Hospital consultants threaten to withdraw from contract talks
Under the new Enterprise Liability Scheme, the State will take over responsibility for insuring hospital consultants from two British firms, the Medical Defence Union (MDU) and the Medical Protection Society (MPS).
The MDU has threatened not to honour a malpractice award against an Irish consultant in the future, if it feels the premiums paid by the doctor do not cover the award. Mr Martin has threatened to challenge any move by them not to pay a malpractice award in British courts, because he said the historic liabilities for Irish consultants could run to €800 million
Mr Martin said he would pay the legal cost of any Irish consultant who has to force the MDU to pay his malpractice award.
However, the Irish Hospital Consultants Association (IHCA) believes this strategy is too high risk, because the minister's legal advice has not recommended this action. “Our legal adviser has seen the minister's briefing documents on the historic liabilities issue and they have recommended that he does not take on the MDU in the British courts,” said IHCA general secretary Finbarr Fitzpatrick.
The legal briefing cited a case taken by a British obstetrician against the MDU in 1978, when it refused to cover a malpractice award against him and the consultant lost the case because the onus of proof was on him to show the Medical Defence Union was refusing to pay, said Mr Fitzpatrick.
The same thing will happen an Irish obstetrician if he has to prove in British courts the MDU is refusing to pay his malpractice award, says the IHCA.
“Even if the minister pays the full legal costs of a test case, we are still left in a limbo because we do not know who is going to pay the cost of the subsequent malpractice award that will then be taken against an Irish consultant courts here,” said Mr Fitzpatrick.
The IHCA called on Mr Martin yesterday to re-open negotiations with the MDU to agree a settlement which would see them paying the first €1 million of a historic award against an obstetrician and the minister paying the remainder.
“The minister has broken his pledge to the IHCA not to change the way of indemnifying consultants without prior agreement. How can he expect us to negotiate a new contract with him in good faith on the very day that he is breaking his pledge to us on February 1,” said Mr Fitzpatrick.
The Department of Health last night rejected the IHCA claims that the minister had broken his agreement with them not to sign any deal without their agreement.
The Enterprise Liability scheme is Government policy since 1999 and the minister hoped he could reach an agreement with the consultants, but did not give any guarantees not to proceed without agreement, his spokeswoman said.
She would not comment on IHCA claims that the department had received legal advice not to proceed with a test case against the MDU in the British courts. “Our legal advice is from the Attorney General. We are confident that is sufficient,” said the spokeswoman.
Asked why they would not try to negotiate another deal on historic liabilities with the MDU, she said: “We have tried to negotiate with the MDU and failed to reach agreement. The most they would offer on historic liabilities was €60m over five years.”
The department could not accept that, because its independent actuarial advise is the historical liabilities could cost €400m-€800m.
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