By James Whittaker
Government will consider a bill to amend the Health Services Authority Law to repeal a controversial clause giving blanket immunity from lawsuits to its staff. Proposed amendments to the law were made public Monday and will be debated in the Legislative Assembly later this month.
The clause has been used on several occasions by the Health Services Authority to prevent lawsuits in medical malpractice cases, according to court documents.
The legislation change comes after a landmark case brought the issue into the spotlight. Norene Ebanks, whose child suffered serious birth defects from what she alleges was the negligent management of her labor and delivery, had attempted to sue for compensation.
However, Justice Richard Williams ruled in February that the Health Services Authority was within its rights to use the clause to prevent lawsuits against its staff.
The judge said he was uncomfortable with the immunity but the wording was “clear and unambiguous.”
Following the ruling, several politicians, including Gilbert McLean, who was health minister when the original legislation was passed, claimed it was never their intention for the law to be used to prevent compensation claims against negligent doctors. He said it was intended to protect board directors.
The clause currently 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.”
The proposed amendments remove the reference to employees, lifting the immunity for doctors and ambulance drivers, for example. It also adds negligence alongside bad faith as an exemption to the immunity.
The reworded clause states: “Neither the Authority, nor any director 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 negligent or in bad faith.”
Last month, Premier Alden McLaughlin said his government would be bringing the changes to the House.
“We can’t have a situation where someone suffers injury or harm as a result of negligence and there is no redress. It’s wrong,” said Premier McLaughlin, who is also the health minister.
“The way to avoid liability is by striving to avoid negligent treatment, not through legislation. It is a basic principle of equity and fairness that there can be no wrong without redress.” (Cayman Compass)
