The obstetrics row will likely end up in the courts, writes Dr Muiris Houston, Medical Correspondent.
The decision by the Medical Defence Union (MDU) not to provide cover for individual obstetricians in specific cases of alleged malpractice represents a serious escalation of an ongoing dispute between the Department of Health and the medical defence organisation.
Speaking to The Irish Times yesterday, Dr Michael Saunders, MDU chief executive, confirmed that the move was an indirect result of a failure to resolve a disagreement over who should be responsible for past obstetric liabilities.
Clearly frustrated at the lack of progress in negotiations - he said the Department had put new obstacles in place during recent talks - he indicated that the MDU had a business to run and that all obstetric claims in the Republic were now under review.
The background to the dispute is complex. Historically, all consultants in the Republic sought malpractice insurance from one of two UK defence organisations - the MDU and the Medical Protection Society (MPS). This was never insurance in the traditional sense, but rather a discretionary form of mutual assistance based on a subscription rather than a premium. In effect, however, it was seen as insurance cover by doctors and government. Consultants working in the public health system had 80-90 per cent of their premiums reimbursed by the Department.
During the 1990s, the level of awards for obstetric cases began to escalate dramatically. As the MDU rather than the MPS covered most of the 100 consultant obstetricians here, they were obliged to increase their subscriptions, first to £68,000 (€86,340) per annum, in 1999, and then to £393,000 (€499,000), in 2001. At this level, the subscription was effectively unaffordable.
Shortly after this increase was announced, a remaining 35 obstetricians sought to transfer to the MPS. A deal was struck between it and the Department of Health whereby it agreed to accept the obstetricians at a premium of £51,000 (€64,750) on the understanding that the Department would pay out if subsequent court awards exceeded the total subscriptions collected.
As a result, the MDU was left to provide cover for all liabilities arising out of clinical events prior to 2001. Crucially, however, it had to do this without the benefit of ongoing subscriptions from obstetricians.
In a submission to the Oireachtas Joint Committee on Health and Children last November, the MDU said it estimated its total remaining obstetric liabilities at €130 million. It said it had taken €25 million in subscriptions from Irish obstetricians since 1977, and had paid out €62 million in claims to patients on behalf of doctors.
The Department, however, estimates the figure for past liabilities to be a multiple of the €130 million calculated by the MDU. It has been seeking to carry out a due diligence of the MDU's accounts, and it is a failure to agree the details of this that has led to the long drawn out negotiations.
Where does this leave patients and the health service? The decision by the MDU not to cover specific cases of obstetric malpractice, some of which involve children with cerebral palsy, has major implications for the women and children concerned.
With awards in such cases reaching €4.5 million, it is beyond the personal resources of an individual doctor to meet such a claim. Who, then, will look after the ongoing needs of a child with severe cerebral palsy?
The move could also trigger a withdrawal from practice of seven consultant obstetricians who remain in private-only practice in the State. Four of these are based in the Bons Secours private hospital in Cork, which is in the Cork South Central constituency of the Minister for Health, Mr Martin. It carries out 2,000 deliveries out of 6,000 in the Cork area annually.
Clearly, any displacement of this amount of deliveries into the public health system in the city would be chaotic.
A similar displacement of around 1,300 deliveries carried out by the three obstetricians in Mount Carmel hospital in Dublin would have a lesser, but perceptible, effect on the three Dublin maternity hospitals.
Then there is the prospect of a renewal of strike action over the problem by the Irish Hospital Consultants' Association.
Now that individual patients and consultants are being directly affected, a solution must be found.
It is almost certain that the dispute will now find its way to the courts.