by Larry Smith
The serious public interest issues raised by the unexpected death of 42-year-old Christopher Esfakis - the son of one of Nassau's legendary GPs - at Doctors Hospital seven years ago remain unresolved, despite multiple attempts to have them addressed.
These matters relate to the delivery of healthcare to all Bahamians and are separate and apart from the personal liability issue surrounding the death itself. That is tied up in a civil suit filed by Esfakis' widow, Lisa, against the hospital and six doctors in 2003. It is still before the court.
But before we look at what the public interest is, here's a brief summary of events to date in this multifaceted case:
A few months after Esfakis died in April 2002, his family began questioning the medical treatment he had received (on the advice of concerned doctors). Following a review of the case by local and foreign experts, the family launched several initiatives to have the matter investigated.
In June 2004 a complaint was filed with the Hospitals and Healthcare Facilities Board, which did not respond. Although the board was later directed to investigate by former health minister Marcus Bethel, it has so far declined to do so - at one point suggesting the complaint should be dropped because the patient was dead.
The Hospitals Board was created in 1998 to license private healthcare facilities. Although the law requires annual reporting to parliament, the board has done so only twice in its 11-year history. Its second report was tabled in December 2008 and has a section dealing with the Esfakis case, which complains about the board being "badgered" and "ridiculed" over the matter. It also calls for the introduction of extensive hospital regulations "which do not now exist."
This report noted that the Attorney-General's office had recommended an investigation of the Esfakis case, and the board's own legal committee had called for the appointment of an inspector to determine whether or not Doctors Hospital had "properly addressed" issues arising from the death. The board collected $238,000 in license fees in 2007, proudly claiming it was "almost self-sustaining" - hardly noteworthy when you consider that its primary function is simply to collect fees.
In August 2004 the deceased's sister (who is a lawyer) began asking the coroner's office for an inquest, which finally began in January 2007 - more than four years after the death. In early 2008, the coroner ruled that death was due to "natural causes with a substantive and significant contribution of medical neglect", but a few months later the principal doctor involved sued for a judicial review of the verdict.
Chief Justice Sir Burton Hall then overturned the verdict on a technicality (unrelated to the evidence) and ordered a new inquest. But since he did not sign or provide reasons for his order, one could not be scheduled and there were no grounds to appeal. Shortly before leaving to take up a foreign posting, Sir Burton signed the order and it is expected that a new inquest will now be scheduled.
In May 2008 a formal complaint against the doctors involved in the treatment of Christopher Esfakis was made to the Bahamas Medical Council, which initially refused to deal with the matter. But the council reconsidered and eventually referred the matter to a disciplinary tribunal in accordance with the Medical Act.
Although the council was created 35 years ago to regulate and license doctors, it appears this is the first time such a tribunal has been formed. But the disciplinary proceeding was stalled earlier this year when the principal doctor involved in the complaint filed for judicial review of the council's decision to refer the matter to a tribunal. And he subsequently obtained an injunction from the chief justice barring the Medical Council from proceeding "until a final judicial determination has been arrived at."
The injunction included a gag order preventing the council from "discussing the facts and matters surrounding this action, and the complaint, to third parties" on pain of imprisonment and confiscation of assets. This leaves open the question of when the judicial review applied for by the doctor will be scheduled by the new attorney-general (Brent Symonette) or chief justice (Michael Barnett).
So that's where things stand right now. The public interest issues are best summarised by a petition to the prime minister that has been floated on the Internet by Bahamas Patient Advocacy, a group formed by the deceased's sister, Leandra Esfakis. It calls for "accountability under the law for citizens accessing the healthcare sector", meaning the investigation of complaints against healthcare providers, together with steps to address any failings that may be uncovered as a result.
Hospitals Board Issues
it is pretty clear that only continuous publicity and pressure from the deceased's sister forced the Hospital Board to produce the first two "annual" reports in its 11-year history - even though the second report spends a lot of time whining about how the board should not have to investigate or act on any complaint, as it has a statutory duty to do.
Experts also point out that there is no proper legal definition for a hospital in the Bahamas. Such facilities are currently described as buildings "where beds are available" for sick people. But this definition does not include a central legal entity that is responsible and accountable for the medical services provided under its roof. In other words, it should be the medical services that are licensed - and not just the building.
The board's most recent annual report proposes changes to the law that would seriously weaken its authority as an oversight body, by removing the provision for investigation of complaints, eliminating the need for facilities to provide notifications of deaths, and reducing penalties for failure to comply with licensing requirements.
But the report also proposed a new and extensive set of hospital regulations, relating to governance, reporting, planning, administration, end-of-life policies, staffing and record-keeping among others. Therefore, the board is saying it wants to give up its oversight responsibility, while at the same time asking for a dramatic increase in the regulatory requirements for private healthcare facilities.
Coroner's Inquest Issues
If a new inquest is ordered, the matter will have to be heard from scratch - despite the fact that the last inquest took 15 months to complete and absorbed a good deal of the court’s time, apart from the time of the 20 witnesses involved. It is also possible that the witnesses who were available previously may not be available for the next inquest, for any number of reasons.
Also, at present the Coroner has no power to direct a statutory body such as the Hospitals Board or the Medical Council to address issues of medical competence or public health and safety that lie at the heart of this case (a transcript of the original inquest can be found at www.bahamaspatientadvocacy.org).
The Bahamas Coroner’s Act was passed a century ago, and no amendments or regulations have been made since. The equivalent British law was last revised in 1988 and it authorizes the coroner, at the conclusion of an inquest, to refer matters to the appropriate statutory authority. At present only the deceased's family can make a complaint to such authorities in the Bahamas, and this exposes them to a lengthy and costly legal process as well as possible retaliation.
This means that few complaints are made and the kind of negligence which can lead to the death of patients is unlikely to ever be investigated or remedied. There is currently a backlog of unheard inquests, and the long delays represent a failure to meet the needs of many bereaved families. The former attorney-general promised a review of the Coroner's Act before resigning to become chief justice, but there has been no indication of what amendments are being considered and in what timeframe.
It seems clear to me that the Coroner's Court should be the citizen's watchdog when it comes to investigating abuse of power. That's because we all have a right not to be unlawfully deprived of our life. This scrutiny is even more critical when a citizen dies in the custody of the state or a hospital, where it is likely that only the police officers or hospital staff are aware of all the facts that led to the death.
And in order to provide this protection, an inquest verdict of manslaughter against a police officer, or anyone else, needs to proceed in the Supreme Court, and not lie buried in the Attorney-General's office. And system failures at hospitals need to be dealt with expeditiously and transparently.
Medical Council Issues
The question here is, when will the judicial review application from the principal doctor involved in the complaint be scheduled by the courts? If there is substantial delay, he will have won de facto immunity from investigation by the Medical Council.
With no hearing date, and thus no determination of the claim against the council, the injunction could remain in place indefinitely - an extraordinary situation according to legal experts from other common law jurisdictions. This means that a doctor could be licensed without evaluation, despite outstanding complaints.
Officially, the council takes no position on the matter, but says the complaint is still alive. According to Dr Duane Sands, "the council continues to respond to the various issues that have arisen as this meanders through the labyrinth of our judicial system. The matter remains very much active."
But if a judge can shut down the Medical Council by order, and the Hospitals Board refuses to act, and the Coroner has no power to direct authorities to address issues raised by an inquest or refer matters to the Supreme Court, then a potential bottom line civil rights protection - that of criminal sanction - is effectively removed.
Finally, any legal matter becomes automatically weaker as time goes on - not to mention more costly. And if a relatively affluent family with extensive legal and medical connections finds it difficult to pursue a complaint such as this, what can the average citizen expect?