1st November 2002
It is popular opinion in this country that the seats in the Dáil and Seanad are mainly empty during debates because the elected members are lolling about in the bar and the restaurant eating and drinking. Actually we are in our offices working away and watching and listening to the debates on monitors. There is a speaking order in both Houses and if one is waiting to speak it is possible to keep working until the member whom one is following stands up when it is then time to run over.
Now, while I cannot speak in Dáil debates, I keep a very close eye out when the Minister for Health and Children is taking questions. A few weeks ago Simon Coveney T.D. and Olivia Mitchell T.D. had questions down regarding the ongoing dispute between the Department of Health, Hospital Consultants, the Medical Protection Society and the Medical Defence Union. Amongst other things the Minister was asked if he was subsidising obstetric subscriptions covered by the MPS and had the MDU been offered a similar deal? When questioning the Minister Deputy Mitchell referred to the fact that the MDU had complained to the European Commission that the subsidy was against the rules of competition and asked if the Minister had had legal advice when he decided to subsidise the MPS obstetric subscriptions.
One thing struck me in that reply - the Minister said the discussion with the MDU did not continue because the MDU were insistent that the issue of historic claims must be dealt with.
For the last year I have been a member of the MDU Irish Advisory Committee and I know well how important historic claims are, but this article is not based on any special inside information. Forty per cent of obstetric claims have not been lodged six years after a disputed episode and many are not lodged for over a decade. The awards in these cases have dramatically increased in recent years. I have been told that obstetric claims inflation has risen by 26.5% per year over the last ten years.
The medical indemnity bodies pay for historic claims out of current subscriptions. The Minister said in the Dáil debate that enterprise liability will be introduced at the end of the year, so says I to myself (a person I often speak to when I want a bit of sensible advice), who is going to pay for these historic claims?
There appeared to me to be only two possible sources out of which funds could be sought, one, the medical indemnity bodies and two, the Irish taxpayer. Now when enterprise liability comes to pass the income of the medical indemnity bodies will be much reduced unless doctors are charged exorbitant rates for the cover needed for those areas outside enterprise liability. And what of the unfortunate Irish taxpayer of the future?
I decided to put down a question on the Adjournment of the Seanad the next week (which is the way Senators attempt to get information) as to who was to pay up for these historic claims. I explained my concerns to the Minister of State, Brian Lenihan, who was sent in to the Seanad with a prepared reply. The historic claims, I was told, would be paid for by the medical indemnity bodies who should have made adequate provision in times past to cover these claims.
Alarm bells rang in my head. How did this tally with the letter from the Secretary General of the Department of Health and Children, Michael Kelly, to the Secretary General of the Department of Finance on 26 October 2000 which was released under a freedom of information request and part of which said:
"One of the effects of 'occurrence' based cover is that the medical defence bodies find it difficult to 'close their books' on a particular year as they cannot be certain that a claim arising from events during that year will not emerge at a much later date. Thus it is difficult for them to set an appropriate subscription for any single year. They are therefore extremely vulnerable to a sudden or rapid escalation in the cost of meeting claims in a general or a particular category of claim. In effect this has happened in Ireland arising, in particular from claims associated with infants alleged to have been injured at, or close to, the time of birth."
And later in the letter
"...it is clear that the introduction of enterprise liability would seriously affect them (medical defence bodies). In effect they have been trading on a 'pay as you go' basis for some years, i.e. relying on income in any one year to meet the cost of claims arising from earlier years...The introduction of enterprise liability will, if other measures are not taken, hasten the inevitable as it will cut off the bulk of the defence bodies' income from Irish doctors while leaving them with their accumulated Irish liabilities."
From this letter it is perfectly clear that the Minister knew that problems with historic claims would put an impossible strain on the medical defence bodies. But in his reply to my question he said:
"If the defence bodies have conducted their affairs in a prudent and responsible fashion then there is no reason why they should not be in a position to meet the liabilities for which they have accepted subscriptions in the past"
No matter what the reply to my question in the Seanad I bet it will be the Irish taxpayer who will in the end have to pay up and the Minister admitted in the Dáil that the historic claims could be "considerable". And nothing will have been done to help children with cerebral palsy or their families which is the nub of the problem.
Senator Mary Henry, MD
