A controversial section of the Health Services Authority Law giving immunity from prosecution to negligent doctors and nurses was approved for repeal Friday, after a unanimous vote in the Legislative Assembly.
The amendments to the law will not apply retroactively, however, meaning there is no right to seek compensation in relation to anyone killed or injured as a result of medical negligence in the last 12 years.
The immunity clause came to light after a judge ruled in February that Norene Thompson, the mother of a child who suffered severe birth defects, could not bring a negligence lawsuit against the Health Services Authority because of section 12 of the HSA Law.
Though publicity around the case and Ms. Thompson’s cause ultimately resulted in Friday’s legal change, as it stands, she remains unable to claim compensation.
McKeeva Bush, who was government leader when the disputed section was passed, insisted again that it was never the intention of the legislation to provide a blanket immunity against medical negligence claims.
He called on government to settle out of court with Ms. Thompson.
“I beg the Cabinet to take the case [and] look at it. I would certainly do what I could to settle it. Take her and help the poor girl and the child, also,” he said.
In his ruling in February, Justice Richard Williams said the wording of section 12 was “clear and unambiguous” and prevented lawsuits against all employees of the hospital, including doctors, except in cases where “bad faith” could be approved. He suggested legislators look again at the provision.
It emerged during the case that the Health Services Authority had used the clause to block multiple compensation claims, but had settled out of court on other occasions.
Premier Alden McLaughlin put forward amendments to the law Friday, saying they would restore a patient’s right to seek compensation.
He said the case had highlighted an error in legislation that his administration had moved swiftly to rectify.
“Why should we shield public agencies or employees of such agencies from accountability for errors or accidents? In the view of this administration, this is wrong … there should be no wrong without redress,” the premier said.
He said the amendments would not apply retroactively. That means anyone denied the right to sue since the original legislation was passed in 2004, including Ms. Thompson, still has no legal recourse against the hospital.
Mr. McLaughlin said government had been approached by lawyers for some such patients advocating that all potential claims that had been debarred by section 12 now be allowed.
“We concluded that this is not a policy decision we could possibly take,” he said. “We have no way of knowing how many claims are out there.
“We have no way of quantifying the results in terms of damages.”
Opposition leader Mr. Bush has repeatedly claimed, as he did again in Friday’s debate, that his administration did not intend to introduce blanket immunity for negligent doctors.
But Mr. McLaughlin cited Hansard transcripts from the 2004 debate, when the disputed provision was introduced as an amendment to the HSA Law. He said the transcript of the debate showed Mr. Bush and his health minister at the time, Gilbert McLean, had known exactly what they were doing and that he, as an opposition member, has opposed this.
Mr. Bush continued to deny this, however, insisting the judge had misinterpreted the law and insisting neither he nor his ministers had believed they were legislating immunity for negligent doctors.
Though the 2004 amendment does include a reference to “all employees” of the Health Services Authority having immunity from prosecution, Mr. Bush said the clause was meant to cover board members and non-medical employees but not “medical practitioners.”
Citing other legislation which requires doctors and nurses to maintain malpractice insurance, he said it was clear that section 12 was not intended for doctors.
“My contention is that the judge’s interpretation was wrong,” he said. “As far as I’m concerned there was no such intention from the minister and there was no such policy by the government that someone should not stand responsible for something they did that happened in the course of treatment.”
Mr. Bush added that the fact that a similar clause was included in at least seven other laws, demonstrated that multiple governments had not recognized that the clause conferred such immunity.
There was no discussion in the debate about changing legislation regarding other government entities with similar immunity clauses.
Mr. McLaughlin, concluding the debate, said he sympathized with Mr. Bush and was not out to vilify him, but insisted the wording of the “unfortunate provision” was clear.
“Whatever it was they thought the effect of the 2004 amendment was or wasn’t, it has been found by the Grand Court, and on plain reading to me, that the effect is to confer immunity on all employees of the Health Services Authority with respect to the discharge of their functions or duties, and that is sufficiently broad to catch doctors nurses and other healthcare workers,” Mr. McLaughlin said.
Attorney General Samuel Bulgin spoke briefly during the debate to lend his support to the change in legislation. He said the ruling did not suggest doctors were automatically liable.
“This will simply allow persons to have their day in court,” he said. “They will still have the burden of having to prove their case. They will still have to prove a breach of duty of care that led to the injury,” he said.
The original 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.” The amendment removes the reference to employees and adds negligence alongside bad faith as an exemption to the immunity.
Mr. Bulgin said he believed this wording would be sufficient to allow patients who believed they had been victims of medical negligence to have their day in court.
Legislators voted 17-0 to approve the amendments. The bill still has to pass a third reading in the house, but that is typically a formality.