Analysis: Past liabilities are the outstanding issue as insurance cover for many Irish obstetricians remains in doubt, writes Medical Correspondent Dr Muiris Houston
A war of words between the Medical Defence Union (MDU) and the Medical Protection Society (MPS) is the latest twist in a long-running saga over medical cover for doctors.
Along with the Department of Health and doctors' representative groups, medical indemnity bodies have been engaged in a complicated "two-step", with various alliances apparently forming and disbanding in response to the most recent developments.
While there are many strands to this story, the principal ones involve enterprise liability (see panel) and the potential liability of consultant obstetricians for claims arising out of the past births of children who go on to develop cerebral palsy.
According to Dr Christine Tompkins of the MDU, the problem of past liabilities has arisen because the cost of obstetric claims exceeds the ability of the Republic's 100 or so consultant obstetricians to bear.
"Cerebral palsy develops in two to three of every 1,000 live births. This is unrelated to the clinicians' ability," she says, adding that obstetricians here are among the best in the world.
"But the rate of cerebral palsy gives the potential for almost eight claims against obstetricians a year at a potential cost of over €4.45 million per claim for the most expensive ones."
The MDU told the Oireachtas Joint Committee on Health & Children in November 2003 that it estimated its total remaining obstetric liabilities at €130 million including legal costs.
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 MDU covered the majority of obstetricians here until 2001/2002. In 2001, the MPS informed the Department of Health it would have to raise its premiums for obstetricians to €227,396.
The MDU said a realistic premium for it was €499,000.
The Department of Health was alarmed at these figures, which had a major implication for the Exchequer as consultants in public hospitals had 80 to 90 per cent of their premia reimbursed by the Department.
It reached an agreement with the MPS to keep obstetric premia at €65,500 per annum with the result that all obstetricians moved from the MDU to the MPS.
Although this solved the crisis in the short term, it did have the effect of leaving the remaining (non-obstetrician) members of the MDU to bear the burden of obstetrics claims without any ongoing contribution from the obstetricians who were now members of the MPS.
While the MDU says it has historic obstetric liabilities of €130 million, the MPS puts its own past liabilities for the speciality at €70 million.
However, a recent actuarial analysis carried out on behalf of the Department of Health estimates the figure at a multiple of the MDU calculation.
The Irish Times understands the independent, but so far unpublished, calculation was for a figure in excess of €350 million.
With the amount in dispute, and the Department of Health and the MDU at loggerheads, the key question for both patients and doctors alike is: who will pay for the care of brain-damaged infants who were born before February 1st last and whose cases have yet to be dealt with by the legal system?
Why this date?
It is when the Department of Health unilaterally, and against the wishes of Irish consultants, introduced the enterprise liability scheme.
For a child born with cerebral palsy after February 1st, its parents will be able to seek redress through the State Claims Agency.
For a child born on January 31st, 2004 or before, parents remain in a legal limbo.
The MDU has stated it may not be in a position to cover the legal costs or award made to such a child.
And in the wake of the much criticised Minister Michael Woods's infamous settlement with the religious orders concerning child abuse, the Cabinet has thus far set its face against any State bail-out for the MDU.
The MDU points to decisions made by UK and Australian governments to cover the historical claims for obstetricians (and other specialities).
In a recent publication, Why the MDU is taking a stand on behalf of its Irish members, it states: "The MDU believes that a similar approach should be taken by the Irish State in the best interest of patients and doctors.
"Having already committed €37 million from their funds towards the obstetricians, we believe it is not right or fair that MDU members should have to pay any more and nor can they afford to."
In response to concerns from its remaining Irish members that it may ultimately leave the market here, the MDU says, "we have been in Ireland for over 100 years and we do not intend to leave".
Where next for the saga?
A possible political solution is that the Government will do some sort of deal with the MDU, once the European and local elections are out of the way.
Alternatively, the MDU may refuse to cover an obstetrician in a particular legal case, with the likelihood that its actions will be tested all the way up to the Supreme Court.
Whatever happens, there are no indications of a quick-fix solution to a highly complicated issue which has very real implications for patients and their doctors.
Questions & Answers
What is enterprise liability?
The new scheme, also known as the clinical indemnity scheme, will mean that patients will sue the hospital and the doctor as a single unit (the enterprise). Until now, a patient who believed he was the victim of medical malpractice sued the consultant and the hospital separately. This added considerably to the costs involved in such legal actions.
However, from a doctor's point of view, it had the advantage of ensuring that he or she had separate legal representation and had full control over his of her defence. The clinical indemnity scheme is run by the State Claims Agency. It will decide whether to defend a case or not. Significantly, it is already compiling data on adverse events and "near misses" which, its proponents argue, will help to prevent healthcare error.
Who are the MDU and MPS?
They are mutual, non-profit organisations and are owned by their members.
Both organisations defend the professional reputations of members - doctors, dentists and other healthcare professionals - when their clinical performance is questioned.
The MDU was established in 1885. It offers the traditional discretionary benefits of a mutual society, as well as a professional indemnity policy underwritten by a commercial insurer. The MPS has 200,000 members in over 40 countries. It has remained with the traditional discretionary benefits approach, which means it makes a decision whether to defend a particular case based on the mutual needs of all its members. It does not offer a traditional insurance policy. The council of the MPS controls the exercise of this discretion.
What is the future role of the MDU and MPS now that the State Claims Agency provides negligence cover?
The State Claims Agency does not cover doctors for ethical issues, such as those arising from a Medical Council investigation or for other non-negligence issues.
In addition, consultants who are in private practice full-time will still require indemnity cover from the UK- based medical defence organisations.