Law Reform Commission says don’t limit claims
(CNS): Following a request by the minister of health to reform the country’s tort laws to put caps on personal injury awards and to limit the time period in which they can be made, the Law Reform Commission (LRC) has recommended against it. Opening the review of the law for public debate and consultation, the LRC has published its findings and recommendations and is now seeking comment. The pressure for reform has come as a result of escalating fees for doctors’ insurance cover because of a number of high awards. However, in its provisional recommendations the LRC has warned that capping claims does not necessarily remove the problem of increasing premiums but can undermine access to justice for those who have suffered because of medical malpractice.
The LRC has instead proposed introducing a standard of care in medical negligence; establishing an expert witness rule and introducing alternative dispute resolution rather than limiting the court’s hand and claimants’ access to justice.
In their preliminary findings the law reformers said research suggests that there is no solid empirical evidence that limiting claims will alleviate the problems in the insurance markets but that it will impact access to justice. “The appropriate approach should strike a balance between responding to the concerns of reasonable critics about civil law remedies whilst affording relief to those who suffer as a result of serious and perhaps avoidable mistakes in the provision of health care,” the reformers said in their report
The pressure for reform has come from the Cayman Islands Medical and Dental Society as a result of escalating Medical Protection Society subscription rates for practising obstetricians and gynaecologists, which provides their professional indemnity cover. A 400 percent increase in annual premiums had been proposed by the MPS as a result of local judgment award precedents in personal injury cases and a number of unresolved malpractice claims pending in the courts of the Cayman Islands arising from the mismanagement of new born deliveries.
In the process of its review the LRC examined the proposals put forward by the Ministry of Health to impose legislative caps on the award of non-economic damages in cases of personal injury, with a particular emphasis on medical malpractice, and to reduce the limitation periods applicable to the time frame within which an aggrieved party may pursue a claim for damages.
The paper may be viewed on www.gov.ky Submissions should be submitted in writing no later than 19 November 2010 to the Director, Law Reform Commission, c/o Government Administration Building and may be posted, delivered by hand to the offices of the Commission on 3rd Floor Anderson Square or emailed to cheryl.neblett@gov.ky.
Category: Headline News
There seems to be the assumption that insurance premiums will go down, but, will it. Surely this will be up to the insurance companies and as history shows, they never do that. I cannot help but note that the insurance companies are very quite. They have probably taken the view that it has nothing to do with us. Further, how many persons (Americans in particular) will come to Shetty’s hospital when they here of such a law? Very few. No patients no jobs no hospital.
This is a question you should not let the lawyers decide
There has been a substantialamount of medical malpractice for years here in Cayman at the Hospital. For years people went in for one simple thing and came out in a death bag…sometimes they do give people the wrong medication they will tell them that they have this and its nothing serious to worry about and the next thing you know they are on their death beds! We as Caymanians knew about what has been going on here for years and all we do is talk about it ! yet, we do not do anything about it. What the Government need to do is to make sure that we are not hiring fake Nurses and Doctors with fake college diplomas and run an accurate check on their backgrounds!
Mr. Mark Scottland I fancy you are doing a wonderful job as the new Minister of Health but do me one favor please! Go back and check and see how many people has died already by the carelessness of malpractice! Every single one of their families should be compensated and should be given an apology because of these serious mistakes. Who cares about these Lawyers? They are already money hungry as it is! What y’all need to be doing is start compensating fees back to the deceased families.
"Wonderful job, eh?" Did you know Mr Scotland is planning to pass legislation to open the floodgates, so that any "doctor" from any country can get registered here. Currently, some standards are applied by the registering body (as laughable as that sounds) but if Scotland gets his way you can present a diploma from the University of Bunga Way Way in Absurdzakstan and get registered to practice in Cayman. If you think we having problems now, wait til then. Me, I gine Miami for my check-ups Tee Dee!
A disgraceful report with supporting bad facts.
Like many readers have commented, the attorneys have a lot to loose. Many of them will have to work longer than now to get their big bonus retirement packages. The report is therefore not surprising.
The intention of the refort is not to geting the hurt patients and families financila compensation. At the present times, I gather these matters are dragged on for many years by lawyers to generate hefty fees for themselves. In theend, the victim or their families do not get much more after this long weight and uncertainity.
Many countries have adopted Tort reform. Let us also do the needful. Otherwise , years later we will regret this inaction. By the way, let us not forget– many of these lawyers would have these islands wjen the health care delivery system is in shambles.
Cayman does not aware punitive damages like they do in America. So all that this law would mean is that seriously injured people would not be able to get money to pay for the care they need (and the government would have to pay to provide less effective care). Awards above $500,000 only exist to compensate the serious ill receive long term care. Why are we going to allow the disabled victims of medical negligence to suffer to allow Dr. Shetty to reduce his insurance costs?
The cap is proposed for non-economic damages ONLY, i.e. "punitive" damages which are over and above the actual costs awarded for economic damage. Punitive awards are not expected to compensate the person for actual costs but rather serve as an extra punishment for the person who was in the wrong and extra compensation for the person(s) affected (sometimes it is considered as payment for the distress caused).
This proposed change will NOT limit compensation for actual costs; any victim of malpractice, medical negligence, reckless conduct by a health professional, etc will be entitled to the full economic costs (if awarded by a court) to cover bills and other costs already incurred as well as expected future expenses.
You are right that in Cayman (and other common law jurisdictions), unlike the US, courts do not typically award large punitive damages, so what is the harm in limiting them? Yes there will probably be at least one case where gross malpractice could justify punitive damages of over $500,000, but hypothetical worst case scenarios make bad policy.
In my humble opinion the cap should be implemented for the public good. I do not, however, think the time limits to bring claims should be shortened and agree with the LRC recommendations on that matter.
Non-economic losses cover compensation for on-going pain, physical distress, loss of enjoyment of life and physical impairment, to name a few. Calling these types of claims punitive is to mask their true nature.
Let’s say that Selita Ebanks, when visiting the island needs some routine dental care.Through the negligence of the dentist ( with apologies to Cayman’s dentists) a nerve in her face is severed, causing one side of her mouth to drop beyond repair, causing severe pain throughout her remaining life, causing huge changes in her lifestyle and curtailing all joy for her. Does $500,000 cover this? Forget Selita; what about any young Caymanian girl?
There will undoubtedly be some cases where $500,000 is just not enough, but hey, what do i care, it won’t affect me. Or will it? Feeling lucky?
The beagle is sniffing up the wrong tree. He/she is not alone with these common miconceptions.
There is currently nothing to stop punitive damages being awarded in Cayman; it is just thankfully not in our culture to do this.
The law will not cap awards to the injured at $500k. Victims of medical malpractice will still be able to get appropriate reimbursement for their lost income, medical costs, atty fees etc. even if those costs run into the millions of dollars This law is only addressing the excess punitive damages that could be awarded in addition to the economic in order to teach the hospital a lesson.
This law will allow Dr. Shetty to reduce his insurance costs. Why is that a bad thing? He will have more money to hire better doctors and better equipment. The law will also lead to lower liability premiums for all the doctors currently working in here and more importabtly lower health insurance premiums for everyone living in Cayman.
In a country that is so expensive this simple measure to rein in the cost of living should be welcomed. Victims will still be fairly compensated and we all save money. Win-Win.
"The law will also lead to lower liability premiums for all the doctors currently working in here and more importabtly lower health insurance premiums for everyone living in Cayman".
That is the theory. I think a key point of the LRC report was that it will not necessarily do that. How do you ensure that insurers will lower their insurance premiums simply because of this law?
"How do you ensure that insurers will lower their insurance premiums simply because of this law?"
The organisation which provides professional indemnity for all the clinical staff employed by the HSA and also indemnifies most of the private medical practitioners has told Government openly that if non-economic damages are capped, there will be a positive effect on the rates it charges.
And this is not a profit-making insurance company. It is a not-for-profit, mutual organisation and the largest of its kind in the world.
Anti-Shetty much?
Bud this is about punitive damages only. It won’t stop people from getting compensated for losses.
This is why we are having lawyers here making rediculous figures like $500/hr.
The next thing I would say is this. We need to weight the positive against the negative. We have to look at all of those people who will be able to get good health care and be able to afford much needed operations that could save lives Vs people and their lawyers looking for that BIG payday. I don’t know about you but a life loss is nothing worth any compensation you can get in court.
Much less it leaves us with GT Hospital and let’s just say they don’t exactly have a sparkling record of healthcare.
Frankly I think you just need to get over yourself for a moment and look at the big picture.
– More income for the Cayman Islands (Possibly a 3rd revenue leg)
– Better and more affordable care for people of the Cayman Islands
– Lowered insurance cost?
I would think that by lowering health care cost in Cayman that health insurance cost would follow suit. If that is so we could also show how well this is for Cayman by actually having more money in our pockets.
Will it impacts us negatively? Yes. More cars on the road. More people at the supermarket. More kids in our schools. But is that all bad too? More usually means more business for local businesses which should enhance theeconomy.
Fear not! A well informed body has studied the problem and made a recommendation. This is a surefire indicator that their advice will be summarily ignored by the current administration. Surely the Premier is capable of making this decision without input from "experts".
To those being critical about attorney’s fees etc…Try telling a mother who’s new born baby has been left brain damaged for life because of a doctor’s negligence that she can only recover $500,000 worth of damages because you’re worried about exorbitant legal fees!
Please read the report. The only thing the proposed cap relates to is "non-economic" damages, not damages related to caring for a brain damaged person for life.
There is no way that the LRC should be the decision makers in relation to this issue.
I have no problem with each of the special interest groups having their say, whether it be the medical professionals or the lawyers. The entire community should have their say – but not exclusively in the context of the LRC filtering what the community has to say.
Having taken time this morning to read the LRCs report, it seems clear to me that the LRC’s considerations failed to consider the broader interests of the community, and that they present a skewed analysis of the issues from an overly legalistic "maintain the status quo" basis.
They somehow suggest that because there is no evidence that the reforms suggested would have changed any of the small number of existing Cayman Islands malpractice decisions, therefore the existing law should not change. This is backwards.
If there is no evidence that the changes suggested would cause harm to the community, but it is clear from the evidence of those actually dealing on a day to day basis that the proposed changes would allow specialist physicians to continue to provide services in Cayman, and the changes would also provide the commercial certainty to allow investment in the health care infrastructure of these Islands need, then I would say the changes should be made.
Why cannot the Minister invite comments from the public directly? It is entirely inappropropriate that comments of the public should be filtered through the LRC. They have already shown the way they look at things.
Lets hope the Minister does not fall for this report or we are doomed…Shetty is the only light at end of this tunnel.
That’s the end of the Dr. Shetty hospital then…
it will be the excuse given for why shetty won’t happen…..but the real reasons are far more complex and serious for cayman (i.e the inability of cayman to offer value for money)
of course the law review commission would recommend against this as this would interfere with lawyers being able to charge exorbitant fees and making lots of money out of any possible claims
That’s right – blame the lawyers. Since you clearly have have no understanding of the issues why bother to post? Cayman lawyers do not charge 1/3 contingency fees like U.S. lawyers, but generally charge for time spent.
You miss the point Chris makes. We have a massive structural issue in Cayman’s financial services industry in that all those people and companies (yes companies) setting up as indendepent directors.. are in fact indemnified in their roles.
Surely the whole point of independent directors is to look after the interests of shareholders, but if they are indemnified, where is their incentive to do so ?
The point (if I have it right!) that Chris is making is that the same Cayman legal profession who are recommending against limits on medical malpractice are making no noise at all about the total limitation of director liability through indemnities.
Is there a connection between that and the enormous profits made by arms of those law firms in offering those directorship services on a corporate level ?
You decide… now back to your regular programming.
It is interesting to see that it is recommended that there is no cap on medical liability. This comes at a rather interesting time when there is discussion on why directors of Cayman companies are indemnified against their own negligence. It would appear therefore that a committee, preferably not consisting solely of lawyers to study making directors’ indemnities illegal would support such a move.
It is interesting that the LRC has recommended against this as they benefit the most from having no liability cap as it helps to feather their nest with more legal fees. As a single mother my medical costs have increased and a big factor to this increase according to my OBGYN is his insurance has gone from approx. 30k per year now to over 130k per year for malpractice coverage.
I find it strange that the only people that were to asked to provide input on this were the legal society, yet the medical society was not asked to provide their input.
I believe that having a cap on malpractice would help to reduce medical costs and as a single mother in recessionary times we need all of the reductions we can get, as opposed to making attorney’s richer.
a cap would have zero effect on the fees charged by attorneys – it would merely limit the amount of damages which the injured claimant could recover (attorneys in Cayman generally charge on a time spent basis, with no link to the ultimate award).
The Law Reform Commission is not "the legal society". It is a body which is charged with making recommendations for law reform or reviewing proposals for law reform.
The medical society as well as the nursing and mid-wifery association were asked for comment.
Before jumping to conclusions about the bad motives of the LRC why don’t you try to read and understand its report?