What is Enterprise Liability?
Under enterprise liability a health board, hospital or other agency providing health care services accepts responsibility for the actions of all staff involved in the provision of clinical services. This means that when a patient, who believes that they have suffered an injury, or whose illness has been wrongly diagnosed or treated, wishes to seek compensation for any loss or suffering, they will seek that from the health board or other body involved. They will not have to identify and sue individually all of the doctors involved in their care and treatment. Other than consultants, every other group working in the hospital setting have signed up to Enterprise Liability.
Previously a patient or relative seeking redress would have to identify and separately sue all of those involved because they all had separate insurance cover. As a result all of the parties being sued would pass the details on to their respective insurers. The insurers would then instruct their solicitors to investigate the events surrounding the claim. This involved a significant duplication of effort and expense. Under that system each of the parties involved in defending the claim would seek to place some or all of the responsibility for what happened on someone else.
This process was highly destructive of relationships between professional staff in hospitals. doctors, nurses and other staff who had collaborated in looking after the patient now proceeded, at the insistence of their separate insurers and their lawyers, to blame each other for what had happened. The whole process would drag on while the insurers disputed what had happened and who was responsible. In the meantime the patient waited for years for the various parties involved to resolve their differences. However by that stage all of the parties, including the unfortunate patient, had run up huge legal and other expenses. As it happened the taxpayer paid for much of this wasted effort as the bulk of the insurance and indemnity costs of the various defendants were borne by the Exchequer.
In 1999 the Government decided that the practice of having separate insurance arrangements for hospitals and doctors should cease and be replaced by a single unified system for insuring against the cost of clinical claims. Systems in other countries were looked at, and it was decided that a system based on the principle of enterprise liability best suited our needs.
One of the questions which had to be resolved at an early stage was whether consultants´ private practice in public hospitals should be covered by the new scheme. In other similar schemes, such as those operating in England and Scotland, consultants´ private practice in NHS hospitals is not covered and they must purchase separate professional indemnity insurance cover for this. The Government here was mindful of the complementary roles of the public and private healthcare systems in Ireland and decided that enterprise liability should cover consultants´ private practice in public hospitals. This decision is of enormous benefit to all consultants who work in the public system as it means they do not have to buy separate insurance cover for their often extensive private practice in public hospitals.
All consultants who work in the public hospital system now have a secure State-backed indemnity for most of their work. This is being provided at no cost to them. They no longer face the prospect of having an insurance companying scrutinising the small print of a policy document to see if a claim should be covered. Nor do they have to live with the uncertainty associated with the discretionary cover provided by the medical defence organisations.