Damages case goes to Privy Council
A patient who suffered an agonising wait for surgery at the Island’s only hospital is being taken to the Privy Council by those he successfully sued for damages.
Bermuda Hospitals Board has opted to go to the Island’s highest court of appeal, in London, to avoid paying $58,000 to Kamal Williams, a father-of-two who had to wait more than ten hours for a desperately-needed appendectomy at King Edward VII Memorial Hospital in May 2011.
Mr Williams, who suffered a burst appendix followed by life-threatening septic shock, told The Royal Gazette he would fight the latest court challenge, despite his mounting legal bills, which he said now totalled more than $200,000.
“This is not solely about money, it’s about accountability,” said the risk analyst, adding that BHB could have agreed an out-of-court settlement with him three years ago but instead aggressively pursued a costly and time-consuming legal battle.
“A very important reason for me taking this case this far is because the BHB refused to offer any type of formal condolences or take responsibility for anything,” he said.
“All I wanted was a formally written apology saying ‘We messed up. We’re sorry. Here’s something for your trouble’. The fact that they didn’t say that made me very angry. They underestimated my patience.
“A lot of people don’t have the time or money to pursue the hospital when they do something wrong. Initially, I was pursuing this to right the wrong they did to me — now, I’m also doing it for the people who don’t have the means to challenge them.”
BHB said the decision to appeal was driven by its medical malpractice insurers, who will meet “all potential costs”, and was based on detailed advice and a belief that the board was in the right.
Mr Williams was admitted to KEMH’s emergency room on the morning of May 30, 2011 with serious stomach pain.
Screaming in agony by 11.44am, he didn’t have a scan to check for possible appendicitis until after 5pm and the results of the scan weren’t received from an overseas agency — in Australia — until after 7pm.
His operation began three hours later when surgeons discovered his appendix had ruptured, causing complications including sepsis. Mr Williams was on a respirator for the next seven days.
He asked BHB for $100,000 in damages in August 2011 but the board insisted he had a “rare but known complication” which was to blame for what happened — a claim it later dropped.
The matter went to litigation and a Supreme Court judge ruled last year that he should be paid $2,000 in damages by BHB for pain and suffering and almost $80,000 for legal costs.
Mr Williams appealed the amount of damages and the Court of Appeal agreed in March this year that the Supreme Court should reconsider its decision.
Puisne Judge Stephen Hellman ordered in May that BHB pay the patient $58,000 in general damages for the injuries he suffered as a result of its negligence plus medical expenses and $14,400 for loss of earnings.
The board, which receives close to $150 million from the public purse annually, is now understood to have hired a costly Queen’s Counsel in London to appeal the Court of Appeal’s ruling on damages — a decision criticised by Mr Williams.
“Now that the shoe is on the other foot and I am the respondent and not the appellant, I will need to hire Queen’s Counsel if I wish to have the best representation at the Privy Council,” he said. “I have been told that this will cost another $40,000 to $50,000.
“I really believe that the hospital initially tried to get out of paying anything and tried to test my time and patience but now they are just wasting their time and money trying to save face after they made a mistake they’re not willing to acknowledge.
“It’s important that anyone interested in this case understands how fast the costs can mount up and how they could have been avoided.”
He shared the results of an internal inquiry by the hospital — conducted in June 2011 but not disclosed to Mr Williams’s lawyer until November 2012 — which revealed a number of factors which “directly affected the outcome” of his case, including that the urgency of his condition was not properly communicated by medics (see sidebar).
A BHB spokeswoman said: “All hospitals have to manage legal cases as a matter of doing business and decisions regarding whether to defend a case or settle are always based on the merits of the case.
“At BHB, the decision[s on] whether to proceed to court or settle are undertaken by the board, based on the advice of legal, clinical and insurance advisers. This is a fiscal responsibility, to ensure the appropriate and considered use of BHB resources and funds.
“Only where BHB and its insurers believe there is a meritorious defence to an asserted claim, or there is a key principle which BHB needs to defend, will it proceed to court.
“Most cases are covered by insurance and the decisions regarding actions are taken with the advice of our underwriters. If BHB was potentially exposed to a material out-of-pocket liability related to litigation, this would be included in its financial statements and a note included to explain the liability, in adherence to auditing requirements.”
She said it would be “absolutely inappropriate to publicly disclose details of BHB’s appeal” of Mr Williams’s case but confirmed that it was proceeding to the Privy Council, “a decision that has been driven by our insurers who are covering all potential costs”.
“The decision to appeal is based on extensive and detailed advice, as well as a continued belief that the facts of the case support BHB’s position. There are legal and clinical implications related to this case that need to be appealed.
“Both BHB and its insurers have a fiscal duty in this matter, as it affects future liabilities and potential payments, beyond this one case. BHB costs to date in this matter are covered by insurance.”
According to its most recent annual report, for 2010/11, BHB has a medical malpractice insurance policy which covers it annually for up to $10 million per claim or $30 million in total. The spokeswoman confirmed that the coverage was the same this year and included related legal costs and expenses.
She added: “If it did not feel there was merit following an investigation — ie if BHB is in the wrong — it would not contest [a claim].”
Hospital chiefs failed to share a key internal report into the medical care of Kamal Williams for almost 18 months.
Bermuda Hospitals Board conducted a “root cause analysis” in June 2011 into why Mr Williams had to wait more than ten hours for a desperately-needed appendectomy at King Edward VII Memorial Hospital.
The inquiry was carried out just a week after his surgery — yet it wasn’t disclosed to Mr Williams’s lawyer until November 22, 2012.
BHB’s lawyer Allan Doughty attached it to a letter, in which he wrote: “Please note that this document was not previously enumerated in our list of documents due to a clerical error as the document did not name Mr Williams and was not placed with his patient ‘chart’.
“We have only just learned of the existence of the document and accordingly disclose it to you. We otherwise do not view the conclusions contained within that document as amounting to an admission of liability given that Mr Williams was operated on within 12 hours of the onset of his symptoms.”
The analysis identified a number of “controllable factors” which “directly affected the outcome” of Mr Williams’s care, including that:
• BHB didn’t have a “policy or protocol to establish behaviour” for diagnostic tests like CT scans, such as a “physician to physician phone call”;
• the process was “technologist dependent” but shouldn’t have been as “techs should not be required to be the gatekeeper” for scheduling scans;
• the overseas reporting agency in Australia which read the results of Mr Williams’s CT scan did not share it for more than an hour with the emergency room (ER) doctor;
• the urgency of his case was “not communicated to the on-call radiologist through doctor to doctor communication”;
• BHB didn’t have a policy or protocol outlining the process for patients needing surgical evaluation in ER with acute abdominal issues;
• the board didn’t have a process in place to expedite results from the overseas reporting agency in the absence of the on-call radiologist; and
• there was a “lack of documentation throughout [the] patient’s journey”.
A BHB spokeswoman didn’t respond to a question about why the board didn’t disclose the root cause analysis report until November 2012.
In recent months, BHB has withheld a root cause analysis from the family of Latifa Maybury, a young mother who died at KEMH last November after being diagnosed with cancer.
In that case, BHB said it was because “root cause analysis documentation is usually only fully disclosed in a court of law as part of a legal case”.
