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Negligence case reaches Privy Council

A Bermudian was forced to relive his agonising 12-hour wait for surgery at King Edward VII Memorial Hospital when its lawyers went to the Island's highest court to argue that he does not deserve his $58,000 compensation.

Kamal Williams screamed in pain as he waited for his appendix to be removed on May 30, 2011. It ended up bursting before he made it to the operating room, his surgery having been delayed by a string of problems at the hospital.

The father of two suffered a serious infection, a heart attack and breathing problems which left him on a life-support machine in the intensive care unit for a week, followed by another week recovering on a ward.

Yesterday, more than four years on, he sat in a courtroom at the Privy Council in London listening to lawyers and judges debate the circumstances under which he became so critically ill.

On the first day of a two-day hearing, the court was told how the lengthy wait for surgery was caused by an overburdened radiology department, lack of communication between doctors, and an important scan having to be sent to an “out-of-hours service” in Australia for interpretation. But the lawyer for the Bermuda Hospitals Board, Caroline Harrison QC, argued that it was not possible to prove “on a balance of probabilities” that the life-threatening complications suffered by Mr Williams were the hospital's fault.

She argued that his critical illness could have occurred in any case, regardless of the long wait.

“You have to prove that the delay has made a measurable difference,” she told the panel of five judges, saying Mr Williams's lawyers had not managed to do that.

According to Ms Harrison, the original decision by the Supreme Court that Mr Williams should only get $2,000 compensation was the right one.

Ms Harrison argued that the larger amount of $58,000 compensation — awarded to Mr Williams when he took his case to the Court of Appeal — should not have been given.

She said the appeals judges based their decision on a point of law called “material contribution”, which is usually applied to the causes of industrial accidents and car crashes.

Ms Harrison said it was “near impossible” for doctors to advise on “causation in clinical cases” and that it would be unfair to expect them to look at things in the same way that medical negligence insurers did.

“Should the doctors be put in that position?” she asked.

However, Benjamin Browne QC, representing Mr Williams, said the serious complications, in what should have been a relatively minor case of appendicitis, were partially or entirely related to that “negligent delay” at KEMH, and that the Court of Appeal had been right.

Mr Browne told the Privy Council the BHB could have called evidence that the risk of Mr Williams suffering complications was high regardless of his long wait for surgery — but did not.

Speaking after the hearing, Mr Williams, who has now recovered from his illness, told The Royal Gazette: “It brought it all back to me as the lawyers were talking about it in court. I'm remembering it because I've lived it.

“I got kind of upset because to them it's just another case, and they've done hundreds, but this is something I have had to think about for the last 4½ years.”

He said the $58,000 he was awarded by the Court of Appeal had already been swallowed up by his legal fees, which are likely to be up to $300,000 by the time the Privy Council case ends.

The BHB, which receives close to $150 million from the public purse annually, took the case to London on the advice of its medical malpractice lawyers, who will meet all potential costs.

Britain's publicly funded National Health Service is worried about the potential ramifications of the Williams case when it comes to future patient complaints in England and Wales.

It has sent written submissions to the Privy Council, saying that if this set a legal precedent, it could lead to a “burden on the public purse”.

Mr Williams, from Southampton, hopes the Privy Council will reject the BHB's appeal and order it to pay his legal bills.

“If it goes my way and it's all over, I will be relieved,” he said.

Photograph courtesy of UK Supreme Court

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Published November 19, 2015 at 8:00 am (Updated November 19, 2015 at 3:52 pm)

Negligence case reaches Privy Council

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