It now costs obstetricians up to £68,000 for medical indemnity insurance. Most of this is paid by the taxpayer, as most obstetricians work, at least some of the time, in public hospitals.
These costs are now affecting the future of small maternity units. The Bon Secours Hospital in Cork, which delivers 2,000 babies annually, has said it will close down its obstetric unit due to the cost of insurance multiplying by six overnight.
According to Finbarr Fitzpatrick, secretary-general of the Irish Hospitals Consultants Association, high insurance costs mean consultant obstetricians are no longer entering fulltime private practice. Doctors are now practising "defensive medicine" because of fear of litigation, he told a medical indemnity conference, (Challenge of Change: Medical Indemnity in the 21st Century) earlier this month.
Dr John Hickey, medical director of the Medical Protection Society (MPS), which is one of the biggest of the medical indemnity insurers, told the same conference that the number of claims per thousand doctors is higher in the Republic than in any of the other 40 countries in which it operates. However, he said there had been no marked increase in the frequency of claims in recent years.
What has increased, he said, is the cost of claims, especially in obstetrics. "Consultant obstetricians comprise one-twentieth of MPS membership, one-eleventh of income, one-fifth of claim numbers, but one-third of costs," he said. From these figures, it is clear that £68,000 does not represent the real cost of medical indemnity insurance for obstetricians.
Some, at least, of the reasons are obvious. A mishap at birth can lead to total dependency for life, and the need for 24-hour nursing and medical care. The cost of this will run to millions of pounds. Other medical mishaps are less likely to have such catastrophic effects, and this has been reflected in awards.
Blame for the increase in the cost of litigation has been laid at the door of greedy litigants and the legal profession. Fitzpatrick said that legal costs in Ireland are, on average, four times greater than those for similar cases in the UK. He also blamed the growth in the legal profession and the proliferation of legal advertising for the creation of a "compensation culture", in which people are encouraged to "have a go".
This analysis is disputed by representatives of the legal profession. Ken Murphy, director-general of the Law Society, told The Irish Times that there was a lot of evidence that only a small number of the claims that could be brought ever actually reached court.
"The figures also show that the percentage of medical negligence cases which succeed is smaller than other negligence cases," he said. "This is because the hurdle these claims have to jump is much higher. No claim can be initiated unless another doctor, an expert in the field, believes negligence was involved. In Ireland, it is especially difficult because of the lack of Irish doctors prepared to give evidence against other Irish doctors. You have to go abroad for experts."
He had a different explanation for the high cost of litigation. "It's the way these cases are defended," he said. "The doctors tend to fight these cases very vigorously."
He also pointed out that the majority of solicitors working in the area took work on a pro bono basis, only getting their fees if they won. Senior counsel Mary Irvine also had a different explanation for the rise in costs. She pointed out that the maximum award for personal injury (general damages), set by the Supreme Court, has had the same ceiling of £250,000 for 10 years. What has been rising has been the level of special damages, covering loss of earnings, nursing care and special accommodation and equipment.
"The special damages have been rising rapidly having regard to the increasing costs of nursing care, lower returns on investment income and the significantly improved life expectancy of many severely injured people," she said.
INTERNATIONAL research does not support the view that people rush to litigation if they feel they have suffered an adverse outcome in hospital. Brendan Phelan, of the Department of Health, told the conference that a Harvard study found that, of every eight potentially valid claims for damages, only one was actually filed.
He suggested that one in every 100 patients in an Irish hospital is likely to suffer an adverse outcome. The majority of these cases don't end in claims.
Nonetheless, the medical profession, the insurers and the Department of Health are worried, and two groups have been set up to consider two separate proposals. The first is the introduction of a system called "enterprise liability" to deal with the insurance issue, the other is a "nofault compensation scheme" for brain-damaged infants.
The Attorney-General has made yet another, complementary, proposal, that there should be compulsory mediation before cases go to litigation.
"Enterprise liability" would mean hospitals and health boards assuming vicarious liability for the actions and omissions of their doctors and dentists, in the same way as they already do for other staff. Under this system, a claim would not be made against an individual doctor and all the staff involved in the event, but against the hospital they work in. This would cut out multiple legal teams, and arguments between the different defendants as to who had primary responsibility for the incident.
This system already exists in most common law jurisdictions, according to Phelan.
A "no-fault" compensation scheme would mean that brain damaged children, where the damage resulted from a birth injury, would receive compensation to allow them as good a quality of life as possible.
However, there are misgivings about both schemes. Murphy said that in the US state of Virginia, where the no-fault system has been in operation for 10 years, it has led to a reduction in the number of children compensated. "Cases which currently would succeed under our tort system would not succeed," he said. Among the limitations in the Virginia scheme are stipulations excluding babies born under a certain weight and before full term.
"We are concerned that the motivation for this is the reduction of costs and casting the cloak of anonymity over the negligent doctors," Murphy added. The issue of professional accountability also arises in relation to enterprise liability. Many of those who pursue medical negligence cases do not, primarily, want monetary compensation. They want to find out what happened and to get an assurance that measures will be taken to ensure it does not happen again.
Stephen McMahon is spokesman for the Irish Patients Association (IPA), which has been in existence for about five years. It has been invited on to the advisory group on enterprise liability. The IPA wants an emphasis on risk management.
"There must be accountability," McMahon said. "If there is negligence, there must be a change in practice. Risk management should pick up poor practice before it impacts on the patient. There is no point in having a near miss if the rest of the system is not aware of it."
He added that patients must be put at the centre of the health system through a patients' charter.
For Prof Brian Cusack of UCD, the issue went much deeper. "Enterprise liability is only tinkering," he told the conference. "We are looking at the distrust of the healthcare system because of the bilateral mistrust between patients and doctors. We have to restore trust at both an individual and a system level."