A Supreme Court Justice has ruled that the Ministry of Health acted properly when it ordered the closure of the Oncology Associates Limited (OAL) cancer treatment centre back in 1998, which was allegedly providing treatment that posed a serious threat to the public’s health.
The Ministry shut down the facility after a scathing report from the American College of Radiology charged that the oncology care provided by OAL at its facility in New Providence was an “imminent threat to the safety of the patients, staff and public.”
It also charged that substandard practice was being carried on at the facility.
Following the closure, OAL took the Ministry to court claiming damages for breach of contract in two respects: wrongful repudiation and failure to give 90 days notice to remedy the alleged breaches before terminating the contract.
But Justice Hartman Longley agreed with the Ministry that because there was an imminent threat to public health, immediate action needed to be taken.
“I can find no reason on the evidence before me to say that the Minister in the circumstances would not have been entitled to withdraw (from the contract) because what he got was certainly not what he had bargained for,” the judge said in his 24-page ruling. “And in the case of cervical cancer patients he had to pay twice for what he had contracted for.”
The Ministry of Health entered into a contract with OAL in June 1996 to provide radiotherapy services to public patients with cancer at a cost of $450,000 annually.
For years, the Princess Margaret Hospital and the government had referred indigent cancer patients to Mount Sinai Hospital in Miami, Florida for radiation and chemotherapy treatments.
The cost of these treatments varied per patient from $20,000 to $50,000, but Mount Sinai agreed to provide the treatment at a discounted rate for public patients who have no insurance.
But the government decided to access treatment at home where possible, hence its arrangement with OAL.
The ruling points out that OAL entered into a contract with the Minister of Health, who at the time was Dr. Ronald Knowles, about six months after it commenced operations.
Not long after the Minister started to refer patients to OAL, various complaints were made by the Cancer Society of The Bahamas about the treatment being administered by the treatment centre, the ruling also said.
“The complaint ranged from bedside manners of [OAL’s] chief of radiology, one Dr. Mark Harrison, to his treatment of some of the patients,” it said. “It was alleged, for instance, that there was excessive burning when compared with the treatment previously administered by Mount Sinai.
“Other complaints were made by medical doctors, particularly those concerned with gynecological patients who had to be treated for cervical cancer. The complaint in that instance was that they were not being treated properly or completely.”
In the case of the cervical cancer patients, the ruling said, the Minister eventually absorbed the cost of sending them to Mount Sinai for treatment since it was subsequently discovered that a critical component of the necessary treatment for those patients was not being administered, as it was not available at OAL.
“The Minister absorbed the cost notwithstanding that the agreement provided that where [OAL] could not treat patients referred to it, it was obliged to refer those patients to a comparable institution and absorb the cost of the treatment,” the ruling said.
“Devastating findings were made about the standard of practice carried out at the facility by the chief and apparently only radiation oncologist, Dr. Harrison,” Justice Longley pointed out.
“For example, the report found that the quality of care provided by Dr. Harrison to not only be substandard and in obvious violation of good practice, but also to demonstrate a seemingly reckless disregard for the welfare of his patients.”
Minister of Health, Dr. Ronald Knowles soon ordered the closure of the facility.
The Minister later insisted that the reopening of the centre was a matter for the new licensing board, which did not take effect until 2000. It never reopened.
In his ruling, Justice Longley said, “To my mind, treatment that is found to demonstrate a reckless disregard for the welfare of patients and which was pervasive as that of Dr. Harrison’s and which produced documented excessive and unnecessary morbidity strikes at the very heart and substance of the contract which was concerned with the public health and strips the Minister of the very thing that he contracted for,” he said.
“Taking into consideration the undisputed findings made in the cases of the cervical cancer patients, the breast cancer patients, the prostate cancer patients, the rectum and sigmoid cancer patients and other disease site cases, in particular the cases of the two children – the seven year-old and the six-year-old referred to in the report with stage three Wilmot tumor and medulloblastoma – it is clear that the conclusion reached by the ACR about the standard of treatment of Dr. Harrison and its consequences and effect was justified.
“When one bears in mind that these are but random samples taken of all the cases then in existence one is forced to conclude that the entire batch was probably contaminated by this maltreatment administered by Dr. Harrison and OAL. These are most probably not isolated cases.”
Justice Longley further said that the treatment and care administered by Dr. Harrison appeared to have been a “wholesale” deviation from the known and accepted norm for radiation treatment, as he utilized “none” of the protections and precautions normally associated with dangerous treatment.
“The resulting endangerment of the public health cannot possibly be what the Minister of Health bargained for,” he said.
“On the facts and circumstances before me, I would conclude that there was fundamental breach of the agreement and in the circumstances the Minister of Health was entitled to withdraw.”
OAL’s attorney, Philip “Brave” Davis, told The Bahama Journal on Tuesday that his client plans to appeal the ruling by next week.
By: Macushla Pinder, The Bahama Journal
