Law changed to allow medical suits

Cayman Islands Hospital, George Town

(CNS): Government steered through a critical amendment to the Health Services Authority Law Friday in order to address a clause that has been in the legislation for twelve years and resulted in a shocking court judgment in February preventing a family from claiming damages due to negligence in connection with the birth of their now severely disabled child. This appears to have been the unintended consequences of a 2004 amendment conferred immunity from negligence suits on all HSA staff, including doctors and nurses. The premier, who is also the health minister, said it was not his government’s policy to block legitimate claims.

Alden McLaughlin said negligent doctors should not be shielded from the law, as he presented the slight amendment that will pave the way for future, though not retrospective, claims. He told the Legislative Assembly that at the time he, as an opposition MLA, and Kurt Tibbetts, as leader of the opposition, had questioned the clause but his concerns were dismissed by the health minister during the first UDP administration, Gilbert McLean.

However, the final judgement in the long-running Donette Thompson case, released in February, solidified concerns that the law provided a complete block on people suing any HSA employee, and the premier said government had acted to rectify the situation.

McLaughlin said people should have the right to sue if they did not receive the proper level of care, and as all doctors are required to have malpractice insurance, there should be a route to redress. He said government had taken legal advice, via the attorney general, from Blackstone Chambers in London about the new wording of the clause to remove the immunity from legal action for medical staff.

But he explained that it could not be retrospective because it was impossible to know the extent of potential claims and what damages could be awarded, and he pointed out that the doctors’ insurance cover would have been based on the wording of the 2004 legislation. The HSA, he said, could be seriously exposed if the change to the law was applied retrospectively over the last dozen years.

McLaughlin said it was “more than unfortunate” that the provision existed in the current legislation, which he believed was placed in the law in an effort to block suits against non-medical staff, or board directors, as he referred to the Michael Elliott case, the former HSA chief who sued government over his dismissal, which had cost the government millions of dollars.

The premier said that over the last few weeks Opposition Leader McKeeva Bush and the former health minister, Gilbert McLean, had sought to distance themselves from the clause but it was clear in the Hansard that the UDP government was responsible for it.

Bush nevertheless argued that neither the health minister nor the administration at the time had intended the clause to stretch to the negligence of doctors, saying he believed the law had been misinterpreted in the judge’s ruling, and suggested the requirement for malpractice insurance for health practitioners demonstrated they were not immune.

Bush, who had filed a private member’s motion in March asking government to amend the law, said he still did not believe the amendment made in 2004 was meant to protect medical staff from negligence claims, and it had not been his government’s policy to prevent people from suing if they had been subject to negligence.

Furthermore, there was nothing in the debate in 2004 that indicated that was the intention of the law, he said, claiming that if McLean had intended to protect doctors, he would have said so.

McLaughlin said he sympathized with the opposition leader’s position and it was not his intention to vilify him. However, the legal advice given at time was not sound, he said, and whatever they thought was the effect of the clause, it had been found by a court to confer immunity for all HSA employees, including doctors, nurses and other healthcare workers.

He said government had acted quickly to draft an amendment to remove that immunity and provide a way for people to seek redress in genuine cases. He said it was fundamentally wrong for people to suffer damage or injury as a result of negligence and be barred from making an appropriate claim

The amendment was passed unanimously.

Donette Thompson v Health Services Authority et al – Judgment