Government settles out of court in immunity clause case

Donette Thompson case settled, new section 12 case pending

Norene Ebanks cares for her 10-year-old daughter Donette Thompson, who has cerebral palsy. – PHOTO: MATT LAMERS

Government has settled out of court with the family at the center of the legal battle over the controversial “section 12” clause that protected negligent doctors from lawsuits.

Donette Thompson, 13, who was born with cerebral palsy as a result of what her mother believes was the negligent management of her labor, was barred from using the courts to claim compensation from the Health Services Authority.

A judge ruled in 2016 that section 12 of the HSA law amounted to an “immunity clause” that protected doctors and other medical professionals from legal action.

Government repealed the clause later the same year. But the change did not apply retroactively, meaning the child’s mother, Norene Ebanks, was unable to get compensation.

Donette, who is unable to walk, talk or eat solid food, requires round-the-clock care, and her mother said at the time she was devastated by the judgment, which left her facing years of financial struggle.

Lawyers acting for the family had appealed Justice Richard Williams’s ruling and the case was scheduled to be heard in September.

It was removed from the list at the last minute, however. At the time, lawyers said they were unable to comment.

But a recent ruling in a separate case confirms that the matter was settled out of court. The financial level of the settlement is not revealed.

Bilika Simamba’s efforts to sue the Health Services Authority over health issues he claims were a result of medical negligence had been delayed pending the result of the appeal in the Thompson case.

In an administrative ruling last week on Mr. Simamba’s case, Justice Ingrid Mangatal noted, “The Thompson case was settled and the appeals were withdrawn without any hearing taking place.”

She wrote that the original decision that section 12 protected the Health Services Authority and its employees from being sued for damages therefore stands as established law.

The Health Services Authority is seeking to have Mr. Simamba’s claims, which relate to the period before the law was changed, thrown out, partly on the basis that the section 12 immunity clause was operative at the time.

Mr. Simamba believes he has a strong case, given that section 12 was subsequently repealed, that the law was never intended to confer such immunity. He is hoping the court will take his case and reconsider the matter of how the wording of the original law should be interpreted.

If he is successful, it could open up the option for other patients who believe they were victims of medical negligence before 2016 to sue for compensation.

It is not clear if and when Mr. Simamba’s case will proceed. The main point of Justice Mangatal’s ruling was to recuse herself from the case because of comments the plaintiff had made questioning her integrity.

She writes, in her ruling, that Mr. Simamba has written to Chief Justice Anthony Smellie to accuse her of bias and of being disrespectful to Mr. Simamba.

“While I am of the view that Mr. Simamba’s complaints are unfortunate and completely unfounded, it is my view that the only proper course open to me at this time is to recuse myself from all further hearings on this matter,” Justice Mangatal wrote. The case will be assigned to another judge, who will be tasked with deciding whether it should be thrown out or proceed to substantive arguments.

The courts have not yet 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 that he was not warned about.

Support local journalism. Subscribe to the all-access pass for the Cayman Compass.

Subscribe now