Uphill battle for any oxygen lawsuit

Deaths that can be directly linked to the shortage of bulk oxygen at some public hospitals two weeks ago are grounds for legal action against Jamaican health authorities, legal experts have suggested.

The lawsuits could be filed against the State and the hospitals where the deaths occurred, with families seeking damages for negligence and breach of statutory duty, according to several attorneys who spoke to The Gleaner.

But proving that health authorities were negligent in their handling of the medical-grade oxygen shortage and that this directly resulted in deaths will present numerous legal hurdles for prospective litigants, they acknowledged.

“The challenge here would be to demonstrate that the Government failed in its obligation to put systems in place to ensure that sufficient supply of oxygen would have been available in the context of the easily anticipated high demand,” said Matondo Mukulu, an attorney based in the United Kingdom (UK).

The answer to this, says Mukulu, a former acting Public Defender in Jamaica, will require an “interrogation” of the written communication between Industrial Gases Limited (IGL) – the sole supplier of medical-grade oxygen to hospitals in Jamaica – and the Ministry of Health and Wellness “and what the minister knew about projected demand”.

A review conducted on May 30 this year projected that a third wave of COVID-19 infections could result in over 10,000 confirmed cases in the peak week and over 180 deaths in the week following the peak, Health Minister Dr Christopher Tufton disclosed in a statement on September 2.

He was responding to Peter Graham, managing director of IGL, who used a public statement the previous day to reveal that his company had not received from health authorities a forecast of the requirement for medical oxygen despite repeated requests.

Graham noted, too, that demand for medical oxygen had escalated locally as infection rates soared and “exceeded the output [capacity] of the local manufacturing plant”.

NOT AN ACT OF GOD

Health authorities and hospital administrators have a duty to plan properly and to ensure that there are sufficient supplies of oxygen, said one senior attorney, while acknowledging that a potential lawsuit must provide evidence of a direct link between the deaths and the oxygen shortage.

“This was not an act of God,” said the attorney, who did not want to be named.

“This is something that if you plan for properly, you can have.”

Anthony Williams, an attorney who specialises in medical malpractice cases, said as part of the duty of care owed to patients, hospital administrators are required to assess their patient population and their stock of oxygen.

They would also need to take into consideration, Williams said, the current escalation of COVID-19 infections.

“In light of that duty of care, we have to ask the question: At what point did they take stock? And when they took stock, having regard to the patient load at that time, was the oxygen supply enough to deal with the patients?” he questioned.

“And they also have to balance that with the fact that more patients would come in. So, is it that you wait until you run out then you order? If that is the case, then it can be argued that a proper duty of care was not discharged.”

FAMILY CONTEMPLATING LAWSUIT

At least eight deaths, including a pregnant woman, have been blamed on the shortage of medical oxygen on the weekend of August 28 at some public hospitals, which was triggered by an explosion of COVID-19 infections in Jamaica, an investigation by The Gleaner has revealed.

The family of a woman who died at a public hospital in the eastern end of the island is now awaiting the result of a post-mortem exam to determine whether they will file a lawsuit against the State.

The woman, who was admitted to hospital on August 27 with an illness unrelated to COVID, died the following day, according to a spokesperson for the family.

The family did not want her name published but claimed that she died because the hospital ran out of oxygen.

“We were told that dem no have no oxygen,” said the spokesperson, who did not want to be named.

“She never get none. We are not putting any causal relationship between them. We just know we were told they had none.”

The spokesperson said the family has been advised to pursue a lawsuit but is waiting on the autopsy that will reveal the cause of death, “then we will talk to a lawyer to find out what is the next step in this process”.

NO SUCH REPORT

However, Errol Greene, regional director for South East Regional Health Authority (SERHA), told The Gleaner that he has not seen any report that a patient died at the hospital because of a lack of oxygen.

Green also disputed claims that the hospital ran out of oxygen over the weekend of August 27-29 when supplies of the life-saving gas ran low at most public hospitals.

The hospital where the woman died is managed by SERHA.

“I can say without fear of contradiction that no report of any deaths as a [direct] result has reached my desk,” Greene said.

“I am not saying that it might not have happened, but I have not seen any such reports of any deaths directly relating to low oxygen.”

One of the toughest challenges for potential litigants, according to the senior attorney who spoke to The Gleaner, is proving that their loved ones died “because they couldn’t get oxygen”.

“So you need to prove, for example, that the person did not have a heart attack, or it’s not that the person had liver and kidney failure. That’s the hardest part,” the lawyer pointed out.

This task, the attorney charged, becomes even more difficult because of the unwillingness of doctors in Jamaica to give evidence against their colleagues.

“Lawyers regularly testify against other lawyers and get them disbarred,” the attorney said.

“But doctors don’t testify against doctors, and that is the biggest challenge here.”

President of the Medical Association of Jamaica Dr Andrew Manning declined to comment on the assertion.

livern.barrett@gleanerjm.com