Mac files motion to remove doctors’ immunity

| 11/03/2016 | 46 Comments
Cayman News Service

Cayman Islands Hospital, George Town

(CNS): The opposition leader has filed a private member’s motion to amend the Health Services Authority Law, saying that legislators never intended to protect doctors from negligence claims when the law was passed in 2004. McKeeva Bush said section 12 of the law was meant to cover the authority’s board of directors, not medical staff, but last month that clause prevented a local woman from winning a negligence case against the Cayman Islands Hospital.

Norene Ebanks’ 10-year-old daughter has cerebral palsy and is severely disabled, which she claims is as a result of negligence during her labour at the George Town hospital — a claim the HSA denies.

Her hopes for damages to help with the needs of her daughter, Donette Thompson, who cannot walk or talk, were dashed by a Grand Court judge in February when he ruled that the wording of the law was clear, finding that it protects clinical as well as executive staff at the hospital. The finding essentially means that, as the law now stands, no medical staff at the HSA cannot be sued for negligence unless their negligent acts are also found to be in bad faith.

But Bush said that was not the intent of the law at all. He told CNS that the clause was there, as is normal on many boards, to provide some protection for directors, not doctors. “There was no mention that doctors could not be sued for malpractice; there was no intent to that effect,” he said regarding the passage of the law by then health minister Gilbert McLean in 2004.

In the motion filed Thursday, the opposition leader asked government to change section 12 to reflect the intent of the law, as agreed by the Legislators in 2004, noting, “Such intent was to give only the directors of the HSA board such immunity and  protection as board members.”

During the original court hearing Ebanks’ lawyers said the disputed section was being wrongly interpreted. They pointed to doctors taking out malpractice insurance, the HSA’s previous compensation pay-outs, generally out of court settlements where no liability was admitted, and subsequent changes made to the legislation in connection with Health City Cayman Islands deal to cap malpractice awards.

All of this would be pointless, the attorneys had argued, if the section 12 immunity applied to doctors and other medical staff rather than just the board.

Although Justice Williams upheld the wording of controversial section in the law offering blanket immunity from medical malpractice suits for anyone at the Cayman Islands Hospital, he raised his concerns about the clause. Finding that the words were “clear and unambiguous”, he said he was “uncomfortable with such immunity”.

This means that no one else can hope to gain compensation from the HSA if they feel their health care was at fault and resulted in circumstances such as those faced by Donette and her family. Ebanks believes the hospital was at fault and led to her daughter’s condition, but last week’s court ruling presents a major stumbling block for the family.

Her lawyers are not giving up yet and are applying for a declaration of incompatibility as they believe the section in the HSA law is incompatible with the Cayman Islands Constitution and Bill of Rights. They are now waiting on a new hearing asking the court to make that declaration, paving the way for compensation for the family via a different route. however, the battle facing lawyers on that claim will be the limits of the retroactive application of the Bill of Rights.

Donette Thompson v Health Services Authority et al – Judgment

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Category: Health, health and safety

Comments (46)

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  1. Lily says:

    We need new blood in the L.A; like 20 years ago.

    Until the Caymanian people learn to love each other, support one another and educate their own, we will always have the revolving door of politics.

    We don’t need a million dollar public school for our children, we need a proper curriculum and teachers that genuinely love the job.

    We need parents who give a crap about their kids who don’t look at them as nuisances or accessories……further to that children need to stop having children. Ignorance begets ignorance and the nasty cycle continues generation after generation.

    We need honest leaders for the Country who will put the entire Country first and not their own pockets and egos.

    So, McKeeva fixed his mistake he made years ago; do people remember these small details? No. He’s using it as leverage…..common sense.

    We need our people to understand that we now have coming our way the most undemocratic voting system ever thought of and how did it come to fruition? WE voted it a big fat YES thinking we would have more accountability. What we need is a National Voting System where each voter gets one vote in each district of Grand Cayman and Cayman Brac.

    There is no way the Politicians can tailor those votes; it’s too wide spread.

    Believe it or not we are running out of time people.

  2. Soldier Crab says:

    There is an easy solution:
    Make all health-care provided within the CI absolutely free at the point of delivery.
    If you get something for free you cannot then sue the provider if it doesn’t work the way you expected.

    • Conscience says:

      It seems that our legislators are truly asleep on the wheel. What else can you call it when this immunity issue was debated in the Legislative Assembly, the first time, the second time during the debate on Health city coming into being and the necessity of changing laws for blah blah. Those who proposed these draconian changes Obviously without thinking of consequences, should be woefully ashamed of themselves and yes jailed for such a crime against their constituents. Im referring to every single member of the legislature who openly voted for the change.

      It shows you people, don’t elect fool u once fool you twice people to represent you. You the people must think and evaluate clearly on the reasoning abilities of those who want to represent you. There is no more time for excuses for failing to do their job politicos . There is no time for just feel good words “help is on its way” or the “the Betterway” nonsense. There is no more time for governments that do not have a clear plan to govern and make your lives and that of your children better. Do not be fooled by their lip service. Do what they at least all of them that are in and those that were rejected don’t do too well, “THINK” very carefully about who you select to lead you .

  3. Anonymous says:

    Dear 12/03/16 @ 08:27

    Who? HEALTH PRACTICE COMMISSION !!!!!!!!!!! What is that?

  4. Anonymous says:

    In most places legislators immunity is being removed… Well if it’s good for the goose….but you won’t hear Mac pushing that one. I wonder why?

  5. Anonymous says:

    Are you telling me that if my surgeon botches my operation through negligence he will not be held accountable. Holy cow, who in their right mind would pass such a law and why has it taken 12 years for it to come to the fore. In fact who would agree to have surgery in Cayman?

    • Well says:

      McKeeva passed the law when health city was starting and he ignored all protests against this particular section in the law. His usual foolishness.

  6. Anonymous says:

    We also need to insist that doctors on Island have “tail cover”insurance. That is, insurance that will cover the doctors even after they stop practice in the Islands or leave the Islands. There have been instances where doctors simply pack up and leave the jurisdiction and Govt is left holding the bag. The insurance companies will not pay after a doctor has left the Island unless the insurance policy specifically had tail cover included. The Health Practice Commission should be aware of this and has does nothing about it (and if they are not aware then it is regrettable).

  7. Fyi to CNS says:

    Hey cns check this out. Quite interesting how uk dealing with immigration. Please find a section to report this change I know it doesn’t fit here

    http://metro.co.uk/2016/03/12/from-april-people-will-be-deported-for-earning-less-than-35000-5748436/.

  8. Anonymous says:

    Mac gave the immunity. Mac is taking it away.

  9. Anonymous says:

    Nice to see mac downgrading from comotions to just plain morions. He must be getting old

  10. Anonymous says:

    You have got to hand it to the man, he is as cunning as a fox and this, to people with very bad memories, will be a vote winner. They will forget he was responsible for the clause in the first place.

  11. Anonymous says:

    Great news thanks for taking this on Mr. Bush

  12. Anonymous says:

    I guess they will now apply the Health City limit on malpractice. That was something also pushed by McKeeva.

  13. Allar says:

    I am so sick and tired of hearing ” I am glad someone is doing something about even if it is Mac” well who has done for for this country an a politician than Mac. Get real he has done a lot of good.

  14. Anonymous says:

    It may sound good in theory, but get ready for 3 things to happen: 1. Doctors will leave the Island or chose not to come because of legal exposure here as opposed to jurisdictions that limit damages available under malpractice claims; 2. The cost of ALL medical services will significantly rise and doctor and facility insurance premiums will significantly rise; and 3. As costs rise, more people will be unable to afford health insurance – they will either suffer or get “free” treatment, which will then be another cost further passed on to the general public.

    Make no mistake, this will come out of the public’s pocket, not the Doctors!!

    If you want to have much more expensive health services, while getting less for it, this is a great idea….

    • Anonymous says:

      So what you are saying is that the people injured by negligent doctors should subsidise everyone else’s health care? That would place a huge burden on a random section of the population rather than spread the costs efficiently through insurance coverage by doctors being passed on as a cost. Add in the moral hazard of immunity and your position is irrational and immoral.

    • Anonymous says:

      Are you suggesting that its ok for Doctors to cause the death of a patient and or partial or permanent disability of someone through his/her negligence and should not be liable for that action. So the question is what happens to the families of those persons in terms of their financial challenges going forward. If they can not be sued then I think everyone should boycott the HSA by refusing treatment there and go to other medical facilities on the island.

    • Anonymous says:

      Err, the doctors are already paying for malpractice insurance, so the winners here are the insurance companies who are taking a risk that (according to the judge’s ruling) does not exist. I doubt that the Doctors (or the HSA) are quite so sure that this will withstand higher legal opinion. Your argument is fallacious.

    • Anonymous says:

      Yeah, best let the victims bear the costs…

    • Anonymous says:

      Most of the world is focused on Tort Reform because lawsuits have ruined health care. As you say, the costs of doing business get passed to the consumer. People might not like it, but is is reality.

    • Rootin tootin says:

      You forgot point 4 Bobo, people will feel comfort and safety knowing that a higher calibre of medical standards will finally be employed here…

    • Diogenes says:

      Except, Chicken Little, the indemnity only applies to the HSA so removal will make no difference to the private sector. Who incidentally do have a limit to negligence liability thanks to Shetty.

  15. Anonymous says:

    Its the only thing that makes sense. Imagine just what sort of Doctor you will get at the hospital if he is immune from being held accountable?

    • Anonymous says:

      What the doctors need as they have it in the states is “insurance to cover malpractice”, it can be a win win situation. The insurance company will make money and the victim can get justice

      • Anonymous says:

        Or you can have a national health service where access to health care does not depend on your ability to pay. The universal health care in the UK is hugely cost effective when compared to the private system in US?

    • Anonymous says:

      You already get those that aren’t licensed to practice

  16. Noah says:

    Mac – please bring a motion to amend the misfeasance in public office loophole too – and make it retroactive while you are at it.

    • Anonymous says:

      Noah, what kind of a stupid statement is that? I can’t believe that you hate Mac so much that you are blinded to the truth about what is good for us as a nation.

  17. SKEPTICAL says:

    For once he is absolutely correct.

    • Anonymous says:

      For once, he is trying to fix the f.u. he created in the first instance rather than pretending it never happened! So let’s not give him credit too quick. If it wouldn’t have been for him to get this idiotic law passed in the first instance, there would be no need to remove it!!!!

  18. - dat says:

    Glad someone’s doing something about it, even if it is Mac

  19. Anonymous says:

    Don’t tell me that I am the ONLY one that remembers this from back in 2004!! Everyone knew this at the time and were up in arms about it.
    Why is no one saying this? Why wasn’t anything done at the time?
    I must be dreaming…

  20. Anonymous says:

    how convenient. That clause was argued when they implemented the law but Bush thought it was the right thing then.

  21. MM says:

    This is not the first negligence claim barred by this Immunity Clause and there are doctors still practicing at the HSA who would very well be fired if the HSA would stop covering things up for them and had particular processes in place for dealing with patient complaints against some of these butchers.

  22. Anonymous says:

    Mac, if that was what was intended you should also bring a motion to fire the legal team advising you on the wording for incompetence.

    • MM says:

      “Neither the Authority, nor any director or employee of the Authority, nor any Committee member, 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.”

      Helleeeerrr???

      Now this sadly points out that this man should have not been a Legislator for these past donkey years! “OR EMPLOYEE” – you cannot even sue a janitor under this clause and he is trying to plead innocence and ignorance to what it covers?

      “Such intent was to give only the directors of the HSA board such immunity and protection as board members.” says Bush….

      So why did we add the ‘nor’ and ‘or’?

      How many fool-fool 2017 voters going fall for this wolf in sheep’s clothing approach to correcting pass carelessness?

      And to deem that it was “never the intention of this law”… so how did the word “employee” get stuck in there and don’t the Legislators review the final drafting/wording before approving and sending down to print these laws?

      For God’s sake, if I must read/hear/witness one more lie/cover-up/down-play/hidden report/scandal/deceptive speech… etc, etc, etc coming down from either the PPM or UDP I will stand on the LA steps one Tuesday morning with a cow cod!!!

      This is a disgrace the way they can recline in their leather seats on a weekly basis pouring out reports and press releases drizzled in lies and deceit and the spineless Caymanian public swallow it up like orders from the divine without questioning, researching, double-checking, highlighting and calling these fraudsters out on their BS! With this type of practice from our public is there any wonder we have continuously elected the same persons responsible for so much failure in this country? We can’t forgive close family members but have been giving politicians second chances since the polls first opened!

  23. Anonymous says:

    You Know this is why this gentleman wins his election all the time. Good job Hon Bush.

    • Anonymous says:

      Only fitting that he ought to fix this, since Gilbert McLean was McKeeva’s Health Minister that brought this Law into being. Nothing more than political expediency before people remember that the Law was passed when McKeeva was Leader of Government Business. Either way, fix the damn law and stop creating a shield for substandard care.

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