Increasing indemnity costs threaten private consultants

Consultants in independent private practice say they are facing unsustainable costs amid rising clinical negligence claims. Danielle Barron reports

The steep rise in clinical negligence claims in recent years has directly translated into independent specialist consultants paying “mind-bending” sums for their clinical indemnity insurance, according to the Medical and Dental Consultants Association (MDCA). The Association believes these spiralling costs will have the net result of driving experienced specialists out of business – and out of the health system.

Costs

The MDCA has led a number of political engagements on behalf of its members, who say the current situation has them at breaking point. The representative body recently commissioned Mazars to conduct research on the issue and the results were stark. Over the past three years, one-in-five respondents had seen costs rise by 30 per cent with another fifth seeing rises of between 16 and 30 per cent.

The relatively recent surge in the cost of medical negligence claims has been criticised by medics. They argue protracted claims cause patients and doctors distress as well as sending legal costs soaring. Recent data from the State Claims Agency showed that the total cost of clinical negligence claims rose from €13.15 million in 2009 to €374 million in 2022.

Earlier this year, research carried out by the Medical Protection Society suggested that a medical negligence claim in Ireland takes 1,462 days on average to resolve. The net result is soaring premiums for independent consultants, who say they are currently forced to pass on these costs to their patients, but ultimately fear they will be driven out of business. Four in 10 of those who responded to the survey said they would consider stopping their activity as a consultant, saying emigration or retirement would be preferable options.

Case for reform

The MDCA states clinicians, patients, plaintiffs, and defendants are all losing out under the current system as costs are allowed to spiral out of control. As part of its endeavours to advocate for their members, the Association has made recommendations it believes would help to drive down the rising cost of clinical indemnity.

According to MDCA President Mr John Curran, however, straightforward solutions are being ignored, for various reasons. A Consultant in Plastic Surgery, who works in Bon Secours in Tralee and Limerick, Mr Curran said his own insurance has risen by 83 per cent in the past five years. He describes the current scenario as “a runaway train”.

“We are a business as well as being a medical practice, and the cost of business is going up, we all know that,” he told the Medical Independent (MI). “But this is a very specific cost that is subject to a very specific type of inflation that is not linked to generalised inflation. This is the sort of inflation that has the Government paying out for claims in excess of State caps – four times as much this year so far as they paid in the whole of 2019. While it may not be politically expedient to help independent consultants, this thing that is hurting us is hitting the Exchequer too. There is significant value for the Government in reforming this outrageously dysfunctional situation – it needs to be reined in.”

The MDCA is asking that pre-action protocols, already legislated for since 2015 in the Legal Services Regulation Act, finally be commenced. These would provide a set of guidelines on the various steps a court expects parties to take before claims can commence, and would help to avoid protracted legal battles.

“The Government has effective levers at their disposal and in my opinion have a responsibility to act,” Mr Curran said. “And if there is any appetite for action on pre-action protocols in an effort to control the spiralling and exponential rise in cost of clinical negligence claims, then it stands to reason that the next obvious thing to look at is the State caps.”

He added that if the threshold for State caps was reduced, this would also give “comfort” to indemnifiers and some leeway within which to start reducing insurance premiums. Yet this seems unlikely in the short-term at least, despite the MDCA meeting with Department of Health officials.

“The distance between State caps and their intended purpose continues to widen. But what we have heard is that, politically, there is not much appetite for looking at the State caps and we find that to be unacceptable.”

Dr Justin Lane, a Consultant in Pain Medicine and Anaesthesiology at Bon Secours and Blackrock Health, said independently practising consultants are uniquely exposed, noting that they can find themselves in “grey areas” when it comes to their indemnity, especially when public patients are treated in private facilities.

“And because there is a very restrictive market in terms of medical indemnity here in Ireland and that’s always been a prickly subject, we feel that in some instances we may be subsidising our HSE contract-holding colleagues,” Dr Lane told MI.

Frustration

Many other independent consultants are frustrated by their soaring indemnity costs and the lack of action on behalf of the Government. Mr Asam Ishtiaq, a Consultant General Surgeon at UPMC Whitfield Hospital in Waterford, has been in full-time independent practice since 2006. He pointed out that medico-legal litigation for negligence in Ireland is a relatively new phenomenon – it is less than 40 years since the first reported case.

“Adverse clinical incidents are part and parcel of modern-day medicine – we have hundreds of thousands of interactions between doctors and patients in the health system and only a very small number end up in the courts of law as part of claims of negligence against doctors,” Mr Ishtiaq told MI.

“We need to explore how other health systems like New Zealand or Australia deal with this issue. For example, for some reason it was decided that these cases are dealt with in the High Court – does this need to continue?”

Mr Ishtiaq criticised how medical negligence claims can go on for many years with no resolution. He said one of the proposals of the MDCA is to bring medical negligence claims under the remit of the Personal Injuries Assessment Board, which has been instrumental in reducing the time taken to deal with personal injury claims.

“A ‘medical injuries assessment board’ could expedite the process, decrease the cost and delays for the claimant,” Mr Ishtiaq argued. He noted that many other countries use a similar panel of experts to assess claims before they reach the High Court or comparable body.

“We know there are many consultants who are seeing their indemnity costs rise exponentially compared to their peer group because of an ongoing claim that isn’t resolved. There is a snowball effect going on – things have gotten worse over the past decade and we know we will be in a worse position over the coming decade if we don’t make changes to the system now. We could see a scenario where many consultants have to close their clinical practice because it will no longer be viable.”

One independent consultant, who did not wish to be named, has seen his own indemnity costs almost quadruple in the space of two years as a result of ongoing claims. “One case has been open for almost eight years and the legal profession are still arguing it,” he said.

Another case of a patient experiencing a known complication of a minor procedure, having given full consent, was settled out of court for a large sum, despite the consultant wishing to mount a defence.

“I wanted to defend it to say there was nothing else that anyone could have done, but the legal profession would not bring it to court,” he says. “This means that solicitors and plaintiffs know that if anything at all goes wrong, you should bring a case because it will not be defended and you will get a payout. But because of that my indemnity has gone through the roof and I have almost been put out of practice.”

According to the MDCA, there is a very real danger that many other independent consultants will experience the same fate. Mr Curran said this would be “an incalculable loss” to the Irish health service.

The MDCA is seeing its membership grow as it focuses on this and other issues affecting independent consultants, according to Mr Curran.

“We are well-resourced and organised and ambitious – we are a young organisation, but we are growing consistently and gaining support the whole time.”