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Scott takes aim at BHB over Hofer lawsuit

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Former health minister Michael Scott has accused hospital authorities of “aggressive” tactics in trying to rid themselves of a lawsuit from a man who was paralysed while in their care.

The Opposition politician also claimed the way that the Bermuda Hospitals Board responded to the civil action from former chef Thomas Hofer was indicative of the way it dealt with complaints of medical malpractice generally.

“That place is not only aggressive, it's got a system down there that needs a thorough reform,” said Mr Scott, who was Mr Hofer's lawyer between 1997 and 2009. “It hasn't happened yet. It should have.”

He claimed the BHB's response to Mr Hofer's claim of negligence was typical of its “guns blazing” approach to complaints from patients.

“Most definitely, they pursue them aggressively,” he told The Royal Gazette. “They have the money to litigate and litigate you out of existence.”

German guest worker Mr Hofer suffered a broken neck while a patient at St Brendan's mental hospital in 1994 and has been a quadriplegic ever since. According to a letter from his German lawyer in 2008, his around-the-clock care costs his home country some €10,000 (about $10,800) a month.

Mr Scott launched a personal injuries lawsuit on his behalf in 1997, which, if successful, was expected to result in a $5 million compensation payout.

But the proceedings stalled over the course of 18 years and were struck out in the Supreme Court in August, at the request of the BHB, which defended the action and has never admitted liability. The judgment means Mr Hofer will not receive a penny.

Mr Scott said the collapse of the lawsuit “compounded the tragedy” of the alleged negligence he suffered.

“The case merited action against the hospital,” he said. “He went in for observation and left a quadriplegic. The system let him down and was clearly negligent. We treated this German citizen with such disregard. That's why I thought this case needed to continue to be prosecuted. He was a guest in the country. He came completely OK and came to grief in this country.”

Mr Hofer's action was struck out by Chief Justice Ian Kawaley because it took too long to come to trial and was prosecuted in a way that amounted to “an abuse of the process of the court”.

Dr Justice Kawaley did not criticise Mr Scott but previous judgments in the case blamed him for much of the delay and revealed he failed to reply to requests from the BHB's lawyer, sent in 2004 and 2006, for a settlement figure.

Mr Scott said: “There was prodigious work done on this case by myself. This wasn't a case where I made money out of it, clearly.”

He added: “I'm not quite sure what was operating in my mind as to why I didn't get to [reply]. I know [the BHB lawyer] was simply giving me a very aggressive timeline to offer a settlement.”

The Shadow Attorney-General said he could not “pull a figure out of the air” for a settlement because an expert medical opinion was needed on Mr Hofer's condition and obtaining it was difficult and time-consuming because his client returned to Germany to live in 1994. A request to the BHB for interim payment to fund the expert opinion was refused, he said.

Limited legal aid funding also affected progress on the case, according to Mr Scott, as did trying to locate X-rays, which had gone overseas and which the BHB requested to see as part of its defence.

Mr Scott said that he continued to represent Mr Hofer after he was appointed to the Cabinet in 2003, but became “alive” to a conflict of interest when he was made health minister in 2007. The BHB is a publicly funded quango and comes under the portfolio of the health minister.

“I was alive to the fact that I couldn't act for Mr Hofer,” Mr Scott said. Asked if he informed his client, he replied: “I'm sure I didn't.”

He said while he was in that role — from June to December in 2007 — he had concerns about standards at the BHB, and Mr Hofer's case gave him further insight.

“It was a very serious case and what I viewed as a horrible breach of duty by this hospitals board [and] this system of care at St Brendan's. I can certainly say as [a former] Minister of Health, the hospital ought to have been interested in finding out what the system breakdowns were.

“As Minister of Health, I was often engaged in looking at reductions of falls and negligence. It was in the interests of the hospitals board to ensure that the system worked. I have not been informed of any changes.”

Mr Scott, a former Attorney-General, said he spent more than 100 hours working on Mr Hofer's case over the 12-year period that he was in charge of it, receiving little, if any, payment. Larry Mussenden, also a former Attorney-General, took over the case in 2010 and remains Mr Hofer's lawyer.

“What's significant is that two of us sought to get this case to trial, but the resistance was prodigious and tactical,” said Mr Scott, who added that his client should have received full legal aid. “[The BHB] came in with guns blazing to get it struck out.

“They needed to get this case off their books because their auditors don't like them. The case didn't get to trial because of the guns blazing from the hospitals board — this board that caused this man injury.”

The BHB said yesterday that it had no comment on Mr Scott's allegations, but it pointed to the Chief Justice's comment regarding the way the case was prosecuted.

The board did not answer a question about whether Mr Hofer's accident prompted any changes at St Brendan's, which is now the Mid-Atlantic Wellness Institute.

Thomas Hofer was a talented musician before his accident
Treated with disregard: Thomas Hofer working as a chef before the incident at St Brendan's
Thomas Hofer pictured in Germany after the accident at St Brendan's that left him paralysed

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Published November 04, 2015 at 8:00 am (Updated November 05, 2015 at 3:04 pm)

Scott takes aim at BHB over Hofer lawsuit

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