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BHB concedes $1.9m defeat

The Bermuda Hospitals Board will not appeal a judge's decision to award $1.9 million in damages for medical negligence to a man whose wife died after her cancerous tumour was missed by an emergency room doctor.

However, the publicly funded quango was sharply criticised yesterday by widower Kemar Maybury and his lawyer, Jai Pachai, for contesting the lawsuit in the first place and for failing to settle the matter, and other negligence cases, at an early stage.

Mr Pachai told The Royal Gazette: “In cases such as this, the BHB should accept its moral and legal obligations and act fairly and reasonably towards patients and their family members, in terms of accepting responsibility and making compensation payments.”

Mr Maybury explained: “Mr Pachai indeed has said exactly what is needed in regards to the decision and how BHB has handled this case and the dozens, if not more, similar experiences like this by other families or patients.”

He added: “The Royal Gazette cannot print enough words to bring life back, nor can any amount of money be given to replace one.”

The father of one brought a civil case against the BHB after his Moroccan wife, Latifa, died in November 2013, when their son, Khaleel, was just six months old.

Mr Maybury said that the child, now 6, was the person most affected.

“He has a name, questions and expectations. What he does not have is his mother.”

Mr Maybury questioned why the board would have spent “almost a decade and millions of dollars to try and convince themselves they have not committed a breach of duty of patient care [only] to finally admit, at the eleventh hour, that they did absolutely breach duty of care”.

Mrs Maybury, 30, had terminal colorectal cancer diagnosed days after their baby was born, having not known she had the disease throughout her pregnancy and before she conceived.

The BHB admitted during the Supreme Court proceedings that it was a breach of its duty of care when emergency room doctor Jacquiline Bisasor-McKenzie misdiagnosed internal haemorrhoids in Mrs Maybury in August 2012, after she went to the King Edward VII Memorial Hospital with rectal bleeding and stomach pain.

It also admitted it was in breach of its duty when it failed to ensure a faxed copy of Dr Bisasor-McKenzie's discharge summary, which included a follow-up instruction for Mrs Maybury to be referred to a specialist for a colonoscopy, was received by her GP.

The board argued that even if the right diagnosis had been given it would have made no difference to the outcome given what it claimed was the “advanced staging” of the cancer in August 2012.

However, Chief Justice Narinder Hargun disagreed, ruling on January 23 this year that Mrs Maybury would have been “treatable for cure” had she received the proper diagnosis at that time.

Allan Doughty, lawyer for the BHB, told the court after the judgment was handed down that the quango was “very serious about appealing this matter”.

The board said in a statement the same day it had not yet decided on an appeal. The BHB has now confirmed it will not appeal. Mr Pachai said he considered the “reference to an appeal at that time to have been a distraction from the outcome of Mr Maybury's case”.

He added: “Any appeal was bound to fail bearing in mind the CJ's findings on the issue of causation resulting from the BHB's admitted breaches of duty in relation to Latifa Maybury's care and treatment and the amount of damages essentially conceded by Mr Doughty at trial.”

Mr Pachai also represented Kamal Williams, a patient who suffered life-threatening damage to his heart and lungs owing to avoidable delays at KEMH and won $60,000 in damages.

The BHB appealed his civil suit all the way to the Privy Council in London, Bermuda's highest court, where it lost the case and was ordered to pay his legal costs, estimated to be at least $500,000.

Mr Pachai said Mr Maybury's claim “and other negligence cases, such as the Williams case, ought to be settled by the BHB and its insurers at an early stage instead of putting the Maybury family, not only through the agony of Latifa's illness and death, but also the unnecessary expense of a contested lawsuit which, of course, is heavily subsidised by all taxpayers”.

Keetha Lowe, Mr Maybury's mother, said of the Chief Justice's judgment: “It's not just a win for the family; it's a win for Bermuda.”

She added that now the BHB had confirmed it would not appeal she felt “a mixture of emotions, because we have been processing this now for almost seven years and so the journey has been a tall order to say the least for our entire family.

“It has certainly been a journey for our lawyer as well. He stood by our side relentlessly. He believed it had to be addressed on fair terms and I believe we have done that.

“It does not recuse what has happened altogether and that's the truth.”

Ms Lowe praised Ombudsman Victoria Pearman for conducting an inquiry into the hospital's conduct, which has not been made public.

She said Latifa played a key part in getting justice done, imploring her mother-in-law to tell her story once she realised how ill she was. “She was a very private and modest individual, so for her to make that request and for us to adhere just speaks volumes.

“Latifa's objective at that point was not just for justice to be done, but for the community to become educated about what can happen and does happen.”

Ms Lowe said she understood that her daughter-in-law's death had been the “impetus” for many changes at KEMH.

“This is not what quality medical care looks like,” she added. “This did not have to happen. We have got to make sure that it doesn't repeat itself in this community. Right now that's the key message because the amount of destruction that occurs through a process like this is insurmountable.”

A BHB spokeswoman said: “Following a review of the judgment by BHB and its insurers, BHB is not appealing the case.”

In response to questions about why this and other cases were contested, she said: “Each case is decided on an individual basis. There is no one course of action that is correct for all cases.

“Settling early is not always the best course of action, nor over the long term would it save public funds. Each case is decided on an individual basis.”

The spokeswoman said: “BHB recognises that the early passing of Mrs Maybury is a tragedy.

“We have tried our best to investigate the matter and share our findings openly, and when it was taken to court by the Maybury family, to follow due process, acknowledge where we feel our service failed, and then introduce improvements to prevent a similar occurrence.”

She said BHB did not settle any patient claims in the financial year 2019-20 and was not involved in any court cases, except the Maybury matter.

• It is The Royal Gazette's policy not to allow comments on stories regarding court cases. As we are legally liable for any defamatory comments made on our website, this move is for our protection as well as that of our readers.

A breach of duty of care: Bermudian Kemar Maybury and his Moroccan wife, Latifa on their wedding day in 2009. Mrs Maybury died on November 18, 2012. Just six months before, during childbirth, a massive tumour in her colon was discovered and she was declared terminally ill (File photograph)

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Published March 12, 2020 at 9:00 am (Updated March 12, 2020 at 3:57 pm)

BHB concedes $1.9m defeat

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