Eithne Donnellan explains why hospital consultants are up in arms over the introduction of a new insurance scheme for malpractice.
In 1999 the Government decided that the practice of having separate insurance arrangements for hospitals and doctors should cease and be replaced by a single system to cut down on costs. There would be just one set of lawyers and duplication would be avoided in the event of a patient suing for negligence.
The system opted for was one called enterprise liability, under which doctors and hospitals would be insured as one entity by a new body called the State Claims Agency, which would handle claims.
The system is now up and running and has for some time been covering nurses, laboratory technicians and a wide range of other healthcare staff. Its scope was finally extended yesterday to cover hospital consultants.
Consultants are angry that enterprise liability does not cover them for "good samaritan acts" outside a hospital such as coming to the aid of a victim of a stabbing, or road traffic accident. But they are outraged that it does not cover them for historic liabilities. This means if they made a mistake in the past about which they still have not received a complaint, the new scheme will not cover them when the claim is lodged.
The Department of Health feels that historic liability should be met by the company which insured the consultants at the time. Up until yesterday the consultants were insured by either of two British bodies, the Medical Defence Union (MDU) or the Medical Protection Society (MPS). The doctors paid their annual insurance premia to these companies and the bulk of it was reimbursed by the State.
Now that responsibility has transferred to the State Claims Agency, to which any consultant working in a public hospital, even with private practice at that hospital, will be covered without paying any premium at all.
Consultants in full-time private practice are not covered and will continue to have to take out an insurance policy with either the MDU or MPS.
There were initial fears that the new scheme would push the cost of premia for those consultants exclusively in private practice, especially obstetricians, to unaffordable heights and threaten the existence of private maternity hospitals like Mount Carmel in Dublin and the Bon Secours in Cork.
However, the Department of Health stepped in and said it would keep premia relatively affordable by footing the bill for any payout in excess of €500,000 which has to be made in respect of a claim against an obstetrician in full-time private practice. It has also said it will meet the excess on compensation payouts of over €1 million made against consultants working full-time in private practice in other specialities.
The reason there is so much angst over the new scheme not covering historic liabilities is because the MDU has said it cannot guarantee it will be able to meet historic liabilities of Irish obstetricians who were insured by it over the years and cannot give a "cast iron" guarantee in relation to other specialities either. It says it simply did not collect enough in subscriptions over the years.
Naturally consultants are worried they could be left uncovered in the event of a claim. They could, they say, be left destitute and their patients who have a right to compensation could be left without it. They wanted the Department of Health to sort out this uncertainty before it forced them into enterprise liability yesterday. This didn't happen and forcing them into a new indemnity scheme without agreement is, they claim, in breach of their contract.
The MDU wants to transfer its liabilities to the State Claims Agency, but has been only prepared to pay the State €60 million to take on the historic liabilities of Irish obstetricians. The Minister for Health, Mr Martin, says these could cost anything from €400 million to €800 million and he says he is simply not going to ask the taxpayer to take on this burden.
Both sides meet again today to see if the MDU will make an improved offer. If they don't, Mr Martin has said the State will financially back any consultant who takes a legal action against the MDU for failing to meet claims. However the Irish Hospital Consultants Association feels this is a doomed strategy. The consultants are caught in the middle and have decided for the first time ever to take industrial action in protest.