The Health Services Authority could be facing another legal challenge to a controversial immunity clause used to protect doctors from medical negligence claims.
Bilika Simamba, a lawyer who previously worked in government’s legislative drafting department, claims he suffered health issues due to medical negligence at the hospital.
The Health Services Authority has applied to have the case dismissed, partly on the basis of an earlier court decision that Section 12 of the HSA Law protects hospital staff from such lawsuits.
In that case, Justice Richard Williams ruled that Donette Thompson, a child born with cerebral palsy after what her mother claims was the negligent management of her birth, could not legally sue the Health Services Authority because of the immunity conferred by Section 12.
Mr. Simamba believes he has a strong case, given that Section 12 was repealed in the wake of that decision, that the law was never intended to confer such immunity.
However, a Grand Court judge ruled last week that his case must wait until an appeal is heard in the case of Ms. Thompson, the original Section 12 defendant.
Justice Ingrid Mangatal wrote in a ruling published Wednesday that it did not make sense for her to hear the case until the Court of Appeal had given its decision on largely similar issues.
“The Court of Appeal’s determinations will be authoritative and binding on the Grand Court and it plainly would be inappropriate for me to press on to a hearing in advance of the Court of Appeal’s determination,” she wrote.
Mr. Simamba had sought to argue that his case could be considered under the revised law, introduced in the wake of the Thompson decision. Though the alleged negligence took place before the repeal of Section 12, he argued that because no decision had been made on his claims, the amended law could be applied to his case.
Mr. Simamba, in his efforts to have his case heard, is also seeking to make the alternative argument that the original Section 12 does not actually bar anyone from bringing lawsuits against the hospital – it just bars them from being financially compensated.
The 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.”
Mr. Simamba is seeking to argue that even if the clause is deemed to protect the hospital and its staff from paying damages, it does not prevent the court from considering the facts of a case and making a declaration.
He said this would be helpful to victims seeking out-of-court settlements.
To this point the courts have not examined the merits of Mr. Simamba’s claims, which include that he lost a tooth as a result of medical error and that in a separate incident, he suffered ill-health due to side-effects of medication, which he was not warned about.
Justice Mangatal’s decision relates to whether or not the court can consider the case.
She wrote, “In all of the circumstances, I am of the view that the most just way of dealing with this case is to stay the proceedings, pending the determination of any appeals in the Court of Appeal in the Thompson case.”