‘WELL MAMA, WELL baby,’ is the shared objective of modern maternity care. When I was having my children, I was preoccupied with the risk of birth injury, among other health risks.
Like most mothers, my priority was the safe delivery of my baby.
My worries were skewed by the bias that comes from meeting children and families in the course of my work who have been affected by adverse events during pregnancy or birth. But the incidence of birth injury is low, with 94 maternity-related events reported in 2023 out of 55,000 births.
Each baby born with a brain injury needs appropriate medical care and family support for the duration of their life. That is incontestable, no matter what has caused the brain injury.
Yet, incredibly, the responsibility for this care is disputed in our health system. It is contested by bringing a claim through the courts. This subjects a family to years of waiting and repeated testimony on the birth and development of their child. The delays and multiple representations also rack up legal costs.
Obstetricians pay for professional insurance to cover these claims, but due to the spiralling costs of litigation, commercial indemnifiers threatened to withdraw from the market several years ago. The State Claims Agency stepped in to provide insurance for public maternity services, with the cost paid instead by the taxpayer.
The cost of individual professional insurance for high-risk specialities like obstetrics is now capped, with the state picking up the rest. Insurance for completely private care in a facility like Mount Carmel Hospital became no longer financially viable as it was outside this state indemnity, and the hospital closed in 2014.
Instead of intervening in the system of compensation for families, the state continued to shoulder the burden, which has grown to €1.8 billion over the last five years. This is paid out from the overall health budget. If this cost was reined in by reform of the compensation system, these billions could be used to build much-needed healthcare capacity.
Escalating cost of State vs. families
The SCA recently appeared in front of the Oireachtas Joint Committee on Health to explain the rising cost of covering settlements for harm arising from medical treatment. They attributed the bulk of the spend to legal costs and fees for expert witness reports.
Each year, there are a small number of settlements for infant brain injuries, ranging from 20k to €20 million, depending on the severity. Contrary to what many believe, families receive relatively little of the billions paid out by the SCA, and they can be waiting up to ten years to receive compensation. Life with a child significantly affected by a brain injury can be challenging, and the system as it currently operates does not seem to prioritise their needs.
Calls for reform of this compensation system are not new. There are more efficient and effective models in common law countries such as New Zealand, which could provide direction.
Previous health minister Stephen Donnelly asked obstetrician, Dr Rhona Mahony, to chair an expert group to advise on reform of the process whereby families access fair compensation and care for a child with birth-related brain injury. In 2024, that interdisciplinary group published wide-ranging recommendations.
Two years later, these sensible recommendations for significant change lie largely unimplemented. They included periodic payments to families and a greater use of mediation rather than adversarial submissions in court.
Many of the recommended steps were not novel and have already been introduced in other jurisdictions, including the UK. It is unclear why more of the reforms have not yet happened here. It may be because the reforms require the support and action of two government departments, justice and health.
There is space for private care, if done correctly
If the cost of compensating families for infant brain injury came down, the insurance needed to cover fair settlement would decrease. This might make the provision of private maternity services more financially attractive to a private hospital and would meet the demand among some women for private care.
There are additional patient safety concerns which would have to be addressed if a private maternity service were to be newly established, as the course of labour can change direction suddenly and require immediate intervention. For this reason, it would be necessary to co-locate with a public maternity hospital.
Without major insurance and legal system reform, however, a private maternity hospital is simply not economically feasible. Although that thwarts the wishes of women who want private maternity care, that is not the biggest issue.
The real issue is the billions being paid to an adversarial system which takes the claim to court and contests a family’s right to reasonable compensation. That large slice of the health budget could be better used to support the entire population in meeting its health and social care needs, not only maternity care.
Dr Suzanne Crowe is President of the Medical Council and a consultant in paediatric intensive care in Children’s Health Ireland Crumlin.