Compensating the mothers? What the law says.
Many persons who are outraged at the death of premature babies born at the University Hospital of the West Indies (UHWI) have been wondering whether the law provides for compensation for the mothers. Disclosure: Marc Francis Ramsay & Company represents three of the mothers who lost their sons to infections at the hospital.
In order for a hospital to be liable in negligence, three elements must be satisfied: (1) a duty of care owed to the patient (2) a breach of that duty (3) damage to the baby resulting from the breach.
Whenever a hospital accepts a patient for treatment it has a primary non-delegable duty of care, vicarious and direct, to use reasonable care and skill to cure him of his ailment. In other words, the hospital has a duty to provide a safe system for the provision of health by providing reasonable care, treatment and facilities.
For example, a hospital can in breach of that duty via the negligence of its nurses and doctors or by generally failing to adopt a safe system for the provision of health. For a doctor or nurse (skilled individuals) to be negligent he or she must fall below the standard accepted and practised as proper by responsible medical men and women skilled in the same field. Where it can be established that the cost and practicability of measures to avoid the harm was not too onerous, there was a reasonable likelihood the breach would cause harm and the gravity of the consequence of the breach was foreseeable it can be said that the hospital breached its duty.
Where there has been a breach, in order to be liable for damages it must be shown that there was ‘causation in fact’ and that ‘the damages were not remote in law.’ Regarding the causation in fact issue, the test is, but for the negligent act, here the hospital’s failure to adopt basic sanitation protocols, would the baby have contracted the bacterial infection and died. The negligent act does not have to be the sole cause of the damage but simply a material cause. Thus whether the baby was already weak or progressing nicely, if the bacterial infection was the material cause of death the hospital is responsible for the damage if it passes the remoteness test.
Concerning remoteness in damages, a hospital would only be liable for those consequences of the negligent act which are not too remote in law, even though such act may pass the ‘but for test’. The consequences are too remote if a reasonable man would not have foreseen them.
A clinical negligence case can be quite a complex undertaking. It is recommended that you speak with an experienced attorney for advice on how to approach the matter.