The University Hospital of the West Indies

The University Hospital of the West Indies (UHWI) started life as the University College Hospital of the West Indies (UCHWI). Its existence was heralded by the laying of the foundation stone in 1949 by the Earl of Athlone, the husband of Princess Alice, the first Chancellor of the University College of the West Indies, the forerunner of the University of the West Indies –the UWI. A hospital was necessary for the training of medical and other health care professionals and the provision of health services.
When the University College of the West Indies obtained its Charter in 1967 it was thereupon granted full university status, the name of the hospital was changed to the University Hospital of the West Indies, as it is known today. The UHWI has historically been associated with the University of the West Indies (UWI)
Today the UHWI prides itself as an internationally recognized academic institution with 579 beds and a facility which provides clinical training for health care professionals. Its establishment has been placed on stable footing by the University Hospital Act. Section 3 provides:
be known as the University Hospital; and

“3. There shall be established at Mona in the parish of St. Andrew a

teaching hospital which from and after the 16th February, 1967,

shall –

be capable of providing accommodation for patients and facilities for the instruction of medical students.”

The UHWI is today governed by an 18-member Board comprised of individuals elected from the Council of the UWI; individuals appointed by the Minister of Health; individuals holding senior posts in the University; and the Financial Secretary.

The Media Disclosure

In and around mid October 2015 the media ran a story detailing what it described as a “Mystery bug killing babies at the UHWI!” It was a report about the death of new-born preterm babies at the hospital. Hospital management shielded away from the media, while Ministry of Health officials all “declined to comment”. The practical effect of this recalcitrance on the part of officialdom was to give the story, proverbial legs. It took off, and stormed through the media.

By the time the Minister of Health decided to call an emergency meeting on Saturday 17th October 2015, with top medical experts and Ministry officials, the story had ballooned to the point where various media entities were headlining it as a major “disease out-break”. The media reports were by then carrying different figures for the amount of new-born preterm deaths, and naming other hospital(s) at which similar deaths from the out-break were supposed to have occurred.

For several days, stories of the dead babies at hospitals dominated all media houses in the country. And the issue became a national topic.

At least two parents attended upon the Office of the Public Defender initially. Eventually a couple who had a preterm baby who died also turned up. In due course they all indicated that they are pursuing the matters with their private attorneys-at-law.

The deaths of this alleged unusually large number of premature babies attracted the Public Defender’s attention and an investigation was launched.
The Public Defender is a Commission of Parliament established under section 4 of the Public Defender (Interim) Act 2000, for the purpose of protecting and enforcing the rights of citizens.
Under section 13 of the Act, the Public Defender shall investigate any action taken where she is of the opinion–
that any person or body of persons—

JURISDICTION OF THE PUBLIC DEFENDER

has sustained injustice as a result of any action taken by an authority or an officer or member of such authority, in the exercise of the administrative functions of that authority;

or

(ii) has suffered, is suffering or is likely to suffer an infringement of his constitutional rights as a result of any action taken by an authority or anofficer or member of that authority;

“Authority” is defined in section 2 of the Act to mean inter alia, a Ministry, department or an agency of Government.

It cannot be gainsaid that the UHWI and its Neonatal Department constitute an “Authority” within the meaning of the Public Defender (Interim) Act. Similarly it is undeniable that the allegations raised with respect to the events at that hospital, if true, would support a prima facie case of injustice sustained by these parents, and indeed the preterm newborns.

Notwithstanding these provisions of the Public Defender (Interim) Act Learned Counsel for the parties as he was entitled to do gave notice of his intention to challenge the jurisdiction of the Public Defender as a preliminary point.
Consistent with his earlier notice on or about November 6 2015 Counsel advanced submissions that the Public Defender had no jurisdiction to investigate the matter of the deaths of the preterm babies.

THE PRELIMINARY POINT

A timetable for the filing of submissions on the preliminary point, was agreed and a period allowed for the Public Defender’s response.

The heart of the jurisdictional contention was whether or not the Public Defender has authority to commence or carry on this investigation which she had launched. Learned Counsel contended that the allegations made were akin to professional negligence against the UHWI. Learned Counsel argued that medical practitioners serving in the Neonatal Intensive Care Unit are agents of the hospital and allegations swirling in the media could form the basis for a claim against the hospital in common law in the tort of negligence.

Learned Counsel in bolstering his argument pointed to the content of the summonses which had been served. He opined that the summonses solicited information that was aimed at finding out whether there was any breach in ethical standards, cleaning regimes, infection control practices, professional care and standards in the management and handling of the deceased preterm babies and related matters.

In short, the submission was that the questions to which the Public Defender sought answers to could found a claim in negligence in our courts and that there was remedy available in our courts to any aggrieved party. So argued Learned Counsel.

Learned Counsel was constrained to take the point, because by November 4-6, 2015 he had received four letters of demand from parents of the deceased preterm babies who had retained attorneys-at-law to pursue claims in court seeking damages as the primary remedy on behalf of the estates. The letters contained ultimata for settlement within a 14 day period otherwise claims would be filed.

The heads of damages identified in some of the letters included the cost of cremation, damages for loss of expectation of life, damages for the lost years, damages for pain and suffering, mental distress, the cost of ongoing counselling and for psychiatric injuries suffered by the parents.
The crux of the matter according to Counsel is that the Public Defender is governed by section 13 of the Public Defender (Interim) Act 2000 which defines the types of actions which the Public Defender is by law permitted to investigate.

Counsel posited the view that section 13 (1)(a)(i) of the Act precluded the Public Defender from embarking upon this investigation. That provision states:

“Subject to this section, the Public Defender shall investigate any action taken where he is of the opinion that any person or body of persons has sustained injustice as a result of any action taken by an authority or an officer or member of such authority, in the exercise of the administrative functions of that authority.”

In further advancing this argument Learned Counsel pointed to the limitation of the Public Defender’s authority enumerated in section 13(2)(a) namely:

“…the Public Defender shall not investigate any action referred to in subsection (1)(a)(i) in respect of which the complainant has or had a remedy by way of proceedings in any court …”

The above provisions is further amplified by section 13 (3) where the enabling Act allows the Public Defender to continue the investigation where the Public Defender is satisfied that:

“… in the particular circumstances it is not reasonable to expect the complainant to take or have taken proceedings.”

It was also contended that public hearings and reporting would prejudice civil proceedings were UHWI to be made a defendant. Counsel submitted that the

UHWI would find itself in a position where it was being called upon to answer in two different jurisdictions, namely to the Public Defender and to the courts.

Learned Counsel relied on authorities from the United Kingdom and a decision from the Court of Appeal of Trinidad & Tobago, in support of these submissions.

The first authority to which Learned Counsel averted was R v Commissioner of Local Administration, ex. p. Croydon London B.C. [1989] 1 ER 1033. In that case the Queen’s Bench Division was adjudicating on a judicial review application brought by Croydon Borough Council of London, challenging the local Commissioner’s decision to hear and determine a complaint of maladministration alleged by a parent, against the Education Appeals Committee.

One of the two grounds on which the Local Commissioner’s decision was challenged, was jurisdiction. Croydon Borough Council’s contention was that his report and all findings therein, were void and of no legal effect, because the Local Commissioner of Administration had no jurisdiction to have embarked upon the investigation into the complaint made by the parent.

The statutory provision in ex.p. Croydon London B.C. was section 26 of the Local Government Act 1974 (UK). Portions of sub-section (6) bear some similarity to section 13 (2)(a) of the Public Defender (Interim) Act., in that the words “remedy by way of proceedings in any court” appear in both provisions. In so far as is relevant, sub section (6) of section 26 of the UK statute provides:-

“(1) … (5)”

“(6) A Local Commissioner shall not conduct an investigation under this Part of this Act in respect of any of the following matters, that is to say, – (a) any action in respect of which the person aggrieved has or had a right of appeal, reference or review to or before a tribunal constituted by or under any enactment; (b) any action in respect of which the person aggrieved has or had a right of appeal to a Minister of the Crown; or (c) any action in respect of which the person aggrieved has or had a remedy by way of proceedings in any court of law: Provided that a Local Commissioner may conduct an investigation notwithstanding the existence of such a right or remedy if satisfied that in the particular circumstances it is not reasonable to expect the person aggrieved to resort of have resorted to it…”

In deliberating on the jurisdiction point taken, the court had to grapple with, inter alia the meaning of the words“remedy by way of proceedings in any court of law”, as they are used in the provision. Having considered the submissions from both sides of the issue, the court took the view that, once the complaint was justified and the person was entitled to some form of remedy, provided the proceedings were brought within the appropriate time, the commissioner is not at concerned with the merits, demerits or prospect of success of the complainant’s matter; the commissioner needs only be satisfied that the court of law is an appropriate forum Woolf L.J. puts it this at page.1043:-

“In my view, when sub-s (6) is looked at as a whole, it is reasonably clear that what is being dealt with is a situation where if the complaint was justified the person concerned might be entitled to obtain some form of remedy in respect of the subject matter of the complaint if he had commenced proceedings within the appropriate time limits. The commissioner is not concerned to consider whether in fact the proceedings would succeed. He merely has to be satisfied that the court of law is an appropriate forum for investigating the subject matter of the complaint.”

And later, he made the following notable observation:-

“The other important feature to observe with regard to S.26(6) is that it is not clear from its language whether it is only a threshold requirement or whether is applied at any stage of an investigation.”

Lord Woolf went on to explain that whether section 26(6) pointed to a threshold requirement or not, is insignificant, because of the commissioner’s continuing discretion to continue or discontinue an investigation, under section 26(10). The UK’s section 26(10) which vests the discretion in the commissioner to continue or discontinue an investigation, contains restriction that our equivalent does not. The Jamaican equivalent vesting the discretion is section 15(2) of the Public Defender Interim Act.

In delivering the Court’s pronouncement on the jurisdiction point, Woolf L.J. said at pages 1043 – 1044:

“Section 26(6) makes it clear that where there is a remedy in the sense which I have indicated, inter alia, in a court of law, the courts do not have the sole jurisdiction and the commissioner may still intervene. On the other hand the general tenor of s. 26(6) is that, if there is a tribunal (whether it be an appeal tribunal, a minister of the Crown or a court of law) which is specifically designed to deal with the issue, that is the body to whom the complainant should normally resort. I suggest this approach is particularly important in the case of issues which are capable of being resolved on judicial review.”

In the final analysis, the authority of ex.p. Croydon London B.C. cited by learned counsel does not support the proposition that the facts available to the Public Defender in instant case, precludes her by virtue of the operation of section 13(2)(a), from investigating the matter. What that authority does is to confirm that, on the facts, the Public Defender has the discretion to investigate, even though there is a remedy of civil action open to the persons concerned.

Lord Justice Woolf’s dictum that the courts do not have sole jurisdiction and the commissioner may still intervene, is in consonance with section15(2) of the Public Defender Interim Act, which provides, in so far as is relevant, that:-

“The Public Defender may, in his absolute discretion, determine whether to undertake or continue an investigation…”

Learned Counsel also referred to R v Commission for Local Administration (The Local Government Ombudsman) and London Borough of Hillingdon (2004) EWCA CIV 1407. This authority does not assist the cause. In that case the complaint was one in which the local government ombudsman (the LGO) was effectively being asked to investigate the consequences of a decision made by a local education appeal tribunal.

The complaining parent was dissatisfied with a decision by the local education authority in placing her special needs child in a particular school. Exercising her right of appeal, the parent appealed that decision to the Appeal Committee. The Appeal Committee upheld the decision of the local authority. So that parent complained to the LGO, having gone through these tiers of adjudication.

Again the question there was one of jurisdiction: whether section 26 (6) of the Local Government Act vests jurisdiction in the LGO to investigate such a matter. The Court of Appeal quite rightly rejected the contention that the LGO had jurisdiction in that particular case. Bean LJ with whom Aikens and Moore-Bick, JJA agreed said:-
On the facts alone, this case is distinguishable from the instant matter. Here there is no decision existing, neither is there any decision which the Public Defender is investigating or could possibly think of investigating.

“I reject the submission that the LGO has jurisdiction to investigate the consequences of a decision if investigation of the decision is itself excluded by S.26 (6).”

Then there was the case of Miller v Parliamentary & Health Service Ombudsman (2005) EWHC 2981. This case is not dissimilar to the matter now before the Public Defender. Miller was a judicial review matter, brought by the claimants Dr. Miller and Dr. Howarth. In those proceedings the two doctors challenged the report of the Parliamentary & Health Service Commissioner (“The Ombudsman”) on several grounds, one such ground was jurisdiction.

The enabling statute in that case was the Health Service Commissioners Act 1993 (UK). Section 4 of that Act expressly outlines the boundaries of the ombudsman’s jurisdiction when there is the availability of other remedy. Sub-section (1)(b) provides that the Ombudsman shall not conduct an investigation in respect of action in relation to which the person aggrieved has or had a remedy in any court of law. Much the same was as our section 13(2)(a) provides with respect to the Public Defender. The UK Act carries the rider that “Unless the Commissioner is satisfied that in the particular circumstance it is not reasonable to expect the person to resort of have resorted to (that remedy in court). In our Act this rider is contained section 13(3)(a).

The court held that the Ombudsman had jurisdiction. The Ombudsman’s remit was to investigate complaints about injustice the court said, and the Ombudsman had a wide discretion as how to go about it.

As it relates to remedies, the complainants in Miller did not ask the Ombudsman for any financial or any pecuniary redress, much the same in the instant case where nobody has asked the Public Defender for any financial remedy. The terms of reference set out in the summons make absolutely no mention of any tangible remedy at all. In fact, by those terms, the alternative remedy in the form of a claim in negligence cannot provide or substitute, the possible outcome which the persons concerned with the death of these preterm babies, could be looking for.

Learned Counsel’s written submission with respect to the court’s reasoning in paragraphs (93) – (96) of Miller is rather interesting. At paragraph 12 of Learned Counsel’s written submission there appears:

“However, if the facts of that case were different in the sense that the complainant sought financial compensation, then a claim for damages in negligence in a court of law would clearly qualify as an alternative remedy. This would, by extension, preclude the Ombudsman jurisdiction on the basis that it would be reasonable to expect the complainant to pursue court proceedings in light of the remedy sought.”

This argument embodies two very telling features, firstly it is highly speculative. It seems more of an overly generous extrapolation of the court’s reasoning in paragraphs (93) – (96) of the judgement, than it is of a logical deduction. Secondly, it supports the very point that none of the terms of reference (as outlined in the summonses) makes any reference to, or points to any financial compensation, or for any damages to be paid to, or by, anybody or entity.

Milleris an authority which supports the position that the Public Defender, in the instant case of multiple deaths of preterm new-borns at the UHWI has jurisdiction to conduct an investigation into the circumstances of such deaths.
There appears to be running through Learned Counsel’s submission, both oral and written, a fundamental postulate that the Public Defender in undertaking an investigation under Section 13(1) of the Public Defender (Interim) Act, must proceed under, either sub-paragraph (a)(i) or sub-paragraph (a)(ii). If indeed this is learned counsel’s view with the greatest of respect, Learned Counsel is wrong. Sub-paragraph (a)(i) and sub-paragraph (a)(ii), do not create categories of jurisdictional exercise for the Public Defender, but they refer to the different possible legal foundation in which complaints can be based.

THE MISUNDERSTANDING

Some time has been spent on matters of jurisdiction, because almost every attorney-at-law who appears before the Public Defender takes a jurisdictional point. Secondly, others insist that the Public Defender of necessity must make an election as to whether she is proceeding under sub-section 13(a)(i) or sub-section 13(a)(ii). These sub-sections provide categories of complaints. The Public Defender does not have to choose nor does a complainant.
The recording of statements from parents who attended the Office of the Public Defender and complained about the death of their pre-term babies, became a part of the investigation which the Public Defender had previously launched.

THE INVESTIGATION

The Approach

In pursuance of the decision to investigative, the Public Defender by telephone invited Dr. Cecil White, the then Chief Executive Officer of the hospital (CEO) and the Chief of Medical Staff (CMS) at the time Professor Trevor McCartney to attend on her, they being persons who in her “opinion” are “able to give assistance in relation to the investigation” into the deaths of eight preterm babies at the University Hospital of the West Indies.

The Chief Executive Officer (CEO) on the advice of his attorneys-at-law responded immediately and by October 23 emailed the Public Defender documents in his possession which could throw some light on the issues raised in the media.

The CEO furnished the Public Defender with inter alia the following–
A report on the infection outbreak, dated October 18, 2015 prepared by the acting head of the Department of Child Health, Dr. Roxanne Melbourne

Report to the UHWI Board Chairman, dated October 22, 2015 prepared by Professor Trevor McCartney, Chief of Medical Staff

Undated narrative prepared on or around October 19 2015 by Professor Minerva Thame, Head of the Department of Child Health

Letter to Dr. Marion Bullock Ducasse, Chief Medical Officer, Ministry of Health with attachments and

A second letter to Dr. Marion Bullock Ducasse with attachments

The CEO agreed to meet with the Public Defender on Sunday October 25 at 3p.m. at the Office of the Public Defender at 22-24 Duke Street, Kingston in furtherance of the investigations. This was not to be and the meeting did not occur as the CEO at short notice explained that he was under some impediment.
Efforts at having an urgent conversation without the use of the formal summons having failed the Public Defender was required to use powers vested in her under section 17 of the Public Defender (Interim) Act 2000. The use of the summons removed the impediment. Otherwise, Dr. Cecil White of himself was highly co-operative at the onset and shared relevant information and documents with the Public Defender prior to the intended meeting.

Professor Trevor McCartney, Chief Medical Officer responded to the Public Defender’s enquiries without hesitation and unreservedly. There was no need to issue any summons for him and a mutual time agreed when he could attend on the Public Defender.

Summonses were issued to the CEO, and the then Chairman of the Board, Mr. Sterling Soares and placed in the hands of the Court Bailiff on October 27, 2015 with return days of November 3 and 5 2015.
The two summoned parties and their respective legal representatives found the return dates inconvenient and wanted more time for preparation. Finally, the parties and their legal representatives attended and dates for taking evidence on oath agreed.

Of note, is a fact that no complainant known to the Public Defender made any allegation against any specific medical practitioner or medical staff as having done or failed to do an act in the professional care and management of their deceased preterm babies.
Having obtained the documents, including copies of the policies, protocols and procedural manuals for the infection control and management of the hospital,

Methodology

the senior staff members previously mentioned, were interviewed and evidence recorded from them. They included: the then Chief of Medical Staff, Professor Trevor McCartney; the then Chief Executive Officer, Dr. Cecil White; and subsequently the Chairman of the Board of the UHWI at the time, Mr. Sterling Soares.

Of note is the fact that Mr. Sterling Soares and the Board he headed had been appointed only weeks before the publicity of this outbreak. Mr. Sterling himself made his first visit to the hospital, as Chairman, on the 14th October 2015. On Mr. Soares’ evidence, he received his letter of appointment the day before that visit.

When he attended before the Public Defender, Mr. Sterling Soares was accompanied by a medical team consisting of two senior members of the hospital staff.

The statements recorded from the parents were considered and factored in the entire proceedings.

The Office of the Public Defender maintained communication with the attorneys-at-law for the UHWI, for the production of various documents throughout the investigation. The attorneys-at-law responded with promptitude and were effective and co-operative.
It bears note, that of the witness connected to the UHWI, Professor Trevor McCartney, and Dr. Cecil White were at the time of their testimonies before the Public Defender in November 2015, no longer on the hospital’s staff. Both gentlemen had severed their association with the UHWI at the end of October 2015. As was stated the severance of ties with the hospital, had nothing to do with the Public Defender’s decision to investigate the alleged occurrences at that institution.

THE EVIDENCE

Witnesses

Professor Trevor McCartney is a highly respected veteran registered medical practitioner. He was registered in July 1976, and has practiced and lectured in Medicine since then. He is a vascular surgeon who has, over his four decades of service, worked at Kingston Public Hospital; Spanish Town Hospital; the UHWI; and at the Bustamante Children Hospital as a Consultant Paediatric Surgeon.

The Public Defender accepts the witnesses as experts in their respective fields with requisite professional qualifications and experience, and are witnesses of truth.

The mothers (and other parents) who gave statements were regarded as witnesses of truth. For reasons of confidentiality, their names have not been disclosed in this report.
The infectious disease was Serratia marcescens, a known bacterium. It occurred in the Special Care Nursery, and was identified in June 2015. By the 12th June 2015, three cases were identified in babies. All three preterm babies were in the Neonatal Intensive Care Unit and were beside each other. A fourth case was identified on the 15th June 2015. All four babies were premature and grossly underweight. Unfortunately one of them died.

The “Outbreak”

In a letter dated 25th June 2015, Dr. Mathias Antione, Consultant Paediatrician and Head of Department of Child Health, brought to the attention of the Medical Chief of Staff, Professor Trevor McCartney, the fact of this outbreak. Dr. Antoine’s letter noted that the outbreak was the third episode in four years. According to Dr. Antoine, the previous two occurred in October 2011 and in December 2013. In the words of Dr. Antoine, all three outbreaks resulted in deaths of infants.

The evidence from Professor McCartney was that these incidents would not have been recorded “because they were not Class 1 or Class 2 reportable organisms.” He explained that Class 1 and Class 2 are infections like malaria, dengue fever, or chick-v. According to Professor McCartney, he had no knowledge of any requirement as was being suggested by Dr. Reid-Jones. That requirement Professor McCartney testified, was applicable to Class1 and Class 2 infections.

As gleaned from the evidence, the position of Professor. McCartney on the point is essentially this: there was no requirement on the Neonatal Unit at UHWI to report the infectious happening to the Kingston & St. Andrew Health Department, unless there were outbreaks of organisms of Class 1 or Class 2.

With the discovery of the presence of this bacterium in June, infection control measures were heightened. These included inter alia: the isolation of babies infected; the cessation of admissions to the Neonatal Intensive Care Unit; and the re-emphasising of aseptic techniques by hospital staff. A thorough cleaning of the Neonatal Intensive Care Unit was commenced, followed by deep cleaning of the Special Care Nursery.

The UHWI mobilized extra experts to help in the management of the infection. Microbiologists detected the presence of Serritia marcescens at some places, and on various items in the Neonatal Intensive Care Unit and in the Special Care Nursery. With the intensified all-out launch of the infection management and control procedures, there was no further clinical case of Serratia from the 18th June 2015. However the sites where it was detected, as well as other sites were repeatedly decontaminated and tested until the bacteria was eradicated and confirmed by negative culture results.

One preterm baby died from Serritia marcescens during this period.

Based on the report presented by the UHWI, the onset of Serratia marcescens was effectively brought under control, but by the 15th September 2015, there was the detection and isolation of Klebsiella pnuemoniae and Klebsiella oxytoca which were well in progress. All efforts were made to contain it.

Having discovered the Klebsiella bacterium, once again the infection control machinery was again put in high gear.

The evidence is that infection of the type in this case, was not uncommon. On average there are about 36 such infections per year. This works out to be about three cases each month. On the incidence of death from these infections, Professor McCartney said—

“the incidence of death from these infections averaged about four or five per year between 2005 and 2010”

According to the evidence, the total number of deaths in the Neonatal Unit which included deaths from sepsis averaged about 50 per year. The majority of these deaths are attributable to prematurity. Babies with gestation periods of 26 weeks and less have a significantly high rate of death, because of the incomplete formation of their organs. And of course they would be more susceptible to routine infection as their immune systems are not yet developed.

An outbreak is usually declared when the number in a group of patients simultaneously suffering from the same infectious organism in an area (referred to as a cluster), rises to ten or more, according to the evidence of the Professor.

It is the Infection Control Committee which monitors the Unit on a daily basis that makes the call on whether an outbreak exists, were it to occur.

By the 13th October 2015 both strains of the Klebsiella bacteria which had been detected, were eradicated. On the evidence of Professor McCartney:-

“…there have been no other positive identification of any of these bacteria since October 13; and this precedes the intervention of any outside Unit. So that what I am saying in essence is that the measures and the preventative mechanisms which were put in place by the Infection Control Committee, resulted in a resolution of the plague; I call it a plague. …[it is an] infection rate, which is not unusual with any Unit in the world that looks after babies of less than one kilogram.”

The preterm babies

Between 15th June 2015 and 13th October 2015, eight (8) babies died. All the babies were born prematurely. Seven of these preterm babies at birth weighed less than two pounds. One weighed two pounds four ounces (2lbs 4ozs) at birth. The ages at death ranged from 32 to 117 days. In one case the cause of death was attributed to the infection by Serratia marcescens. The other deaths were due to Klebsiella, or a combination of Klebsiella and other factors.

Without disclosing the identities of any of the babies and by extension that of their parents, we were supplied with the record of birth weights of these preterm babies.

Baby No. 1 – 1.25 lbs
Baby No. 2 – 1.40 lbs
Baby No. 3 – 1.65 lbs
Baby No. 4 – 1.87 lbs
Baby No. 5 – 1.63 lbs
Baby No. 6 – 2.40 lbs
Baby No. 7 – 1.90 lbs
Baby No. 8 – 1.60 lbs

The evidence is that babies born from gestation periods as short as these babies were, are not always viable, and are highly susceptible to infections. The prevailing view in the scientific community is that their immune systems are not sufficiently developed. Importantly, their lack of development is incompatible with life.

In his evidence, Professor McCartney explained, with respect to pre-mature babies, that—

“The organs are extremely premature and therefore are not compatible with life so to speak … and that sort of mortality is directly related to the birth weight, a birth-weight of less than one thousand grams has a success rate of about thirty percent success, seventy percent of babies born with weight of less than a thousand grams die …those who are over a thousand grams, over ninety percent survived (sic), a very small rate of death”

Infection control

Although infection control measures were implemented, there was only one infection control nurse in the Neonatal Department at the UHWI. According to Professor McCartney that was the cadre for the Department. He testified that a single nurse is the establishment figure. He said:-

“That is the establishment figure. I might add that with the visit of the Pan-American Health Organization team that was one of the few differences that they found, they suggested that with our number of beds, we should have three. But based on the Government of Jamaica’s cadre it is only one post.”

The cost of the post for an Infection control nurse is approximately J$4 million per year. The PAHO recommended standard is one such nurse for every one hundred and fifty adult beds in a hospital.

When probed by the Public Defender, Dr. White offered the following:–

“So [the PAHO] is saying that for five hundred and fifty beds, you have to have three. But one of the challenges we face in the hospital is resources issues in which the money we get, typically, seventy-five percent of it is used to pay salaries and so, as Dr. McCartney is saying, very often you try to work as best as you can in the establishment that you have. Now that attention is drawn to it, there is a feeling that you were short staffed, but even now it is a matter of how you balance the shortfall in resources to be able to buy pharmaceuticals, medical supplies, and to keep the plant running on a day-to-day basis; equipment and all that as against increasing overheads.”

Cleaning routine at Neonatal Unit

The documents examined during this investigation disclosed a rigorous cleaning routine. The janitorial service to the Special Care Nursery and the Neonatal Intensive Care Unit, was outsourced to a local janitorial company.

The tone of the evidence suggested that the cleaning routine was intensified after first case of Serratia marcescens was isolated.
It emerged from the evidence that among the challenges in resources faced by the Neonatal Unit was a shortage of culture plates. A culture plate is the medium on or through which organisms taken from tissue, are grown. For example, a swab taken from say the throat, or even any surface, requires a medium in which to foster the growth of any organism which exists in that swab. The culture plate is that medium.

Other challenges faced by the Neonatal Unit

The effect of the unavailability of culture plates proved adverse to the regular environmental testing of the Neonatal Intensive Care Unit. On the evidence, the culture plates are not the property of the UHWI; they belong to the Microbiology Department, which is a part of the University of the West Indies.

Another challenge, with which the Neonatal Unit was faced, was that of repeated water shortage. Between June and August 2015, there occurred frequent was water lock-offs at nights at the Neonatal Intensive Care Unit.

The first media announcement came on newscast in mid to late October 2105 on radio station Nationwide 90FM. It was carried as a “mysterious outbreak of infections killing babies at the University Hospital”. The news broadcast triggered some measure of anxiety in the health sector. A series of meetings were called. One such meeting was that of the Board of Management held on Saturday 24th October 2015. Following this meeting Professor Trevor McCartney and Dr. Cecil White severed their ties with the UHWI.

Serratia marcescens and Klebsiella are both bacteria are common sources of nosocomial infections. That is to say, infections originating or taking place in hospitals; or infections acquired in hospitals. It comes from the Greek words nosus which means “disease”, and komeion which means “to take care of ”. A nosocomial infection is specifically one that was not present or incubating prior to the patient being admitted, but occurring within 72 hours after admitted to hospital.

FINDINGS

Nature of the pathogens

Serratia marcescens is commonly found in the respiratory and urinary tracts of hospitalised adults, and in the gastrointestinal tract of children. It is an opportunistic nosocomial pathogen which can be found even in bathrooms, in toilets and such ablution facilities. It invades even an intensive care unit in a medical facility.

Klebsiellia is found in the normal flora of the mouth, skin, and intestines. It can cause destructive changes to the human lungs if inhaled. Generally Klebsiella infections are seen mostly in persons with weakened immune systems. Contact with contaminated instruments is one of the significant sources of patient infection.

A thousand gram is the same as one kilogram. It is equivalent to 2.2lbs. The Public Defender accepts that a pre-term baby of that size, will always be vulnerable to nosocomial and other infections. That is a scientific fact. While such new borns, can and should be shielded from such infection, unfortunately it is almost inevitable that some will contract the infection. Regrettably, given their underdeveloped organs and immune systems, not all will survive.

Some preterm babies contracted the disease Serratia marcescens at the Special Care Nursery at the UHWI in June 2015. This was not a first time occurrence. It happened in October 2011 and again in December 2013. In October 2011, three babies died and in December 2013, there were four deaths.

The June 2015 infections were brought to the attention of the top medical officials by the last week in June, certainly by the 25th June 2015.

It is clear that the Medical Chief of Staff Professor Trevor McCartney, did not categorize any of the infectious happenings as an outbreak. Neither did he accept the term outbreak as an applicable description for what had transpired.

It appears from the evidence that the concept of an outbreak was purely a media creation. The word was adopted by all and sundry, and used even by persons in the health sector to describe the events at the Neonatal Unit, thereby perpetuating the notion of an outbreak.

The hospital activated the infection control and management procedures and through the instrumentality of the Infection Control Unit, the Serratia marcescens was eradicated. However shortly thereafter there was the discovery of another outbreak: this time it was the Klebsiella infection.

The fact of the infectious occurrences having been brought to the attention of the Medical Chief of Staff, the latter had no existing Board of Management to which he could report, he properly engaged the hospital’s Infection Control Unit and other Departments in the effort to contain the infection.

At the time of the infectious episodes there was no Board of Management in place. The actual management and leadership of the hospital was undertaken by senior management including senior medical practitioners such as Professor McCartney. The life of the last Board expired in May 2015. It was headed by businessman Ryland T. Campbell. The Sterling Soares Board was appointed in September 2105 and had its first meeting on the 14th October 2015.

Despite the apparent rigorous cleaning regime, it is suspected that the nightly water shortages may have detracted from the full effect of such a regime.

There was no evidence of medical negligence on the part of the hospital staff, which lead to the infection of the preterm babies with Serratia marcescens and Klebsiella. Neither was there any evidence of medical negligence on the part of any hospital staff in the treatment, care and management of the preterm babies who passed.

The conditions of work at the hospital were not without challenges to the staff; not least of which was the less than ideal, and in some instances, limited. resources. These conditions were not ameliorated by the absence of a functioning Board.
There is no evidence of negligence on the part of any medical practitioner or hospital personnel at the UHWI.

CONCLUSIONS

There was no outbreak at the Neonatal Unit between June and October 2015. That which transpired was not unusual, and the infectious happenings were part of the hazards of low birth weight, undeveloped organs and immune systems and the hospital environment.

The pre-mature babies who were particularly susceptible to infections became the unfortunate victims in an under-resourced medical facility.

The staff at the Special Care Nursery and at the Neonatal Intensive Care Unit performed their duties with skill and diligence, and acted reasonably and responsibly, particularly under the prevailing circumstances.

The running of the hospital was severely handicapped by shortage of resources and the absence of a Board of Management. The Public Defender is persuaded by the explanation offered by Professor McCartney in respect of viability of preterm babies. This position is supported by other medical evidence and from independent research. These innocent preterm babies, given all their severe vulnerabilities, were patients in a hospital facility that was grossly under resourced in critical areas.
It is recommended that the UHWI, and particularly the Neonatal Intensive
Never should there be a time when a hospital is without a Board
Finally, the Public Defender is deeply appreciative of those persons who

RECOMMENDATIONS

Care Unit and the Special Care Nursery, be re-tooled, refurbished, and brought up to the standard of a modern medical facility, befitting of its status as a regional institution and a teaching hospital.

of Management, a sine qua non of good governance.

participated in the investigations. The OPD offers its profoundest sympathies to the mothers and parents who suffered the pain of losing their babies. It is hoped that nothing contained in this Report will operate to the prejudice of any of the parties involved in any dispute arising from this sad series of events at UHWI. The Public Defender merely repeats the evidence, find facts and draws conclusions therefrom.

ARLENE HARRISON HENRY

PUBLIC DEFENDER.

DATED 13 OCTOBER 2016