A judge’s ruling in the case of a woman who tried to sue the Health Services Authority after her daughter was born with severe birth defects brought to light a little known “immunity clause” that protected doctors from legal action.
The judgment triggered an ongoing saga in the early part of 2016 that ended with the repeal of the controversial statute, which, it emerged, had shielded doctors from negligence claims for more than a decade.
Justice Richard Williams ruled in February that Section 12 of the Health Services Authority Law provided blanket immunity from medical malpractice suits for anyone who works for the authority, except in cases where “bad faith” can be proved.
Despite being personally “uncomfortable with such immunity,” he said, the wording of the law was clear.
The ruling meant that Norene Ebanks was unable to proceed with a lawsuit on behalf of her daughter Donette Thompson, who was born with cerebral palsy as a result of what Ms. Ebanks claimed was negligent management of her labor.
At age 10, Donette cannot walk, talk or eat solid food. Her mother told the Cayman Compass she was devastated by the judgment which left her struggling to fund a lifetime of care for her daughter.
An affidavit from HSA Chief Executive Lizzette Yearwood, filed with the court, revealed that the authority had paid out-of-court settlements in at least eight previous cases. But she also testified that the authority had successfully used Section 12 as a defense against at least six other negligence claims.
The idea that patients and their families had no legal recourse to seek compensation if they or their loved ones were killed or injured because of medical mistakes caused public outcry.
James Kennedy, of Samson and McGrath, which brought the lawsuit, told the Compass that Section 12 removed fundamental rights from patients in Cayman.
“If somebody commits an act of negligence, it is a long-standing principle of English law that the victim should be compensated by damages in a sum that will put them back as nearly as possible into the same position as they would have been if the negligence had not occurred,” he said. “Section 12 takes away the ability of people to get that compensation for negligent acts done to them.”
Former Health Minister Gilbert McLean, who brought the original legislation to the house in 2004, joined the debate in mid-February, telling the Compass it was never the intent to shield doctors from liability.
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.
Government, too, appeared to be unaware that Section 12 was being used to prevent lawsuits against hospital staff.
Premier Alden McLaughlin put forward amendments to the law in May, 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.
Further investigation by the Compass revealed that a similar immunity clause exists in several other pieces of legislation. 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.
To date, nothing has been done to amend those laws.