Wed | Oct 20, 2021

Law for Jodian - Lawyer says legislative changes needed to remove hurdles for other patients, families

Published:Sunday | May 3, 2020 | 12:00 AMErica Virtue - Senior Gleaner Writer
Attorney-at-law Isat Buchanan
Kenton Senior cradles the daughter he shared with the late Jodian Fearon.
Fearon, posing with a small tummy during her pregnancy. She died at the University Hospital of the West Indies mere hours after giving birth at the Spanish Town Hospital last week.
Jodiann Fearon

The family of Jodian Fearon, the 23-year-old mom who died under controversial circumstances at the University Hospital of the West Indies (UHWI) hours after giving birth last weekend, is calling for legislation to ensure that no other Jamaican has to endure the ordeal the first-time mom went through when trying to access medical services.

Fearon, who was just days shy of her 24th birthday, died last Saturday after a bizarre series of events which began when she turned up to have her baby at Andrews Memorial Hospital in St Andrew on Thursday, April 23. Her care was reportedly delayed for hours in the search of another facility to take her after concerns were raised about her presenting with flu-like symptoms amid the coronavirus outbreak. She was eventually transferred to the Spanish Town Hospital in St Catherine, where she delivered the baby before being sent to the UHWI for further care.

Fearon is said to have died from heart complications on Saturday, April 25. It is believed that she had cardiomyopathy – a disease of the heart muscle that makes it harder for the heart to pump blood to the rest of the body – and it is unclear whether her family or medical personnel entrusted with her care were aware of the condition.

The family’s attorney, Isat Buchanan, told The Sunday Gleaner that part of the justice being sought in the case is a change in legislation. That legislation, according to Buchanan, “should ensure that no other woman endures what she went through, and it must also include families, including named next of kin, having a right to access [a deceased patient’s] medical records”.

“It’s most unfortunate that we are always very reactive,” Buchanan said. “And even in our reactions, our solutions are generally an acceptance that, yes, this happened, and somebody cries for change, but no change really comes.”

Buchanan said that in most cases, it is left to the judiciary to settle matters between aggrieved family members and medical institutions, but at times, nothing changes fundamentally.

“We oftentimes have to go the courts and the rulings are generally what guide everyone, including legislators. The #JusticeforJodian is the embodiment of what we are seeking. That is, to ensure that this never happens to somebody else again. Another mother, ever, again,” Buchanan said.

“What we are seeking is a judgment in respect of precedent for legislative reform. Not once has the family sought about money. And in the last four days, if any woman of childbearing years has never touched her stomach with pain, your humanity is lost,” he added.

The family is calling on the UHWI to release Fearon’s medical records to her next of kin or legal representatives.

“We call upon the University Hospital of the West Indies (UHWI) to reconsider its decision not to give our medical or legal advisers copies of the record. If UHWI still insists that neither the next of kin, family, medical adviser or legal adviser can receive these documents, then the Parliament must consider whether this position, in any matter like this, is in the nation’s best interest,” a statement from the family read.

The independent pathologist retained by the family complained that UHWI’s legal officer, Dr Peter Glegg, stood over his shoulders as he quickly perused Fearon’s files just minutes before last week’s autopsy to determine the cause of her death.

UHWI taken to court before

In 2018, Jamaicans for Justice (JFJ) obtained five binding orders from the Supreme Court against UHWI for illegally denying the parents of a child access to her medical records, which was deemed necessary for them to give informed consent to a risky medical procedure.

The Supreme Court also found the hospital unlawfully prevented the father from seeing or attending to her because he objected to its actions. UHWI also threatened the family with legal action because they sought an independent medical opinion. JFJ asked the court to order the release of the child’s complete medical information and the court accepted.

Buchanan said he is sure that legislative changes could prevent such conflicts.

“The family does not intend to question the moral integrity of the good men and women who work tirelessly at UHWI, Ministry of Health or our health institutions to keep our country safe. We do not intend to fight the persons who are the first responders in this COVID-19 fight. We only seek to find out how and why Jodian died. We only seek justice for Jodian,” read a statement Buchanan said was from Fearon’s mother.

“Our Jodian is dead and a child is now without her mother. It may well be that she died despite the best efforts of the health providers or that she died due to the neglect or omission of a health provider. The release of these documents will help us find an answer to this and would provide some comfort to us in this moment of our bereavement,” the statement continued.

Buchanan said that justice in this case would also mean introducing clear protocols that “basic care that should be expected by all patients who present at the emergency department of any hospital”.

When contacted last week, cardiothoracic surgeon Dr Mark Taylor immediately pointed to the United States federal law, Emergency Medical Treatment and Labor Act (EMTALA), which “requires anyone entering an emergency department, public or private in the United States to be stabilised and treated with our without insurance and/or ability to pay”.

He told The Sunday Gleaner: “If this case – or anything similar – happened in the United States or United Kingdom, a legislator would be going to Parliament or Congress calling for legislation to make sure this never happens again. Let us see who will do so here.”

Taylor, who was trained at The University of the West Indies and did his internship at Mount Sinai hospital in New York, has performed general surgery at Howard University in Washington; surgical critical care at the famed Mayo Clinic in Arizona; cardiothoracic surgery at Wayne State in Michigan; and was a clinical associate at Cleveland Clinic in Ohio.

“Legislation is absolutely necessary to define general standard of care. Something has to be written. It doesn’t have to spell it out for the various specialties, such as diabetes, cardiology. The various bodies would do that,” he said.

Permanent secretary in the Ministry of Health and Wellness, Dunstan Bryan, said he would ask the ministry’s legal team to review and advise, when The Sunday Gleaner sought to find out whether there was a law requiring hospitals – whether public or private – to treat all patients who present at an emergency department.

Bryan sought clarification on the question being asked, but no further correspondence was received from him up to press time.

The Government’s free primary healthcare policy applies to some public hospitals and not private facilities.