The controversial immunity clause protecting negligent doctors from lawsuits is replicated in at least five other laws, including the National Roads Authority Law and the Development and Planning Law, which was passed last year.
Two legal professionals told the Cayman Compass that a judge’s ruling last month on section 12 of the Health Services Authority Law set a precedent that could be used to prevent lawsuits against staff at the NRA, the planning department and the Airports Authority, among others.
“If an NRA employee is driving a vehicle in the course of his employment and crashes into you, the NRA and their insurer could defend the claim on the basis of the immunity,” said James Kennedy of Samson and McGrath, which brought the legal challenge against the Health Services Authority.
Justice Richard Williams ruled that the “clear and unambiguous” wording in that law meant that all HSA staff effectively have immunity from lawsuits unless “bad faith” could be proven. Despite expressing discomfort with the immunity, he said, legally speaking, the authority was within its rights to use Section 12 to prevent patients from bringing medical negligence suits.
Gilbert McLean, the health minister at the time the law was passed, has said that was never the intent. A review of other legislation shows that a version of the section exists in multiple laws passed by different governments over the past decade.
It is not known whether any other authority has used the clause to prevent lawsuits, as the HSA has done.
However, both Mr. Kennedy and Bilika Simamba, a legal consultant who previously worked as a legislative drafter for government, say Justice Williams ruling gives them power to do so in the future.
Mr. Kennedy said the judge’s interpretation of the clause in the HSA law has far-reaching implications for the authorities and departments covered by similar legislation. “With the wide interpretation of the immunity, it means that anyone dealing with these bodies will have no recourse against them if they are negligent in the performance of their duties.”
For example, he said, if an ambulance driver crashed his vehicle into a member of the public in the course of his employment, an insurer could defend the claim on the basis of the immunity. The immunity could also conceivably apply to the Department of Planning if it dealt negligently with a planning application, including unreasonably ignoring objections from the public.
Samson and McGrath is continuing to challenge section 12 of the HSA Law in court, arguing that it contravenes human rights guaranteed by the constitution.
If the challenge is successful, a rewrite of other legislation will also likely be required, said Mr. Simamba.
“This immunity has far-reaching consequences. In a nutshell, it means that every conceivable suit you can ever bring against a private individual and even core government cannot be brought against such a public authority.” He said it also impacts the rights of employees of authorities and departments, covered by versions of section 12, to claim compensation for unfair dismissal.
“It is possible that there are legitimate complaints that have gone uncompensated because of this kind of immunity provision. I also suspect that there are other authorities that have settled such matters despite the immunity provision,” he said.
The National Roads Authority Law, the Airports Authority Law, the Development and Planning Law, the Monetary Authority Law and the Maritime Authority Law all contain an almost identical version of 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.”
Justice Williams’s ruling followed evidence in the case of Donette Ebanks, who was attempting to sue the Health Services Authority after her daughter suffered severe birth defects as a result of what she claims was the negligent management of her labor and delivery.
During testimony from HSA Chief Executive Officer Lizzette Yearwood it emerged that the authority has settled some negligence cases out of court, despite section 12, and in other cases has used section 12 to prevent lawsuits.
MLA McKeeva Bush, who was leader of government business when the law was passed in 2003, said he was unaware – until publicity surrounding the recent ruling – that the clause had been used to prevent lawsuits. He said he recalled that compensation settlements were paid in cases of alleged negligence when he was leader of the country.
“The intent was to make it so the board was protected. It was never intended to take away the right of a patient to compensation.”
In a Legislative Assembly private members’ motion publicized by Mr. Bush last week, he called for the law to be changed to reflect “the intent of the law as agreed by legislators in 2004.”
Earlier versions of the HSA Law were worded differently.
In the 2003 version of the legislation, the immunity covered everything except for “dishonesty, fraud or wilful neglect.” In 2004, that wording was replaced with “bad faith” and a separate clause was added specifically indemnifying directors.
A note to the bill says the change was made because board directors felt the previous wording did not fully protect them.
In 2010 the law was updated again to its current wording.