Premier: Hospital immunity to be removed

The case of Norene Ebanks, who tried to sue the hospital after her daughter suffered birth defects as a result of what she claims was medical negligence, sparked the debate about Section 12. - PHOTO: MATT LAMERS

Patients who are victims of hospital negligence will have their right to seek compensation through the courts returned once legislative changes are approved, Premier Alden McLaughlin said Thursday.

Mr. McLaughlin said Cabinet has approved drafting instructions to change the wording of controversial section 12 of the Health Services Authority Law, which gives blanket immunity from lawsuits to all authority staff, including negligent doctors, except where bad faith can be proved.

Related: Legislature debated hospital’s legal ‘immunity’ in 2004

The amendments will be brought to Legislative Assembly at its next sitting.

“We can’t have a situation where someone suffers injury or harm as a result of negligence and there is no redress. It’s wrong,” said Premier McLaughlin, who is also the health minister.

He acknowledged the decision exposed the hospital to financial risk, but said it was the right thing to do.

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“We are certainly concerned about liability because it is the government that has to pay.

“The way to avoid liability is by striving to avoid negligent treatment not through legislation. It is a basic principle of equity and fairness that there can be no wrong without redress.”

Politicians, including former Premier McKeeva Bush and former Health Minister Gilbert McLean, have claimed the clause, introduced under the United Democratic Party government in 2004, was never meant to provide immunity for negligent doctors and was intended to indemnify directors from legal action.

Mr. McLaughlin said Legislative Assembly Hansard records from 2004 showed this was not the case.

“They clearly intended it. It was debated at length,” he said.

The premier’s intervention follows weeks of debate about the merits of Section 12 after Justice Richard Williams ruled last month that the Health Services Authority did have the right to use the clause to protect its staff, including doctors, from lawsuits. 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. had attempted to sue for damages. The judge said he was uncomfortable with the immunity but the wording was “clear and unambiguous.”

The disputed clause 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.”

The wording of the amendments have yet to be finalized but Mr. McLaughlin indicated the reference to employees would be removed and negligence would be added alongside bad faith as an exemption to the immunity.

He said government would also be looking at similar clauses in other laws, highlighted in the Cayman Compass earlier this week.

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  1. Finally some courage to act Mr. Premier!!!!!!!!!!! Take a bow SIR!!! No doubt election is right around the corner and this has accelerated the pace of your response to the glaring and obvious gap in the law and benefits afforded to potential claimants. Other stuff to fix before LA disbanded- clock is ticking and you’re down to 11 months. Will say a prayer for our country that next year’s elections shall produce sound and responsible leaders to guide our nation safely across the troubled waters over the next 4 years. Could see a global depression worse than the 1930s. What are we doing to prepare ourselves for such an event? If Cayman Airways doesn’t come in for 1 day to bring us food- GOD help our souls and you think planes going to fly in a major collapse and depression? Betta learn to grow your lickle gardens and support local farmers for starters. Take a feather from the cap of the Europeans.

  2. On what basis did the HSA allow some negligence claims but claim immunity on others?. What is the result of the HSA investigation into the death of the British woman who was admitted after a road accident in January last year?.

  3. Well said Premier McLaughlin.

    We should not open the door to wacky lawsuits such as prevail in the USA.
    But it is clearly wrong that such a blanket exclusion from liability is in the law.

    I do not believe there is a single doctor or nurse in these islands that would deliberately do harm to any patient.

    On the other hand there is a concept known as “moral hazard.”

    For example, does someone take less care to prevent a fire at home if they have homeowners insurance?

    Thus: If a doctor KNOWS they CANNOT be sued, does that make them less careful?