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Matthew Vella
Christopher Fearne and Maria Meilak, the two doctors sued for the death of seven-year old Andrea Massa, have filed for the revocation of a garnishee order issued in their regard upon a request by Massa’s family.
The family has filed a civil action for damages against the two doctors over the death of Andrea, a Naxxar boy who died at St Luke’s Hospital on 28 February 2001.
In February 2003, former Attorney General Anthony Borg Barthet refused to issue a bill of indictment against Fearne, through the unique right of nolle prosequi. Previously, Magistrate Consuelo Scerri Herrera had already concluded there was sufficient evidence to initiate legal proceedings against the consultant.
Borg Barthet would later state during the Radju Malta programme “Mhux Kelma Bejn Tnejn”, broadcast in February 2004, that his decision had been dictated by his conscience: “This is all that I can say. Now whether I was mistaken or otherwise, may God forgive me”.
The garnishee order was issued by the Court in respect of each of the doctors, representing the damages quantified by the Massas over the death of their son.
Fearne and Meilak requested the Court to revoke the garnishee order stating that the Department of Health had already offered to guarantee the payment of any amount that may be adjudicated in connection with the death of Andrea Massa, back in September 2004.
Parents Charles and Josephine Massa said their legal advisors wrote to Fearne in September 2004 to settle for damages. The Department of Health refuted all allegations made in Fearne’s regard, calling upon the Massas to desist from unfounded allegations.
On 24 September, the health department offered the Massas a guarantee that the government would pay any amount adjudicated in their favour in virtue of an eventual court judgment against any employee of the health department.
The Massas rejected the offer, saying the guarantee was unacceptable because the health department wanted “to extract Mr and Mrs Massa’s cooperation in refraining from pursuing their legal rights against the consultant by not issuing precautionary warrants.”
The Massas will be contesting the guarantee, and ask the Court to ensure the garnishee order is only revoked upon issue of an acceptable guarantee.
In a statement, the child’s parents said they were justified in enquiring why the heath department “would feel the need to assist and shield the doctors in such a specific manner and whether such preferential treatment has ever been afforded to other consultants and doctors.”
Andrea Massa was admitted to St Luke’s Hospital on 20 February 2001 and operated on for suspected appendicitis two days later. Immediately following the operation, Andrea began to experience symptoms that eventually led to the performance of a laparotomy, a surgical incision through the abdominal wall to investigate the disorder, on the 27 February. He died on Wednesday, 28 February 2001.
In August 2002, the inquiring magistrate Abigail Lofaro ordered the Commissioner of Police to institute criminal proceedings against the consultant charged with Andrea’s care while in hospital. Lofaro decided there was enough evidence to charge the consultant for having, through imprudence, carelessness, un-skillfulness in the exercise of his art or profession, or non-observance of regulations, caused the death of Andrea Massa.
In October 2002, in the compilation of evidence against the consultant, Magistrate Consuelo Scerri Herrera found there was sufficient evidence for the accused to be committed for trial.
Links: www.maltatoday.com.mt/2005/01/09/top_story.html
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