Case could pave way to end €400m medical cover row

THE High Court is due to make a judgment shortly in a test case aimed at ending the two-year €400 million row between hospital consultants and their former insurer, the Medical Defence Union, over who should provide cover in medical malpractice cases.

The High Court is due to issue a judgment on whether Irish courts have the jurisdiction to decide the "appropriateness" of the MDU's refusal to provide indemnity cover to hundreds of consultants facing malpractice law suits.

But whatever the judgement is, it is likely to be appealed to the Supreme Court. It could take up to a year before this court makes a final ruling.

This row centres around the refusal of the MDU to provide cover to consultants who had been paying premiums to the MDU when the alleged malpractice took place. In hundreds of cases mounted in the past two years, the insurer has argued that the Department of Health now should cover these "historic liabilities" under its new insurance scheme which began in February 2004.

It's estimated that payouts in these cases could cost up to €400 million.

This decision to refuse cover sent the consultants to the brink of industrial action last year, but the Department of Health stepped in at the last minute to assure them that no consultant would go uncovered.

High Court President Mr Justice Joseph Finnegan is due to make a judgement on jurisdiction after the MDU argued in a malpractice case against obstetrician Raymond Howard that it was up to the English courts to decide on the "appropriateness" of its refusal to provide indemnity cover.

The Chief State Solicitor had issued proceedings against the MDU and MDU Services Ireland Ltd on the basis that he believed it was inappropriate to withdraw cover from Dr Howard.

The malpractice case taken by Nicole Hassett through her mother Orla Hassett against the South-Eastern Health Board was decided at the end of last year. Nicole, who has cerebral palsy, was awarded €3.75m in a settlement.

The SEHB now wants the MDU to cover the payment. The case is due back for hearing on March 20.

The key issue is whether or not is "appropriate" for the MDU to withdraw cover. If the courts decide it is not appropriate, it will be a major victory for the consultants and the Department of Health.