Md. lawyers attack health-care bill Group calls measure unfair to patients

March 28, 1993|By John W. Frece | John W. Frece,Staff Writer

Maryland trial lawyers yesterday strongly attacked provisions in a fast-moving health-care reform bill that would make it easier for doctors to defend themselves in costly medical malpractice cases.

A panel of lawyers representing the Maryland Trial Lawyers Association told the House Economic Matters Committee that if the legislation were enacted as written, patients would find it harder to win malpractice cases, even if doctors are clearly negligent.

The lawyers called the measure unfair and unconstitutional.

The disputed provision would establish specific guidelines for clinical care -- called "practice protocols" -- that, if followed, could raised by physicians as an affirmative defense to a malpractice charge.

The lawyers complained that part of the bill that would permit doctors to raise in court their compliance with the protocols -- but not allow a patient to raise the protocol issue unless the doctor had done so first -- was particularly unfair.

Why, the lawyers asked rhetorically, would a physician ever raise the issue unless he or she had followed the protocols? But if the physician did not, the patient would have no way to get that evidence before the court, they said.

Committee Chairman Casper R. Taylor Jr., an Allegany County Democrat, said he was sympathetic to that argument and that his committee may well change the bill so that doctors and patients would have the same right to raise the protocol issue in court.

But, he said it was unlikely his committee would follow the lawyers' advice and eliminate completely the protocol and malpractice-defense section of the legislation.

"I don't buy this stuff about it being unconstitutional," he said. "It is an important part of cost-containment, and it has to stay in the bill."

Mr. Taylor's committee quickly convened its Saturday work session to hear testimony on health-care reform legislation passed by the full Senate on Friday. With only two weeks to go before General Assembly adjournment, Mr. Taylor said he wants his committee to complete work on the Senate bill by Tuesday and get it into a House-Senate conference committee by week's end.

The legislation is similar to a bill passed by the House. It is primarily intended to change insurance company practices in ways that would make policies available to employees of small companies that now cannot afford to buy insurance or, because of the medical conditions of its employees, cannot get it at any price. More than 600,000 Marylanders are uninsured.

The Senate bill attempts to control health-care costs by setting up a commission to establish practice guidelines for physicians.

The theory is that such guidelines would keep doctors from performing unnecessary and expensive laboratory tests, X-rays or other procedures, many of them done out of fear of malpractice suits.

Physicians at yesterday's hearing said the protocols and malpractice protection would result in potentially huge savings because doctors could then refrain from practicing what is known as "defensive medicine."

As it is, said Angus Evertine, counsel to the state medical society, about 80 percent of malpractice claims in Maryland "are for one reason or another found to be without merit."

The lawyers, however, claimed the opposite of what is intended would occur: rather than curtailing health-care costs, doctors would feel compelled to follow each protocol step whether medically indicated or not, adding to the cost of health care.

Doctors already have been shielded from malpractice suits by several legislative actions the last few years, the lawyers said.

Among them were laws that require malpractice cases to be sent to an arbitration panel before going to court, that shortened the statute of limitations on filing malpractice cases, and that capped awards for "pain and suffering" in such cases at $350,000 regardless of what happened to the patient.

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