Pain & suffering cash limited

| 21/03/2011

(CNS): The Cayman Islands courts have now been restricted by the government from awarding anything more than half a million dollars to anyone, no matter the severity of their suffering, in medical negligence damages. The Medical Negligence (non-economic-damages) Amendment bill 2011 was passed by the Legislative Assembly on Friday morning, despite concerns raised by the opposition and the independent member. Mark Scotland, the Minister for Health, denied that the only motivation for the law was the agreement with Dr Devi Shetty but insisted it was in order to lower the malpractice insurance premiums of local doctors and in particular obstetricians.

The law will not only cap the awards that a court may give to a victim of medical negligence in Cayman but will also prevent any awards given in courts outside the jurisdiction in connection with doctors that have practiced here or incidents that have occurred here that exceed the $500K limit.

Scotland said the move, which the Law Reform Commission had recommended against, would reduce the insurance premiums at Dr Shetty’s facility once it was built by as much as 85%. The minister said he couldn’t say how much premiums for other local doctors would be reduced but believed it would have an impact. More importantly, he added, if government did not act to reduce the spiralling local premiums it wouldn’t be long before there were no obstetricians practicing on island.

“When we see practitioners stop delivering babies, then it’s serious,” Scotland told his legislative colleagues. He also stated that although the courts in Cayman have not yet made any awards exceeding the cap, the law was meant to be a pre-emptive strike to prevent awards from increasing as they have in the United States.

MLA Ezzard Miller, who has made his objections widely known, raised his concerns about the impact on the court system in the international arena and wanted to know what guarantees the minister had managed to get from the insurance firms covering local doctors about reductions. He doubted that the law would have an effect as he pointed to the fact that, despite the insurance firms being aware that the law was due, they have increased premiums this month.

The independent member said he was “not too concerned” about the reduction in premiums for Dr Shetty, and pointed out that the surgeon said his health facility could make up to $4 billlion a year. However, Miller said he was worried about local doctors, and his concern was that this law would offer no benefits to them.

Miller spoke again about the need for an audit and for the standardising of practice with doctors only being licensed to practice in their specialist field. He also criticized some obstetricians for offering “birthday selections” and scheduling too many unnecessary c-sections, which he felt was contributing to increasing their risk.

The leader of the opposition described the law as ground breaking for the Cayman Islands, noting that it was the first time that the legislature was seeking to limit the actions of the local civil courts. He pointed out that the Law Reform Commission had warned against tying the hands of the courts, which to date had not given excessive rewards.

Alden McLaughlin said the courts, not politicians, were the most appropriate arbitrators of justice in the area of negligence. He said the judiciary was best placed to decide on the merits of each case where the line should be drawn and he raised concerns that the cap would impact those that had suffered the most.

He suggested increasing the cap to $1million, as he did not think that would harm Shetty’s situation but would give the courts more room for manoeuvre for those most serious of cases where a child or young person could be facing a lifetime of serious disability because of medical negligence.

McLaughlin, who said he supported the need to assist Dr Shetty, accused the government of “propaganda” by suggesting the law was to benefit anyone else. “I don’t believe the minister should shy away from the reality of the bill, which is to accommodate Dr Shetty,” he said, adding that it was to be expected if the country was to support medical tourism. However, he warned against trying to sell the law as a benefit to local doctors. “Government will pay the price when expectations are not met,” McLaughlin warned.

Scotland denied that Shetty was the only reason for the law, insisting it would have an impact on local doctors, and accused the opposition of neglecting the need for the law previously. “The intent of the bill is to contain rising costs of malpractice insurance,” Scotland said, adding that representations from the profession had been made to him about the problem since he took office. He denied interfering with the courts, stating that it was the job of legislators to pass the laws and for the courts to enforce them, before the bill was passed through its administrative phases and voted into law.

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  1. Anonymous says:

    People should note the distinction made here. The cap is on non-economic damages. While it is troubling that this cap has been implmented and, it is blatantly clear that this is politically motivated, despite the government’s insistence that it is not (we can all see through that garbage), there is some solace in the fact that it does not cover general damages – (loss of future earnings etc.)

    Having said this, the people of this country who have the right to vote – remember that your voices should be heard! speak up on these crucial issues – you may be the voice which prevents travesties of this nature.

  2. Concern Citizen says:

    Ahhh boiii…………UDP I can only imagine your dedicated voters are slapping theirselves right about now! What have they done by stopping at the red and going with the green…..

    One thing is for certain by the time the next election comes around the only good thing is there won’t be anything left on Grand Cayman to sell….

    Why don’t these mad ppl consider building something that actually benefits CAYMANIANS!!! records do indicate that most robberies are being commented by young unskilled menthat are CAYMANIAN………like Michael Jackson said in one of his songs, ”All I wanna say is that they don’t really care about us!”

  3. Anonymous says:

    I fail to see any other reason that this malprcatice law has been passed except that it is to save the tails of Dr.s who screw up and further punish us for having had to to go to them in the first place. We are not as fool as this governmnet thinks we are but they are proving themselves folls more and more each day. This is just an easy out for Drs. to make quick/easy cash and not have to worry about the consequences of taking short-cuts, or experimenting on us, or having to pay for any botch ups etc. etc. etc. XXXX but what about us??? I also have an issue with the constant climb in insurance premiums that I incur each year. Please people, check you insurance statements because it is a known fact that there are practitioners here charging the insurance companies for services not rendered and this is where at least part of the Price-Gouging is coming from with the insurance companies, not from medical mapractice as we know it! This IS also medical malpractice and the HSA and the Insurance companies and our government ignore it instead of regulating and auditing every practitioner on this rock. The insurance companies should also have their own audits to ensure we are not pounded each and every year with premium hikes due to this practice. The thing is it is way cheaper and easier to hike the premiums and make us pay regardless. They know we need them and will have to pay regardless.

  4. The Beaver says:

    UDP logic…  So Mark Scotland denied that the only motivation for the law was the agreement with Dr Devi Shetty.  He then states that it would reduce premiums at Dr. Shetty’s facility by as much as 85%, but could not say how much premiums would be reduced for the other local doctors.  If this law wasn’t passed for Dr. Shetty alone, how is it that he can give you an exact amount when it concerns Dr. Shetty but is clueless when it concerns the other doctors on island???  Methinks he thinks people are stupid!  The Beaver!


  5. tim ridley says:

    What is very troubling is the lack of informed discussion and analysis of the issues and alternatives by the Government before enacting this legislation. Simply to dismiss the report of the LRC without reasons and without considering the wealth of published research in the USA and elsewhere is very unwise and shows a poor level of transparency.

    The unintended consequence of the legislation may well be to punish the less well off and the very seriously injured. And with no social safety net to rescue them either. On the other hand, there may be a saving grace; the legislation is so badly drafted that a decent litigation lawyer can probably circumvent the intended cap!

  6. Anonymous says:

    So what you are telling me is that after having to endure four long years of UDP governance, we are all only entitled to a half million each? Hardly seems fair for the pain and suffering we have all had to go through.

  7. Anonymous says:

    All this to appease some foreign investor with a pie-in-the-sky scheme…

    UDP is prostituting Cayman in desperate hopes that one, anything project will move

    And where is PPM_under new management_still silent and useless

  8. Anonymous says:

     As usual in Cayman … big business wins and the people lose. 

    What happens if a doctor botches a surgery and a Caymanian breadwinner can never work for his family again? They are supposed to live off of 500k for the rest of their lives?

    • sooth sayer says:

      Ladies and gentlemen, welcome to the world you created. The biggest problem with Cayman is that you’re all convinced that there is no ‘higher power’ than the local Government. You’re wrong. Whether you like it or not, your little island is what it is today because it is a UK overseas territory. You have recourse to go higher than the preemeeer here, and if you spent as long writing to the UK officials responsible, as you do wasting time on here, they would HAVE to take notice. Surely the penny must have dropped by now? You want to improve Cayman? Take it out of Caymanian’s hands. The only improvement with things the way they are now is to the ‘leaders’ bank balances.

      Direct rule doesn’t look so bad now, does it?

    • Anonymous says:

      Not quite- the cap only applies to ‘general’ damages relating to pain and suffering, not to claims for items like loss of earnings and cost of care.

      I struggle to see the point of the cap to be honest, because general damages almost never exceed $500,000 in any event- for example, the guidelines for quadriplegia top out at around GBP265,000, as do awards for serious brain damage, and cases involving total blindness and deafness. Even taking into account inflation it will be a few years before this is even remotely relevant, and in any event, in the context of a major claim where cost of care is likely to run well into the millions, general damages are small fry. As a result, the impact on insurance premiums is likely to be somewhere between zero and nil.

  9. Fed Up says:

    This government sinks deeper and deeper in to the Cayman Trench XXXX. [UDP] have sold us out for too long and at every level and now they use legislation to finish the job. Medical bills will bankrupt us if a doctor makes a mistake with no legal recourse because we elect sellouts. Can we see who voted for this XXXX legislation please? They do not have the sick people of this country’s best interests at heart. They are truly one sided and it is not our side they are on. The shame of Mark Scotland saying such nonsense knowing full well we will be butchered on medical tables. XXXX we shall remember this bloody move against the people by the UDP. This should be done by referendum.

    • Jan says:

      Where did PPM take us??? Can you answer that? UDP is still trying to pull us out of the financial hole that they put us in….Yes, they have had to do a lot with foreignors in order to get this island back on track, give them some other alternatives then… If you are not a part of the solution, please do not be a part of the problem…. Come up with solutions please and just stop B*%^hing about how they are messing?

  10. Anonymous says:

    All these changes and Shetty hasn’t committed a dime yet…

  11. noname says:

    Yeah to appease Shetty and victimize and empoverish ONLY the Caymanian people Because the US citizens will not stand for this! They got too many laws and the constitution working for them to put up with this B.S!

  12. McCarron McLaughlin says:

    Nice one UDP – this will surely limited the Americans that Doctor Shetty is counting on coming for treatment. It makes sense for them to take their chances in the States now after this move. Oh by the wasn’t this 2000 bed hospital project suppose to start in the 1st Qtr 2011 according to Gene Thompson, still nothing. I have said and will continue to say they put the horse before the carriage for this hospital, they never see the big picture until it’s right in their faces and then excuses and the blame game begins.

  13. Frank says:

    Mark Scotland. You are a fool if you think that we’re going to believe that this law was not created to accomodate Shetty. Is it just a huge coincendence that this was never mentioned until this hospital was a prospect? As mentioned before a price cap on insurance payouts is a huge mistake. Doctors now though that that they are protected against neglegence in the wrong way! Malpractice insurance is there for a reason! As well as helping patients who have been the unfortunate individuals to have had anything happen to them it is also a reminder for Dr’s to be sure when performing any precedures that they are done correctly. This law in essence protecting any Dr’s from being liable for their mistakes. This then, my friend is a stupid and dangerous law that seriously needs reviewing!!

  14. Anonymous says:

    Do you really think people from the U.S. will come here for surgeries when you have a cap of $500,000. This is nothing when someone’s life is taken or health ruined because of doctors error or incompetence. I don’t think anyone from the US will be coming here for surgery. I know I will try my best not to have any surgeries here. This is just plain scary.

  15. chuckie surfmeister says:

    I am wondering if this is legal under the European convention on Human Rights….could someone who is an Attorney and who deals with theses matters comment?

    • Boston Tea Party says:

      It probably doesn’t infringe your “human rights” however, in the UK and in the EU, there are other provisions which would make it unlawful to limit liability for negligence causing personal injuries. In England, there are at least 2 pieces of legislation, the Unfair Contract Terms Act and the Unfair Terms in Consumer Contracts Regulations, which do not have any equivalent here, which would render a contract with a doctor or hospital which purported to limit either liability or damages unenforceable.
      It is possible that, if England enacted a similar provision to this statutory limit now introduced here, a complaint could be made to the European Court for breach of the EU directive under which the UTCC Regs were made.

  16. Real World says:

    All these radical changes being carried out by government (including changing the Tort law and setting up a second tier of less qualified medical specialists) based on just an MOI; to appease an Indian cardiologist who simply is not coming here!  When it falls apart, this "initiative"  is likely to be the Premier’s Waterloo.

  17. noname says:

    It appears that our Government has lost their minds and we the people of Cayman are going to suffer……Its safe to say NOW that I won’t be feeling guilty about making the wrong decision in electing idiots to sell our Island out……And for the record I have never voted so the next election will be my first and I can assure you that these current XXXX are not getting my XXXX Talk about time for a change……What’s next are they going to offer a spot in Government for the right price? XXXXX…. I’m just saying where can I buy the book of ”HOW TO RUN A GOVERNMENT FOR DUMBIES”….

  18. Anonymous says:

    Did you not realize that the Shetty MOU also requires the Government cannot passing any future law or rules that could impact this project WITHOUT FIRST GETTING SHETTY’s permission??

    When did we elect Shetty such that he is now Lord over our entire government??

  19. Anonymous says:


    Is the UDP completely insane!!

    This is a ridiculous, idiotic and irregular move which will only present Cayman as 3rd world — where else in the world would refuse to enforce a valid, legal judgment from a legitimate court elsewhere.

    This provision completely undermines the rule of law in Cayman and the principles of democractic governance.

    Oh my gosh, we really are in a dictatorship and a backward 3rd world where the rule of law does NOT apply — we are now the same as any war-ridden, corrupt regime in subsaharan Africa.

    Who wants to do business in a country where you cannot get or obtain justice through the courts.

    What are we doing here?! I cannot believe this!!!!

  20. Liverpool says:

    Judge Dredd,

    Are you saying that the pain and suffering is only a fraction of the entire payout But there will higher pay outs in the millions of dollars for untimely death though reckless doctors i.e. malpractice?

    In other wordsthe pay out will be structured as:

    Pain and suffering $500,000

    Mal Practice Damages to health by negligence$ much more?

    come again Judge Dredd.

    We need a better explanation

    • Boston Tea Party says:

      No, that is not what he is saying
      Awards for medical negligence/malpractice are divided into lots of “heads” or categories of damage, and you can have as many of them as you can prove you are entitled to.

      “non-economic” damages would encompass “general damages” for pain, suffering, loss of amenity, loss of marriage prospects, loss of particularly convivial employment etc. In Cayman, those are generally the sorts of areas of damage which are awarded for “non-economic” losses, since “punitive” damages (otherwise known as exemplary or aggravated damages) are not awarded in the same way as they would be in the US.

      On top of, and separate from, “non-economic” or general damages, you also get “special damages” which are actual money values based on provable past and future losses (such as costs of future care and future loss of earnings). If you can prove them, these heads of damage are usually the most significant part of any large awards of damages.

      As I understand it, this Law only limits the first kind of damages, not the second. This is important because, in Shetty’s business model. lots of US citizens would need to come and use his facililties. Even though you would expect his contracts to give exclusive choice of law and jurisdiction to the Cayman Islands and its courts, it is not beyond a doubt that a US citizen could get a jury award of many millions of punitive damages in the USand try to enforce it here, even though it would never had been awarded here. Even in the US, such awards are usually overturned on appeal. However, that is the damage which the Law is seeking to limit.

      However, I agree, it will make no damn difference at all to the premiums of our local practitioners (unless their practices are exclusively for US citizens in states where their courts routinely ignore choice of law and jurisdiction clauses and might award huge punitive damages.

  21. Libertarian says:

    ***** “Miller said he was worried about local doctors. His concern he said was this law would offer no benefits to them.” Instead of capping awards for medical negligence by 500 thousand, and hence prevent those who have suffered most from recieving their just compensation, I don’t understand why couldn’t the government at least allow patients and doctors to have “more choices” in lowering insurance premiums? The current government is talking about insurance for malpractice being too high and hence the hike costs of medical services, and some obstetricians unable to practice on island in fear of a patient suing them for millions. I am not against patients, but I think in order to make the system work, government should freely allow between patient and doctor, the free option of signing a “medical malpractice waiver.” In the end, the patients would benefit from such waivers because the medical costs would most naturally decrease. Government would be out of the picture! The waiver (if the patient signs) of course would give up the patient’s rights to sue their doctor for any medical malpractice that the doctor committed. However, here is freedom to choose what you want: It would help the local practitioners, because they wouldn’t have to pay for the medical malpractice insurance or worry about ensuring their patients didn’t sue them. And it would help the patient because costs would be dramatically lowered, making medical costs in the Cayman Islands more affordable for everyone! Yes, I am afraid that capping awards to 500 thousand is not necessary and would not be “fair” for the most serious medical negligence cases. With the optional waiver form, the patient well informed of his/her rights, would have the freedom to refrain from signing it, and if they should ever become a victim, will be able to sue the doctor for whatever Justice demands! But seeing this government, trying to be experts in the medical field, it is too late now – they have passed a law! There was not real debate in the House on other options! This law sorry to say was for one man alone – Dr. Shetty! It would be interesting to see how a victim of medical negligence for Shetty receives their just compensation that can only exceed to 500k. My 2cent ***** Libertarian

  22. Liverpool says:

    Now a 3rd world. the Cayman Islands is about to attract shoddy doctors with a long malpractice RAP Sheet this British territory will be their PLAYGROUND!



    That’s how dumb the UDP government is,

    Yes the people and their lives and all 7 or 8 organs in their body IS UP FOR SALE!

    Pastor Al, what do you have to say about this, it is more important than the constitution its the lives of the Caymanian people  they are being taken away from them.

    • Ask theexperts says:

       I’d like the opinion of the OBGYNs that we are in danger of losing due to the astronomical insurance now imposed on them.

      I am very grateful that we have been blessed with loyal doctors that were delivering babies during hurricanes, re-built their offices, and stayed loyal to our community.  These doctors have been here for a looooong time and their opinions are what matter to me.

      Ask any good physician and they will tell you that Cayman attracts excellent physicians and we have some great doctors here.  What is their opinion of the law CNS, does it go far enough?  What SHOULD our government be doing to insure we get good health care at a fair cost???

      • concerned CAYMANIAN TO THE BONE says:

        There we go again. This writer must be smoking something strong to say the Cayman attracts some of the best doctors. Shame on you. If God can help me to get off this rock to have medical attention I am headed to the North! Too many accidents happening in these hospitals these days. There is currently a number of mal-practice suits unsettled amounting to 10’s of millions! So to put a cap of US$500k on a life is grossly inscane.

    • McCarron McLaughlin says:

      Just clarifying two items above, there are 22 internal organs in a human’s body usually, the skin would make it 23. Also the Cayman Islands consist of approx 102 square miles.

  23. Judge Dredd says:

    This law is nonsense.  Pain and suffering awards are a fraction of the large claims for serious harm caused by negligence – most of the claim is to pay for long term care.  The effect on indemnity insurance will be marginal.

    Higher claims would only be the result of visitors to Shetty’s hospital trying to sue in the States where the statute will not limit damages anyway.  This law was only for one reason – to appease Shetty.

    • Ask the experts says:

       MLA Miller, you are such an alarmist and an opportunist to get the people riled up over every issue.  No woman opts for C-Sections for their first child and both hospitals will NOT schedule them for a first child not at risk. The OBGYNs weigh the safety.  If not for an emergency c-section, my child would be dead.  Watch how quick you are to judge (especially not being a health expert or a doctor or even a woman who has had to make a choice or give birth)  Women who have had to have c-sections, really have no other safe choice for their second child and are advised to limit the numbers and look at VBACs.

      Think before you speak Mr. Miller and look at both sides of the argument.  Ask the OBGYNs before you make such comments or run the risk of a 3rd world doctor delivering your grandchildren.


      • concerned CAYMANIAN TO THE BONE says:

        To my good friend “Ask the experts”08:53,

        There are many doctors in Cayman that will tell you what you want to hear and espeically when you have INSURANCE! If you OBYGN told you that you can’t have a child naturally after you had a C-section they are telling you a medical lie. I know of at least three females that had one or a few natural births after they had an emergency C-section and the child(ren) are perfectly healthy. Choosing a doctor is not an easy choice because there’s a Trust that comes with that choice. So ladies, be very selective because there’s lots of con-artists in the medical field just as there is in other fields.

      • Anonymous says:

         ‘Ask the OBGYNs before you make such comments or run the risk of a 3rd world doctor delivering your grandchildren."

        They are already delivering your children.