Governor loses vote on health lawsuits

Senate committee kills malpractice reform bill

House weighs alternatives

March 20, 2004|By M. William Salganik | M. William Salganik,SUN STAFF

A solution to the rising malpractice insurance rates that have prompted some doctors to leave their practices remained uncertain in Annapolis yesterday after a Senate committee killed a reform bill backed by Gov. Robert L. Ehrlich Jr., and the House of Delegates pressed forward with its own package.

The most likely prospect this session are some "incremental steps" with the thorniest issues pushed off for study and possible action next year, said House Speaker Michael E. Busch after the Senate Judicial Proceedings Committee struck down the governor's bill on a 7-4 vote.

"We're still going to try to move something," Busch said. "Considering the Senate killed the bill, we'd try to keep out [of a House package] some of the things that are so controversial they'd kill the bill."

Legislation is being drafted to embody the recommendations of a House work group - nine delegates representing three separate committees - which has been studying malpractice issues for the past several weeks.

Del. Anthony G. Brown, a Prince George's County Democrat who chaired the work group, described its product as "a well-rounded package" that incorporated some elements limiting damages to plaintiffs in malpractice suits and some modifying insurance rates.

Both the Senate and the Ehrlich administration promised to look at the House package, but some of the strongest backers of malpractice reform - groups representing doctors and hospitals - gave the still-developing package a cool reception.

Yesterday's developments left prospects for action in this session cloudy.

"Things are fluid - but they're moving," said Steven B. Larsen, who chairs an alliance of doctors, hospitals and others pressing for reform.

Larsen said the House package contained some constructive provisions but "the items that were really going to bring savings are not there." His coalition had supported the governor's bill, which would have limited damages and lawyers' fees in malpractice cases.

Meanwhile, Joseph A. Schwartz 3rd, the lobbyist for the state medical society, called the House effort "a poor package - unacceptable."

"Overall, we believe its detrimental, and maybe the best thing is just to call it off for more study," he said.

Both the Ehrlich administration and a key Senate committee chairman, however, said the House package could serve as a possible basis for action in this session - although both said they would need to see final legislative language before deciding whether to back the whole package or any pieces of it.

The administration "has had productive conversations with House members and will continue to work with them on a reasonable bill," said Ehrlich spokesman Henry Fawell. "But any discussions need to be in the context that this is a crisis."

Sen. Brian E. Frosh, the Montgomery County Democrat who chairs the Judicial Proceedings Committee, said he's not convinced rising malpractice claims represent a long-term crisis, rather than a temporary spike in claims.

While the House package was being assembled, Medical Mutual Liability Insurance Society of Maryland, the physician-owned company that provides malpractice coverage for most of the state's doctors, was floating a different remedy. Med Mutual said it could moderate its rates if the state would agree to pay higher-than-expected claims, according to Busch.

Busch and Frosh both said they were willing to consider the concept. But Pegeen Townsend, a lobbyist for the Maryland Hospital Association, said it was unclear how the Med Mutual plan would help hospitals and nursing homes, which are also facing escalating premiums, and how a state commitment to pay excess claims would figure in resolving the state's budget gap.

If the state were to accept some version of the Med Mutual plan, it would not have to begin paying claims for four years or more, since most malpractice claims take years to be adjudicated, said several people familiar with the proposal.

The House package recommended by the work group, according to several sources, would include:

Mandatory mediation or arbitration in malpractice cases, in an effort to hold down the costs of contesting lawsuits.

An end to a current provision allowing double "pain and suffering" payouts in death cases. Pain and suffering claims are now capped at $635,000, unless the patient dies. Ehrlich and Larsen's coalition sought to reduce the cap, but the proposed reduction is not in the House package.

Patients would not be able to recover costs already paid by health insurers. Currently, patients who collect in malpractice cases pay back the insurer from the damages they collect. This would have the effect of shifting some costs from the malpractice insurers to the health insurers.

A so-called "rate compression" provision cutting premiums in high-risk specialties, particularly obstetrics and neurosurgery, but raising them for other doctors so the insurers would have the same amount of money to pay claims.

Senate President Thomas V. Mike Miller and the Maryland Trial Lawyers Association have supported rate compression.

However, Schwartz, the medical society lobbyist, said, "It would raise the rates on 90 percent of the doctors in Maryland, and that's a pretty poor excuse for malpractice reform."

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