HSA immunity should not extend to clinical negligence

It was heart wrenching and yet inspiring to see and read about how Norene Thompson cares for her daughter Donette with the pure love of a mother. She was understandably devastated by the ruling that the Health Services Authority is immune from suit in any case where bad faith cannot be proved. By way of full disclosure, I, too, have a court case pending against the HSA but which, I have to say, pales in comparison to what this poor mother and her child have been and are going through.

In that regard, it was interesting to read your editorial of Feb. 25 in which you called the immunity provision “legislative malpractice.” Justice Williams also expressed his discomfort with it. It should be noted, however, that this provision is found in most statutes in Cayman creating public authorities. It is found, for example, in the Monetary Authority Law, Health Practice Law, Airports Authority Law, Information and Communication Technology Law, Maritime Authority Law and Mental Health Commission Law.

Thus, especially if the provision will be found to violate the Bill of Rights at the next stage of the proceedings — which is the highly likely result — there will be a need to examine all legislation relating to statutory authorities with a view to amendment or repeal.

As to the case itself, it was clearly well argued and the Judge gave a well-reasoned decision, but perhaps one vital respect could have been pursued further. Basically, he said that since the words conferring immunity were “clear and unambiguous,” there is nothing he could do. Whereas this is a valid rule of interpretation, it does have a caveat. There were clearly at least two provisions that were clear and unambiguous, namely, the immunity provision itself and the provision that requires the HSA to “maintain and promote the health and wellness of patients.”

The solution in such cases is found in the oft-quoted words of a famous Law Lord who said that in construing written instruments, including statutes, “the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid the absurdity and inconsistency but no farther.” In other words, if the clear and unambiguous reading of one part of a statute appears to conflict with another equally clear and unambiguous provision, the court must always seek an interpretation that reconciles the two provisions.

Now, an immunity provision of this kind is generally meant to protect a regulatory body when it makes an honest mistake. It is never meant to be an indiscriminate bar to suit. For example, imagine that there is a serious and apparently credible allegation of malpractice against a doctor. The Medical Board under the Health Practice Law may suspend the doctor immediately. Later it may emerge that the allegation is false. An immunity provision is aimed at preventing the doctor from recovering damages from the Board for loss of business unless there was bad faith. Indeed, without some limited immunity of this kind, such bodies cannot meaningfully perform their functions. By the same token, the HSA should enjoy immunity in matters not related to the actual provision of medical services. For example, the provision should protect the HSA if, in its financial statements, there was a material misstatement of fact on which a party relied on in deciding to enter into a contract with the institution and thereby suffered loss.

Further, there is another rule of interpretation that says that, as much as possible, it must be assumed that all provisions in statute were inserted for a reason. The interpretation given by the court to the immunity provision amounts so saying that the provision that imposes a duty to provide health and welfare is as good as not being there. One provision was sacrificed to the other.

In a nutshell, the immunity provision was never meant to protect the HSA against clinical negligence, and there are legal authorities that would have helped the court avoid this absurd result. As it is, if an absolutely sozzled ambulance driver from the HSA were to crash and kill a patient they were conveying, there is nothing the court can do about it. This absurd result was avoidable if the appropriate rules of interpretation had been applied.

Bilika H. Simamba
Consultant Legislative Counsel