The Medical Defence Union has made clear for 10 years that the cost to it of obstetric claims was unsustainable, writes Dr Michael Saunders.
It is regrettable for Irish doctors and their patients that negotiations between the Medical Defence Union (MDU) and the Department of Health and Children aimed at resolving who will pay compensation for obstetric claims have broken down. We have been speaking to the Department of Health about the unsustainable cost of obstetric claims for over 10 years and during this time they have had innumerable opportunities to address the problem constructively.
There has been much said about the MDU's role in this, some of it wrong; and some of it by commentators who should and do know better.
Let's start with some facts. The MDU is a non-profit-making mutual organisation. There are no shareholders and there is no pot of gold. Indemnity payments are made from funds subscribed by members. From 1977 until 2001, the MDU took only €25 million in subscriptions from Irish obstetrician members. We have already paid over €75 million to meet obstetric claims arising from those years, which means we have spent over €50 million of money subscribed by non-obstetrician members for their claims.
It is no secret that recent negotiations with the Department were to explore the possibility of the MDU paying for obstetric claims that we know about. If this were agreed, it would cost us about €70 million more, over half the cost of outstanding obstetric claims which we estimate at €130 million in total. To make such payments is not to "walk off the pitch" and it is wrong to assert otherwise.
A figure of €400 million has been quoted as an estimate of the cost of historic obstetric claims. This comes from a report prepared last year for the Department, based on the MDU's data. We dispute that figure, but have not been allowed to see the report. To do so, we would have to agree to a gagging clause and could not discuss it with our members or explain publicly why the estimate is so much higher than our own. Yet, it is clearly in the State's interests for us to see the report, and to try to reconcile the massive disparity between that estimate and our own.
It is said that we took premiums and that the MDU is an insurer. We have made it very clear to our members and others that we are not an insurer. Obstetrician members never had an insurance policy. They paid an annual subscription which gave them the right to seek assistance with claims arising out of their care of patients. This discretionary indemnity is the basis on which we used to operate in Ireland and in the UK. We began to provide our Irish members with an insurance policy in 2001, as a benefit of membership, but the cost was too prohibitive to offer one to obstetricians.
Some have accused us of discriminating against our members in Ireland and their patients. This is just not true. It is only in Ireland that we have been forced to take these steps, because only the Department of Health has failed to address the problem satisfactorily.
The fact that so many babies are brain-damaged at birth is not unique to Ireland. It is one of those tragedies that happens irrespective of the quality of medical care, and Irish obstetricians provide a high standard of care. However, in other developed countries, governments have recognised that the high cost of providing care for these babies is a problem for the state and have taken responsibility for obstetric claims, past and present. In the UK, the Department of Health introduced a state indemnity scheme back in 1990 when the problem first became apparent. They made orderly arrangements to cover known claims and claims that had not been reported, and the MDU made a financial contribution.
The Department acknowledged there is a problem with obstetric claims but approached it piecemeal. First it took on partial responsibility for future obstetric claims through two secret arrangements with the Medical Protection Society. Then, it took full responsibility for future State claims when it imposed enterprise liability on consultants in February 2004; while at the same time agreeing to subsidise the cost of future private obstetric claims. It has not yet accepted responsibility for historic obstetric claims.
There is a solution to the historic obstetric claims problem, which we first discussed with the Department long ago. It is a negotiated solution whereby the MDU could take responsibility for the known obstetric claims. The MDU is not looking to walk away: far from it. If a deal was agreed in the terms we have discussed so far, MDU members would end up contributing well over €145 million to meet obstetric claims when obstetricians themselves only subscribed €25 million.
We have negotiated with the Department for a few years now, without success. If it really wished to reach a solution, there is no reason why we could not agree one in general terms within days.
Dr Michael Saunders is chief executive of the Medical Defence Union.