Consultants plan legal fight against Government on enterprise liability plan

HOSPITAL consultants are building up a war chest to mount a legal challenge against the Government if it introduces enterprise liability from next month.

Irish Hospital Consultant Association (IHCA) secretary general Finbarr Fitzpatrick said they will also withdraw from Hanly contract talks if the new Clinical Indemnity Scheme (CIS) is unilaterally imposed. IHCA members are being canvassed for a €500-a-head contribution to fund the possible legal challenge.

The CIS (enterprise liability) scheme proposes the State indemnify consultants and hospitals as a single entity against claims from patients. Until now, consultants have paid a premium to either the Medical Defence Union (MDU) or the Medical Protection Society (MPS) for indemnity against malpractice or negligence claims.

Mr Fitzpatrick said the introduction of enterprise liability would have significant financial implications for the 200 consultants who work exclusively in the private sector and the 600 consultants who combine public and private work.

The CIS will only cover consultants who carry out public work in public hospitals or public work in private hospitals. It will not apply to consultants in private practice, some of whom may have difficulty continuing to work as a result. Such consultants would have to continue to source insurance from the MDU or the MPS. Current MDU/MPS subscription costs are in the region of €78,000 a year, up to 90% of which is reimbursed by the Government.

A second difficulty faced by the consultants is the issue of historical liabilities. The Government will only take on claims after the new enterprise liability scheme kicks in. Claims which go back a number of years will not be defended by the State because they would entail payouts of up to €400 million. Mr Fitzpatrick said the MDU has also said it may refuse to fund historic liability claims in the future, leaving consultants further exposed. Claims in obstetrics are of particular concern and pay-outs can be in the millions in cerebral palsy or other brain damage cases.

Hospital consultants are also concerned enterprise liability will make them unable to act as advocates on behalf of their patients in situations where they feel hospital facilities are inadequate or unsafe.

“We are concerned that enterprise liability isn’t offering protection to the patient in the event of the MDU refusing to pay out in the future,” Mr Fitzpatrick said. He said they were also afraid the cost of premiums in the private sector would “go through the roof” placing private work in public hospitals under threat.

“The public hospitals cannot do without the private sector, it represents 12% of total admissions.”

Mr Fitzpatrick said they were not against enterprise liability in principle but against its introduction without agreement. He told the Irish Medical Times that IHCA members would not enter into contract talks, necessary to allow the implementation of the Hanly report, if the scheme was introduced without agreement. A spokeswoman for Minister Micheál Martin said he planned to go ahead with enterprise liability in the New Year.