Increasing medical negligence payouts have prompted a Government plan to speed up such claims. But hospital consultants argue that such a move will leave them vulnerable. Dr Muiris Houston, Medical Correspondent, reports
This week's award of €4.5 million in a personal injuries claim to a brain damaged seven-year-old girl - Haya Shiri Kraft - was one of the largest settlements ever made in the State. It arose out of the circumstances surrounding the child's birth at the National Maternity Hospital in 1995.
The size of the settlement in this case - which was agreed without an admission of liability by the hospital or the obstetricians - will not surprise those who have closely observed the steady rise in medical negligence awards. Obstetric litigation, involving harm to a human being at the beginning of life, has always been the source of the highest payouts. Regardless of blame, the need to provide 24-hour care for the lifetime of a severely disabled person costs a lot of money.
Cerebral palsy is the technical name for a relatively rare movement disorder that becomes apparent by the child's second or third year of life. While there are several different forms of cerebral palsy - most of which involve uncontrollable movements - only one form is related to lack of oxygen to the brain during childbirth. It is characterised by spasticity involving all four limbs.
It has generally been accepted that brain damage which becomes apparent in the first few months of life is the result of a lack of oxygen to the baby during labour and delivery.
However, a study published this week in the US suggests that birth asphyxia accounts for 10 per cent of cases of brain damage at most. The findings, compiled by an expert panel from the American College of Obstetricians and the American Academy of Paediatricians, suggest that in the vast majority of children who develop cerebral palsy it is because of pre-birth problems. Maternal infection while the baby is in the womb, blood clotting disorders and strokes have emerged as other possible causes of damage to the developing brain.
The individual data which is summarised in the new report has been known to experts for some time. However, this is the first time it has been analysed collectively. According to the authors, "the true causes of cerebral palsy have yet to be recognised by most doctors, parents and lawyers".
In the US, medical liability awards average $6 million. But individual awards as high as $80 million for a birth with a poor outcome have prompted obstetricians in several states to leave the speciality. There is a particular crisis in New York State, where no doctor practises obstetrics in seven of its 62 counties. In addition 50 per cent of those who completed obstetrics training in New York last year have left the State. The reason is that at present 43 per cent of a New York obstetrician's fee for delivering a baby goes towards malpractice insurance - an average premium of $1,429 per delivery.
The chief executive of the Medical Defence Union (MDU) - one of the two organisations in Ireland that provide insurance to doctors against claims for medical malpractice - has said that no one could have predicted the meteoric rise in obstetric claims throughout the 1990s. "Given the sums the MDU has paid out in recent years on behalf of obstetrician members, it would have had to have taken a subscription from them in the 1980s which was far in excess of their salaries", Dr Michael Saunders says. He adds that when the MDU reviewed the cost of obstetric claims arising from incidents in 1990, it calculated it would have had to charge a subscription in that year of £114,000, instead of the £6,534 charged. An indication of the scale of the problem was that an obstetricians salary at the time was in the region of £30,000.
Although the MDU no longer insures obstetricians in the Republic it is estimated that the premium it would need to charge for 2003 would be more than €500,000 per specialist.
Medical experts reckon that cerebral palsy affects two in 1,000 births. In the Republic, this equates to 110 children each year who will be handicapped arising from the condition. It is estimated that approximately 10 of these will lead to legal action, with each resulting in a payment of between €3 million and €5 million. However, it only takes one or two additional cases a year for the pre-calculated liability to change dramatically.
All of which leads to the Government's desire to implement a new system for dealing with clinical error claims. It has come up with the concept of enterprise liability. According to its plan, the new scheme would treat both the doctor and the hospital where the incident occurred as a single entity, or enterprise. The idea is that rather than have two sets of solicitors and barristers defending the claim, a single defence team would suffice and costs would drop. The State Claims Agency reckons it can build up a database of all claims which it says will help it defend new claims more appropriately. The new agency will also develop a national risk management strategy for the health care sector.
However, hospital consultants have not yet agreed to an enterprise liability approach to the problem. The Irish Hospital Consultants Association (IHCA), while accepting that enterprise liability is inevitable in some form, has deep reservations about the proposal not to include private medical practice within its remit.
Consultants are also unhappy about the not insignificant problem of historical liability - who will pay for claims made about events which precede the enterprise scheme launch date? And as Dr Tim Lynch, a consultant neurologist at the Mater Hospital wrote in a letter in yesterday's Irish Times: "(under enterprise liability) consultants will cease to be insured for good Samaritan work, coroners court work, inquests, administrative negligence, needle stick injuries, Medical Council complaints, defamation or any disciplinary action by a health board".
Whatever method of insurance is introduced in the future, consideration must equally be given to the concept of "no fault" compensation, especially in obstetric cases. It is simply not right that under our present adversarial system parents and families with legitimate claims are forced to wait three to five years for compensation needed to improve the lives of children with cerebral palsy.