Government guarantees payment of any damages due in Andrea Massa case

The Department of Health has issued a guarantee undertaking to pay any amount that may be due to the family of Andrea Massa, the seven-year-old boy who died at St Luke's Hospital following an appendectomy in February 2001, in virtue of an eventual court judgment, in consideration of their not requesting the issue of precautionary warrants against a medical consultant.

The guarantee was authorised by the Finance Ministry (and signed by Director-General Operations Salv Gauci) in a letter dated September 27, and addressed to the Director-General of Health, Dr Ray Busuttil.

A copy of the guarantee was forwarded to Dr Emanuel Mallia, the lawyer of Charles and Josephine Massa, three days later. It read:

"The Department of Health of the Government of Malta, as duly authorised by the Ministry of Finance [...] in consideration of your not requesting the issue of precautionary warrants in respect of the said claim, hereby irrevocably and unconditionally guarantees and undertakes to pay to you within two months of your written demand accompanied by the documents mentioned hereunder, any amount which may be adjudicated to be due to you by all or any of the said employees by final and unappealable judgment of a Court of Malta in connection with the said potential claim".

When contacted by The Sunday Times Dr Busuttil explained that the Department of Health offers medico-legal protection to all its employees and added that he would rather not comment further at this stage.

In a statement Mr Massa explained that the guarantee was issued after exchanges of correspondence between him and his wife, through their lawyer, and the consultant and the Department of Health in September.

(The name of the consultant is not being published following a court order handed down during the compilation of evidence against him over the death of Andrea Massa. The court case had come to an end after Attorney General Dr Anthony Borg Barthet issued a nolle prosequi, releasing the consultant from all charges.)

On September 3 the Massas sent a letter to the consultant, in his personal capacity, requesting him, for the last time, to come forward without further delay to quantify and settle all damages suffered by Andrea Massa's family as a result of his death.

On September 17, Dr Brigitte Gafà, legal adviser to the Department of Health, replied on behalf of the consultant. In terms of Dr Gafà's letter, the consultant refuted all allegations made in his regard, as being unfounded in fact and at law, and called upon Andrea's family to desist from vaunting further unfounded allegations in his regard. Moreover, the consultant held the Massas responsible for any damages he may suffer as a result of such allegations.

Having only received Dr Gafà's reply in October, on September 14, Dr Mallia sent another letter to the consultant advising him that should he persist in not replying to the letter, all due legal proceedings, including the issue of precautionary warrants, would be instituted in his regard without further delay, in order to safeguard the Massas' claim against him.

Dr Gafà then contacted Dr Mallia and requested him to stay any legal action as she wished to discuss the case with him and with Dr Busuttil.

A meeting was held on September 24 at the Ministry of Health where Dr Gafà and Dr Busuttil and Dr Mallia and Mr Massa were present.

During this meeting Dr Gafà explained that in cases where damages are caused by doctors or consultants employed with the State, the government will always make good for the damages, and consequently requested again that no precautionary warrants be issued against the consultant in question.

Then, following several other correspondence Dr Mallia was informed that the government was prepared to guarantee the payment of any damages that may be adjudicated in favour of the Massa family in connection with their son's case.

On September 30 an envelope containing a letter and a copy of the guarantee was delivered to Dr Mallia who soon after informed Dr Gafà that the terms and conditions laid down in the guarantee were unacceptable to his clients and, in any event, he did not agree that his clients' rights should be subjected to any restrictions.

In the statement Mr and Mrs Massa raised several questions about the matter: "Why did the Department of Health feel the need to assist and shield this particular consultant in such a specific manner?

"Why has the guarantee issued by the government, been extended to cover all other doctors that may have in some manner been involved in the Andrea Massa case, when it was clear that, originally, the government's endeavours were directed to avoid the issue of precautionary warrants only in respect of the particular consultant in question?

"Could this blanket cover be intended to ensure that, as much as possible, the name of the particular consultant is not divulged? The letters dated September 3 and September 14, sent by Dr Rachel Montebello (who worked with Dr Mallia at the time) and Dr Emanuel Mallia, respectively, were sent only to the consultant in question, in his personal capacity, and not to any other doctor or consultant, and consequently, there was no need for the guarantee issued by the Ministry of Health to be extended to any other doctor or consultant...

"Why did this particular consultant, instead of consulting his own private legal adviser to reply to the aforementioned letters, as is the norm for any doctor or consultant who may be involved in a case of medical negligence, consult directly with the government, with the resultant issue of the guarantee in question?

"Is it correct or reasonable, in the light of the recent developments and circumstances of this case, to understand that from now on, every doctor and consultant employed with the State, will be protected by the State even if the doctor or consultant in question admits under oath that he failed in his basic medical duties?" they questioned.

The Massas also questioned how they can ever be convinced that the consultant was not being protected by some authority? This question, they said in their statement, emerged after several factors such as the abrupt manner in which the criminal proceedings were brought to an end by the former Attorney-General, even after a magistrate had ruled for the indictment of the consultant, and the issuing of the guarantee, among other things.

At this stage, Mr and Mrs Massa added, they saw no alternative but to discuss their son's case, as a medico-legal case, in the public arena "so that the public will have the opportunity to examine and consider all the facts of the case, and reach its own conclusions on the developments that have unfolded throughout the last three and a half years."