Dail Crawford v Medical Board of Saint Christopher and Nevis, The Medical Chief of Staff of The Joseph Nathaniel France General Hospital and The Attorney General of Christopher and Nevis

• Jurisdiction: Saint Kitts and Nevis
• Judge: Ventose, J.
• Judgment Date: 11 March 2019
• Neutral Citation: KN 2019 HC 18
• Docket Number: CLAIM NO. SKBHCV2017/0169
• Date: 11 March 2019
• Court: High Court (Saint Kitts and Nevis)

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Ventose, J.

CLAIM NO. SKBHCV2017/0169

IN THE MATTER of the Medical Act CAP 9.15 of the Laws of the Federation of St. Christopher and Nevis

and

IN THE MATTER of the Institution Based Health Services (Management) Regulations No. 26 of 2002

And

IN THE MATTER of an Application for Declaratory and Other Reliefs by Dr. Crawford M.D. pursuant to Section 24 of the Eastern Caribbean Supreme Court (Saint Christopher and Nevis) Act and Rule 56.1(b), 56.1(4)(a) of the CPR, 2000 as Amended

Between:

Dail Crawford

Claimant

and

1. Medical Board of Saint Christopher and Nevis

2. The Medical Chief of Staff of The Joseph Nathaniel France General Hospital

The Attorney General of Christopher and Nevis

Defendants

Appearances:

Mr. Perry Joseph for the Claimant

Mrs. Simone Bullen Thompson, Solicitor General, with Mrs. Tashna Powell Williams for the Defendants

Judicial Review - Application for judicial review of the decision of the second defendant to suspend the claimant from operating room privileges as an OB/GYN and from all privileges of and as an independent medical practitioner in Saint Christopher and Nevis — Whether the second defendant made any of the decisions about which the applicant complains — Whether the first defendant ratified or upheld any decision of the second defendant and whether in so doing the first defendant acted contrary to sections 17 and 18 of the medical Act — Whether in the alternative the Executive Management Committee or the Ministry breached the claimant's right to natural justice — Whether the first Defendants failure to hold a disciplinary hearing under section 17 of the Medical Act to provide the claimant with an opportunity to be heard under section 18 of the Medical Act is unlawful — Whether the second defendant breached Regulations 5 and 55 of the IBHS (M) Regulations — Whether the claimant is entitled to a declaration that he meets the fit and proper criteria for privileges as an OB/GYN in Saint Christopher an Nevis and operating room privileges at the Hospital.

Ventose, J.

1 The Claimant is a medical doctor, having graduated in 2006 with a degree in general medicine from the Rector of the Higher Institute of Medical Sciences of Camaguey, Cuba, and graduated in 2011 with another degree from the Rector of the Latin American School in Cuba with a specialization in the field of gynecology and obstetrics (OB/GYN). The Claimant applied for and was duly registered on 4 August 2006 as a general practitioner by the Medical Board of Saint Christopher and Nevis (the “ Medical Board”).

2 In December 2011, the Claimant commenced working for the Government of Saint Christopher and Nevis as a Specialist OB/GYN at the Joseph N. France General Hospital (the “ Hospital”). On completion of his period of observation or orientation, the Claimant was granted permission to practice independently and applied for and was granted, in March 2012, permission to use the Hospital's facilities for his private patients. This permission to use the Hospital to treat patients by either medical practitioners employed in the public service or those in the private sector is known as “privileges”. The evidence indicates that the usual practice is that medical practitioners who wish to use the Hospital's facilities apply for permission from the Ministry of Health (the “ Ministry”). Once the Ministry receives a request it is sent to the Executive Management Committee (the “ EMC”) for its review and recommendation. The EMC then meets with the medical practitioner to determine how best to accommodate the request for access to the Hospital's facilities and to discuss the expectations, if the privilege is granted. The EMC then sends its recommendation to the Permanent Secretary in the Ministry (the “ Permanent Secretary”). The Ministry makes the final decision on whether to grant or refuse permission or the “privilege” to use the facilities at the Hospital. The Permanent Secretary usually sends a formal letter to the medical practitioner who made the request indicating whether or not the privilege is granted, and if so, setting out the scheduling accommodations that have been made and the conditions of use. This process is considered necessary because of the Hospital's limited resources and the need to coordinate the work of many medical practitioners and medical staff.

3 In or around 2013, complaints were being made about the standard of care and competence of the Claimant in respect of his medical and surgical treatment of patients at the Hospital and in respect of those in his private practice. Some of these complaints were outlined at a meeting of the EMC on 21 June 2013 that was called to discuss “patient management care” with the Claimant (the “ EMC Meeting”). At the meeting, the cases of concern were outlined by the Medical Chief of Staff (the “ MCS”). It is not necessary to provide the details of each case except that they related to what the EMC determined to be the Claimant's lack of the standard of care required for diagnosis, surgical procedure and post-operative treatment of his patients. The MCS in his affidavit provides the details of the cases that were discussed at the EMC Meeting and these cases are together known as the “ 2013 Cases”.

4 The decisions of the EMC taken at the EMC Meeting were as follows. First, the Claimant was to be placed on a six-month period of observation and evaluation. Second, the Claimant was not allowed to book any intra-abdominal invasive procedures on his own, for example c-sections, hysterectomies and myomectomies during that period. It was determined that these were the areas in which the Claimant needed assistance to improve his technical skills. In the interim, these procedures were to be conducted by Dr. Ruben Coca with the Claimant assisting him to improve any technical deficiencies he might have. Third, the Claimant was mandated to attend Wednesday morning continuing medical education sessions to assist him in improving his clinical decision-making skills. The notes of the meeting revealed that the Claimant stated that: (1) there were shortcomings (presumably in his patient care and surgical procedures); (2) he wanted to do his best; and (3) he needed the help of others to enable him to improve. However, in his affidavit in support of his application for judicial review the Claimant avers there are no deficiencies or professional misconduct in his handling of the 2013 Cases.

5 The MCS wrote to the Claimant on 24 June 2013 reiterating the findings made above. The Claimant resumed independent practice after Dr. Coca informed the MCS on 22 December 2013 that the Claimant was fit to practice independently. However, there were further complaints concerning the diagnosis, medical and surgical treatment of patients by the Claimant, which are documented in the affidavit of MCS (see [20]–[24]). The MCS on 25 June 2014 wrote to the Permanent Secretary in respect of the clinical management of the Claimant and to inform him about a complication involving one of the Claimant's patients. Again on 25 July 2014, the MCS wrote to the Permanent Secretary in relation to a letter received by the MCS from an attorney-at-law dated 21 July 2014 in relation to the surgical treatment of a patient by the Claimant to remove that patient's ovarian cyst. The MCS in an undated letter to the Claimant informed him that on 3 September 2014 the MCS had to operate on a patient on whom the Claimant had performed an abdominal operation on 4 February 2014. The MCS informed the Claimant there was no documentation in respect of the Claimant's surgical findings and the Claimant was reminded that it was an expectation of any surgeon performing surgery properly to document his or her surgical findings. The Claimant was informed that he must provide the documentation in respect of that patient, and that a failure to do so will result in the suspension of his privileges to use the operating theatre. The Claimant replied to the MCS on 29 September 2014 questioning whether this action was the usual consequence of a failure to document clinical findings, adding that he looked forward to any constructive criticism, as they would serve to enhance his professional skills as a young surgeon.

6 On 10 September 2014, the Claimant was sent a notice by memorandum from the MCS to attend a meeting in the Hospital's conference room on 12 September 2014 to address “a recent case of pseudocyesis… and a few other matters” that were brought to the MCS's attention by the nursing staff. At the meeting called by the MCS that took place on 12 September 2014 (the “ MCS Meeting”) additional cases were discussed, as documented in the affidavit of the MCS (at [26]–[28]). At the MCS Meeting, the MCS decided to suspend immediately the Claimant's privileges as an independent specialist working at the Hospital pending further word from the Permanent Secretary and input from the Medical Board. On 12 September 2014, the MCS wrote to the Permanent Secretary outlining what transpired at the MCS Meeting. It is of interest to note that the MCS states that the following persons were present at the meeting: Assistant Matron, Ms. Adams, maternity nursing staff, the Claimant, Dr. Coca and Dr. Jeffers. The importance of this will be explored fully later in this judgment. In that letter, the MCS states that the Ministry “had an obligation to protect the public and deliver the highest possible health care in a safe environment”. The Permanent Secretary replied to the MCS on 15 September 2014 and “in the interest of the general public” agreed with the decision taken by the MCS, noting that he would bring the matter to the attention of the Minister of Health. Complaints continued in relation to the diagnosis, medical and surgical treatment of patients by the Claimant and these are further documented in the affidavit of the MCS (at [38]–[43]).

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