In an exclusive interview with the JEP, Dr Nigel Minihane, head of the Primary Care Body in Jersey, which represents GPs, also raised fears that unprecedented pay-outs could have wide-ranging consequences for many businesses and society.
The concerns echo those aired by expert UK lawyers following a personal-injury claim in Guernsey, the impact of which is already being seen across the Channel Islands. The potential consequences, it is claimed, include doctors being unable to practise in Jersey as professional-indemnity insurance premiums rocket, or insurance companies pulling out of the Island altogether.
Dr Minihane said that evidence was sent to the then Home Affairs Minister, Kristina Moore, with possible consequences listed, such as sharp rises in public-liability premiums for all businesses, as well as for car insurance costs, making them prohibitively expensive. However, Deputy Moore said she encouraged action.
Jersey’s Primary Care Body raised the issue of unlimited damages claims in 2015 and the Jersey Medical Society and Guernsey Medical Association jointly commissioned a report from Hempsons, a UK-based specialist health and social care law firm. The report was published this year, before the current case came into the public domain and called the situation ‘a ticking time bomb’.
Dr Minihane told the JEP: ‘The worst thing about all of this is that we and Guernsey brought it to the attention of both governments in 2015. We sent them an official paper which we commissioned from Hempsons in March of this year and we didn’t get an acknowledgement of that paper until last week.’
Jersey’s Home Affairs Minister at the time, Senator Kristina Moore, received the report earlier this year, prior to the current court case. The report warned: ‘If the opportunity to reform the system is not taken, then the islands not only risk losing their health services and the populations who rely on them, but will also risk needing to find millions of pounds in damages to settle valid claims.’
It went on to say: ‘The fact that the problem is still largely theoretical does not alter the fundamental message of this advice: this is a crisis you will waste at your peril.’
Dr Minihane has also written to the Attorney General, Robert MacRae. In the letter, he said: ‘GPs, like all practising medical professionals, are required by their regulator, the General Medical Council, to obtain professional indemnity insurance and cannot practise without it.
‘The cost of that insurance will take account of potential damages awards in personal injury cases within a jurisdiction. The impact of the potential damages award, as reported by the press in relation to Plaintiff Two and Plaintiff Three [in the £238m claim], will be devastating on medical professional indemnity insurance given the size of the award.
‘As the March 2018 Hempsons’ paper details, it may mean that some doctors will be unable to obtain professional indemnity cover and/or it will be prohibitively expensive for the rest of us. Obstetricians are at particular risk given the high level of damages awards in birth injury cases. If obstetricians cannot obtain or afford insurance, how will Jersey manage without doctors to deliver babies?’
Dr Minihane added: ‘It is right and proper that those of us in our society who have been wrongly damaged deserve recompense, but not at the expense of the destruction of the community in which they live.’ He said that his stance was supported by 50 general practitioners, who met last week to discuss the issue.
The record claim against the Health Minister relates to two siblings seeking damages after suffering a catalogue of sexual, physical and emotional abuse while in their family home. The defence has admitted the siblings should have been taken into care sooner, but disputes the level of damages.
Dr Minihane says that ministers should have consulted widely on the problems that were highlighted to them both by doctors and Hempsons.
He said: ‘The decision is not solely within the realms of the judiciary. It is political, and wider society deserves the right to contribute to its process. Should the court grant substantial damages, whether by means of periodical payments or not, the consequences are dire.
‘A growing proportion of our patients are living in pain or are unable to contribute economically because of growing hospital waiting lists. How do we explain to them, and others to follow, that a decision was taken to deny them access to timely care without more widespread debate?’
The precedent for rising insurance indemnity costs in the Channel Islands was set in 2012, when a Guernsey case, Helmut v Simon, saw a large personal injury pay-out. GP indemnities doubled as a consequence and car insurance premiums rose in both Jersey and Guernsey.
One obstetrician in Guernsey was told his indemnity would be £80,000 a year and as a result he has had to stop practising, according to Dr Minihane. The unlimited nature of claims is coupled with the fact that there is no ability to award periodic payments, something that has been raised by Mr MacRae in the Royal Court.
The way lump sums are currently awarded – to take into account inflation – means that initial awards are significantly increased, so instead of assuming that a lump-sum pay-out would earn interest from investments, it is now assumed to fail to match inflation. The Hempsons report quotes an example case award of £8.4 million that will rise to £17.5 million as a result.
