, because things like this can leave a sour taste in everyone’s mouth.

  2. Ms. Ebanks should try Constraint-Induced therapy for her daughter in the Taub Therapy Clinic, the USA. It is a family of rehabilitation therapies designed to help “rewire” the brain and thus regain some level of limb function in those who have had an injury or illness including cerebral palsy.
    I do hope she gets compensation from HSA. The law is supposed to protect people like her, not the other way around.

  3. There must be ways to explain the reasons for the settlements and the reasons for refusing to settle without breaching legal professional privilege. The worrying thing about this situation is that it is very tempting for people to assume (and I’m not for one minute suggesting it is what happened) that this is yet another case of not what you know but who you know dictating who gets paid and who doesn’t.

  4. lm proud of Ms Yearwood,certainly as a director acting in this case with not only dignity but also integrity which is very important in this line of business.
    The public needs to hear from the Chairman of the HSA in this matter ref the way forward amendments,enactions of the law etc. and any apologies forthcoming .
    Its time for damage control and restore faith back into John Public.

    Dr.Florence Goring-Nozza,D.Div