The mother of a two-year-old boy with birth defects associated with the Zika virus has been given the nod to sue the State over its failure to provide comprehensive health care for the toddler. Delivering a ruling in the San Fernando High Court last Thursday, Justice James Aboud granted leave to the mother to pursue her judicial review case against the State.
The application for leave, which determined whether they had a valid case which could be pursued, was not opposed by State attorneys.
While the lawsuit names the woman and her son, their attorneys Alvin Ramroop, Kingsley Walesby and Sarfraz Alsaran, requested that they remain anonymous to protect the minor.
According to the court filings, the woman is claiming she and other parents with children suffering from microcephaly had a legitimate expectation that they would receive specialised treatment and counselling through the public health care system.
The family’s lawyers are relying on a series of public statements made by Health Minister Terrance Deyalsingh since the worldwide Zika outbreak in 2016.
They claim that on October 31, 2016, Deyalsingh held a press conference where he declared the outbreak a public health emergency and said his ministry had enlisted the help of microcephaly experts from Brazil, Canada and England. They also alleged that Deyalsingh promised that the Ministry of Social Development would provide grants to families who did not have the financial resources to provide optimum care for such children.
However, when they wrote to that ministry to seek the funds they were informed there was no special Zika grant and only an $800 grant for parents with minors with disabilities.
The family’s lawyers first sued the Health Ministry in January last year after it failed to disclose details of its official policy for treating the Zika virus and associated complications, as allegedly promised by Deyalsingh. While the family succeeded in their initial claim for disclosure, the ministry informed them the policy was in the draft stage and had not been implemented.
In addition to seeking a declaration that their legitimate expectation was breached by the State’s failure to implement its policy to address the virus, the family is seeking an order compelling it to immediately provide the reasonable health care to the child.
The child was diagnosed with the condition, in which the brain does not develop resulting in a smaller than normal head, when he was born at the Mt Hope Women’s Hospital on February 3, 2017.
The family’s lawyers claim that since then the child had only received basic neonatal and neurosurgical care and that they (the family) had to foot the bill for private medical tests on the toddler’s sight and hearing and for physiotherapy. They also alleged no counselling was provided on the specialised care needed for the child throughout his life.
As part of the claim, the family also included an affidavit from gynaecologist/obstetrician Dr Karen Sohan, who worked with the ministry during the heart of the outbreak. In addition to supporting the family’s claims for specialised treatment, Sohan expressed frustration over the ministry’s failure to establish an effective policy at the time.
“As a physician for almost 27 years of which 25 were in obstetrics and gynaecology and over two decades of experience in foetal medicine, it is my assessment that the defendants had sufficient time to prepare, were kept well informed of the state of affairs but failed in their duty to ensure that one of the most vulnerable groups in society, the Zika affected babies, the unavoidable victims of a national crisis as declared by the defendants received and continue to receive an appropriate standard of care,” she said.