Value of Life
Of recent, I have been reading with some despair newspaper articles about medical negligence in Trinidad and Tobago.
Medical negligence appears to be a quickly emerging and popular legal area whereby an action can be brought for a wrongful death or injuries sustained due to the medical institutions’ failure to properly carry out their duties.
Citizens are becoming more and more aware of their rights and have no difficulty bringing legal actions for what is deemed as negligence by medical personnel and medical institutes.
The legal action does not worry me as I believe it is our right to seek redress for any wrongs committed, but rather, it is the sums of money being sought in these matters which are of concern. In conversation with a fellow attorney, I was told of a hearing whereby the Honourable Judge was constrained to comment that an action against a medical institution was not akin to winning the Lotto. I must agree.
In Trinidad and Tobago, we are guided by legislation and common law. Common law simply refers to decisions which would have been given in previous matters which are similar in nature. In 2008, a decision was delivered on a case which was filed in 2003, the case is known as Tawari Tota-Maharaj—it was determined that the loss of expectation of life was at the value of $20,000. In the matter of CV2015-01441 Between Lionel Rackal (the representative of the estate of Denise Rackal, deceased) -v- Darryl La Pierre and Trinidad and Tobago Housing Development Corporation the sum of $20,000 was adjusted to $25,000.
Let me hasten to add that the Court will consider several other factors in accessing the sum to be awarded to a party.
This would comprise of loss of earnings, damages for pain and suffering and special damages. By virtue of the Compensation for Injuries Act there is also room for dependants to bring a claim which outlines an expectation for their care by the now deceased. It should be considered that these factors apply to persons who more or less would have been gainfully employed. There have been several cases reported within the last five years or more of babies dying shortly after birth, or babies dying as a result of some negligence during the birthing process. If an action had been filed for the negligence which resulted in the death of a baby or even a pensioner who are not persons that can attract a loss of earning or any other such loss, what then would be the approximate compensation/award. The answer being $25,000, which can be slight adjusted to include special damages or pain and suffering if the circumstances of the case warrants.
While I agree that our Court must do a proper balancing act in attempting to determine the sums to be awarded for the loss of life, it stands to reason that no amount of money can properly place a family in the position they would have been should the death had not occurred. It is impossible to weigh in dollars and cents the intrinsic worth of the life which was lost. Yet, I am certain that $25,000 cannot possibly be the award by which our life is valued, this figure should be reconsidered and readjusted.
Who pays?
It is also interesting to consider who pays, for private institutions there are disclaimer documents which are signed upon admittance so any liability is usually shared with the doctors or personnel who are found to be negligent. In the public sector, the parties who pay are you and me and every tax payer in our country.
At present, any action brought against a public hospital is filed against the relevant Regional Health Authority. Usually, the doctors or medical personnel are not named in these actions and, in many instances do not attend court or give evidence with respect to their conduct unless the matter is one of those that are being vigorously defended. Any award for monies to be paid to the aggrieved family is ordered against the regional health authority and therefore paid by the said regional health authority. I am unaware of whether the negligent personnel face any actual ramification for their actions by their employer.
It is my position that the negligent party should be equally liable and not just the regional health authority.
Our Honourable Minister may consider revisiting the contracts which are entered into with personnel and introduce clauses which speaks directly to negligence and actions stemming from negligence. It does not necessarily translate that only personnel may be held fully liable for monies to be paid, but there should be a contributory mechanism whereby the taxpayer does not stand the full brunt of negligent actions.
It should be noted that while I have elected to consider the $25,000 being the value of a life, should a party be injured due to negligence, the considerations for a financial award are certainly different and will be explored on another occasion.
Pavitra Ramharack is Head of Chambers at Pavitra Ramharack Attorneys at Law and can be reached at ramharack_pavitra@outlook.com
Disclaimer: This document provides general information on legal topics only and nothing in this document constitutes legal advice.
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Attorney at Law, Senior Committee Member of Assembly of Southern Lawyers