EDITORIAL – Section 12: Lawmakers’ work has just begun

Cayman Islands lawmakers hit a home run with their repeal of the blanket immunity provision in the Health Services Authority Law – meaning they’re now batting about 1 for 8.

We congratulate Premier Alden McLaughlin and legislators for moving relatively swiftly to approve amendments to the HSA Law remedying its troublesome Section 12, which protects staff members of the public healthcare system, including doctors, from medical negligence lawsuits.

However, we can’t help but observe that this “error” had been committed by the lawmakers themselves.

We put the word “error” in quotation marks because – even assuming that then-Leader of Government Business McKeeva Bush is correct when he says the wording had unintended consequences – that section of the law has been invoked multiple times over the past dozen years in order to prevent the public hospital and its staff from being sued. In other words, even if Section 12 was mistakenly created, it has since been utilized deliberately. Repeatedly.

We also must point out that the recent action in the Legislative Assembly is not retroactive, meaning that Section 12 remains a bulwark against previous allegations of medical negligence – including in the case of Norene Thompson, the mother of a child who suffered severe birth defects, and whose inability to claim compensation thrust HSA’s immunity provision into the spotlight.

Mr. Bush is urging the government to settle out of court with Ms. Thompson.

While we, too, are sympathetic to her plight, we must remember that the materiality of Ms. Thompson’s claims has neither been proven nor disputed nor even considered – because, of course, Section 12 kept them from going forward in the first place. And that, in the most general sense, was precisely the trouble with Section 12.

It remains a clear-and-present problem in at least seven other laws with similar provisions (according to Mr. Bush’s count).

Now that our elected officials have had a successful swing at Section 12, they should step up to the plate again, stare down the other immunity clauses, and take a crack at knocking them out of the law books as well.