Negligent medics were never intended to have blanket protection from being sued if a patient is killed or injured as a result of their mistakes, according to the health minister responsible for the legislation.
Speaking in the wake of a judge’s ruling that the controversial section 12 of the Health Services Authority Law provides blanket immunity from lawsuits for all HSA staff, Gilbert McLean, who was minister when the law was passed in 2004, said he was shocked.
He urged government to change the law as soon as possible.
“It certainly was not the intention of legislators or government to exempt doctors of the HSA from liability of malpractice, and I as minister held no such thought, then or now.
“It has always been my view that the medical profession is the only profession that legally plays so significant a role between health and sickness, life and death and possible injury by a mistake.
“If someone loses their life or sustains injury due to malpractice, the least that should be available to the victim is compensation through a financial penalty.”
He said until publicity around the recent case, he was unaware that Section 12 was being used to provide protection to HSA staff in compensation claims, including medical negligence. He said he did not remember the full discussions around each clause of the law, but his recollection is that the intent of the disputed section was to provide some level of protection for directors on the HSA board.
“In my opinion, it is not beneficial to the provision of affordable, high-quality healthcare if there is excessive litigation in a delivery system, but where healthcare practitioners are of the opinion that no matter what they do they cannot be held accountable, [except if the act or omission was in bad faith], that will only result in abuse and a deterioration in the quality of care provided by the healthcare system,” he said.
“I hope that Section 12 of the HSA Law will be amended to reflect the initial intent,” he added.
Justice Richard Williams ruled last month that the disputed section provides blanket immunity from medical malpractice suits for anyone who works for the authority, except in cases where “bad faith” can be proved. His ruling followed arguments in the case of 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.
The Health Services Authority asserted that its staff are exempt from liability under section 12 of the HSA Law and the judge agreed, despite saying he was personally uncomfortable with such immunity.
Section 12 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.”
Justice Williams said the implications of the clause were “troubling” and 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. But he said the wording of clause 12, regardless of his discomfort, is “clear and unambiguous.”
Mr. McLean said he could not explain the precise wording. He said he had been unaware until the recent ruling that such a clause existed in the law, which he tabled in the Legislative Assembly, but was drafted by government’s legal experts.
Mr. McLean added, “However clause 12 in the HSA Law may have been constructed, it was never intended that the health practitioners at the HSA would be immune from negligence claims.”
He said the Cayman Islands Hospital and every other healthcare facility on island is required to maintain medical malpractice insurance as a result of the Health Practice Law, which was also passed during his tenure as minister.
He said he was aware that the HSA maintains medical malpractice insurance.
“It should thus be clear to see that the intention was to have malpractice insurance and no exceptions were made to exclude any group of employees or practitioners in the Health Practice Law.”
He said any discussion of legal immunity at the time the 2004 law was being drafted had centered on the board of directors and their concerns about liability, in a personal capacity, for decisions made by the board in good faith.
He added, “The board saw its responsibility as largely dealing with administrative policy matters. Beyond that, it took the position that the medical environment was a very specialized field, delivering healthcare services and was required to enforce and operate within standards, procedures and practices appropriate to the medical profession, which were outside the competence of the board to determine, thus there was clear separation of responsibility between the two.”
Lawyers from Samson and McGrath, who brought the landmark case on behalf of Ms. Ebanks and her daughter, made similar arguments in court, but the judge ruled that the wording of the clause was clear.
A separate hearing will be held later this year on the issue of whether a law barring the right to sue for victims of medical negligence breaches human rights protections guaranteed under the constitution.