Bahamas Patient Advocacy

A Response to Alesha Hart on the 'Deafening National Silence'

(This letter by Leandra Esfakis was published in the Tribune recently in response to an article by Alesha Hart complaining about public indifference to the victims of crime.)

Dear Ms Hart:

Your article of last week speaks eloquently of the deafening national silence. You say that by our silence, and failure to attend the candlelight ceremony on June 15, to honour the victims of crime, we disrespected the memory of fallen victims and tomorrow's victims as well.

A candlelight ceremony is a symbol of sorrow, respect, and hope  - for an effective response to the issues which create victims of crime. And poor attendance would indicate that perhaps we as a people are not caring enough to step outside our comfort zones, and honour those who have fallen.

I do believe, however, that we are caring. But what do we care about? And do we have the conviction and courage to defend what we should care about - at least our lives?  Or is that we have no expectation of a better tomorrow, because we know that we put into positions of power, persons who are no more than a reflection our own weaknesses, and when tested are unable to rise above those weaknesses. 

And so I would like to offer an answer to the last haunting question you raised: "I wonder who will speak clearly if something happens to me?"

Watching out for the Watchdog—the Coroner's Court in the Bahamas 100 Years on

 Over the eight centuries since the office was established in England, the role of  coroner has evolved from tax collection to an independent judicial office that investigates sudden, violent or unnatural deaths.

In 1988 the British changed the coroner's act so that no criminal charges could result as a consequence of evidence produced at an inquest. However, the notable case of Dr. Harold Shipman (who was convicted of murdering 15 patients) led to three public inquiries that forced a review of this law.

But in the Bahamas there has been no review, no amendments, and no regulations or rules made under our coroner's act since it was passed in 1909.

And how well does that century-old law enable our coroner to meet the changing needs of a rapidly developing society, and provide service to the public in general, and the bereaved in particular?

When is a hospital, a Hospital?

The 2007 annual report of the Hospitals Board tabled in Parliament last December raises some important public interest issues.                           

One of those issues is whether the Hospitals Board has the ability to function as a regulator of private hospitals and clinics under the Hospital and Health Care Facilities Act, 1998.

For example, the Hospitals Board has a duty under the Act to investigate a complaint into the “management, diagnosis, and treatment” of a patient in a hospital or clinic licensed by the Hospitals Board.

But it seems the Hospitals Board’s view is that it licenses the building and its facilities, and not the quality of health care services provided.   The Act itself defines a hospital as "a building where beds are available for the admission of persons requiring treatment for any sickness”.

Experts say this description is not adequate. It does not require a central legal entity that is responsible and accountable for all medical services provided under its roof. That structure, according to advisors, would be in the best interest of the community for the obvious reasons of safety and ethics. There is a disconnect here which can adversely affect quality assurance in medical treatment.   

Transcript of Chief Justice's Ruling in Dr James Iferenta v Coroner William Campbell

The coroner's court is neither a civil nor a criminal court, and the rules of procedure for those courts do not apply. The coroner's court is an inquiry into the circumstances of a death, and not an adversarial proceeding. The coroner's court is a court of record, and those records are public.

Legal authorities indicate that the coroner has discretion in determining what verdicts are to be left to the jury. There is no obligation on the coroner to put every possible verdict before the jury - only those  supported by the main thrust of the evidence.  According to one senior lawyer, the coroner is the alpha and omega of the coroner's court.

Judicial review of an inquest is generally applied for because one party thinks other verdicts should have been left to the jury, and/or that the verdict reached was not a reasonable one given the evidence.

Legal authorities also indicate that on an application for judicial review of an inquest, the judge would examine the evidence given at the inquest and determine whether it supported the verdict given, or specify what other verdicts - supported by the evidence - ought to have been left to the jury, and give his reasons.   

In the application for judicial review of the Esfakis inquest by Dr. James Iferenta, the Chief Justice did not review any evidence. The Chief Justice made a determination of principle that the coroner could not leave a single verdict to the jury.

This is a precedent which now binds the coroner's court. The effect is that in every future inquest the coroner will be obliged to leave more than one verdict to the jury.

As of the end of November, 2008 the chief justice had given no written reasons for his ruling, and had not signed the order quashing the Esfakis inquest. What follows is a transcript of the unsigned ruling:

"The applicants in this case were given leave to move for judicial review by way of an order of certiorari quashing the summing-up and/or direction given by the coroner to a jury which returned a verdict, which verdict is in the prescribed form under the Coroner's Act, Chapter 56.

The challenge as framed and advanced by counsel for the Applicants raised a number of issues which would have invited the court's consideration and considered determination thereof, save for the fact which starkly appears from the record that after this extensive hearing involving a large number of witnesses over several adjournments as indicated in the juror's inquisition, the Coroner began his directions to the jury in this manner:

Advice on Patients Rights and Medical Care

This website aims to inform patients of their rights, and urge them to be alert and pro-active in their health care. We welcome constructive comments alerting readers to medical issues in the Bahamas or elsewhere.

However, we cannot accept comments that would raise issues of libel against any individual. The only defense to libel is to prove the truth of the comment made. This could result in a court action, and expert witnesses would have to attend to give evidence as to the truth of the comment.

Petition on Accountability in Bahamian Healthcare

Do you believe that Bahamian healthcare services and patient survival rates can be improved?

Then join in sending the message to our government, that the Hospitals and HealthCare Facilities Board needs to do its job or be replaced by a truly independent and impartial healthcare commission that will protect the interests and lives of the Bahamian people.

You can sign the petition online here www.petitiononline.com/lesfakis/petition-sign.html?

A Similar Coroner's Verdict in the UK—With a Very Different Response

A British coroner ruled recently that  a nurse's death from massive bleeding after she gave birth by caesarean in her own hospital resulted from neglect and failings in the maternity unit.

Last month, the coroner recorded that the woman's death three years ago was "contributed by neglect" and there had been "ongoing failures" in her maternity care at Northwick Park Hospital in London.

Her death was the tenth at the hospital's maternity unit in three years, and has led to an investigation by the NHS watchdog, the Healthcare Commission.

A Summary of the Esfakis Case

Christopher Esfakis, 42, was the son of the late Dr Andrew Esfakis, a leading Nassau doctor of Greek descent, and Violet Esfakis, a nurse.

On Saturday, April 20 2002 he admitted himself to Doctors Hospital, suffering from burns to 25 per cent of his body due to a household accident. He walked into the emergency room without any physical assistance.

He was assessed as having sustained an inhalation injury and a treatment programme was put in place by Dr. James Iferenta, his primary care physician. Mr Esfakis' chances of survival and full recovery were put at over 90 per cent.

Sixty-six hours later he was dead. The pathologist noted the cause of death as a) cardio-respiratory arrest, acute pulmonary congestion and edema; and b) airway obstruction due to inhalation injury. His body weight at the time of death was 190 pounds due to excessive fluid intake. When he was admitted he weighed 130 pounds.

Magistrate William Campbell presided over an inquest into Esfakis' death which began in April 2007. About 20 witnesses gave evidence, and the magistrate's verdict was delivered on February 29 2008. The verdict listed the cause of death as "natural causes with a substantive contribution of neglect."

In April 2005 the deceased's sister, lawyer Leandra Esfakis, filed a complaint with the Healthcare Facilities Board. which licenses local hospitals.

The complaint has been ignored under three successive ministers of health, although the law provides that:

1. The Board can select experts to investigate a complaint.
2. The experts report back to the Board.
3. The Board can made recommendations to the Hospital on what it need to do in order to renew its license.

In May, 2008 Ms Esfakis filed a complaint with the Bahamas Medical Council, which governs local doctors.

A civil lawsuit is also pending against Doctors Hospital. 

Transcript of Coroner's Verdict into Death of Christopher Esfakis at Doctors Hospital

The following is an unedited transcript of the Coroner's verdict delivered on February 29, 2008 at the conclusion of an inquest into the death of Christopher Esfakis at Doctors Hospital in April 2002. The final wording of the ruling is expected to be available in the near future.

THE COURT:
At this point it is my responsibility to sum up and give you directions on the verdict or verdicts to be arrived at.

I should say -- okay, I have my directions which I'll read and it would be clear as to the procedure. All the evidence is now completed. Throughout this inquest, the law has been my area of responsibility, and I must now give I directions as to the law which applies in this case. These directions of the law must be followed.

There are cases in which the state of the evidence is such that it is possible that there could be, that there would be different views on the verdict as to the cause of death to be arrived at, and in those kinds of cases I would, after giving you legal directions, leave a number of verdicts that properly arise on the facts for you to decide on the appropriate verdict. To decide on the proper verdict in a case in which there is different advice, in those situations the jurors have the responsibility to decide on the proper verdict.

There are other cases, however, where if in my view as Coroner, the facts in evidence point in one direction, only point towards one verdict and no other, then I am bound to direct that you arrived at that verdict.

I have thought about their case and the more I did the summing up the more I came to the view that it is one such case that the appropriate verdict as to the cause of death; that is, how and after what manner Mr. Christopher Esfakis died, and for which I must direct that you arrive at, is as follows:

The Healthcare Legal Environment in The Bahamas

by Leandra Esfakis

Does the Bahamian patient have a bill of rights? The answer is 'yes', and, it comes in two forms:

1. Rights established by the common law, that give recourse to the courts.
2. Rights established by statute, and administered by a government or a professional board.

The more pertinent question is: how accessible, and how effective are these rights? Does pursing a remedy in the current legal environment result in an improved delivery of health care services? And if not, what can be done to improve performance and results?