'Crisis' in doctor insurance disputed

Politics stymies accord on tort reform to limit malpractice premiums

3 camps concoct own remedies

July 04, 2004|By M. William Salganik | M. William Salganik,SUN STAFF

Decrying another large increase in malpractice insurance premiums, Gov. Robert L. Ehrlich Jr. stood last week at a podium set up on the blacktop near the ambulance entrance of a Towson hospital.

Fanned out behind him were more than a dozen doctors in crisp white lab coats. Over their shoulders, large red block letters atop the hospital entrance read, "EMERGENCY."

There's disagreement, however, about whether another round of premium increases - the state's largest malpractice insurer filed last week for a 41 percent increase for next year, on top of a 28 percent boost this year - constitutes an emergency.

And without agreement on whether there's a "malpractice crisis," there's been little movement by opposing forces to compromise on what the state's response should be, both in the short run and over a longer time frame.

"Twenty-eight percent constituted a looming crisis," the governor said. "Forty-one percent is an over-the-top crisis." He renewed his call for "tort reform" - changes in the legal system of assessing damages.

"We take the position that it isn't a crisis, and that the [premium] rate isn't justified," countered Dennis O'Brien, a spokesman for the Maryland Trial Lawyers Association, a politically powerful group opposed to tort reform.

Dr. Steven M. Berlin, who has been delivering babies for a quarter century - and says he will have to stop, rather than pay a malpractice premium of $160,000 next year - said it may be difficult to get opposing parties to agree on changes until patients are denied care.

(Obstetricians pay the highest premiums because so-called "bad baby" cases generate verdicts to cover a lifetime of medical costs and lost wages.)

During a previous "malpractice crisis" in the mid-1980s, said Berlin, who has offices in Lutherville, Dundalk and Fallston, "there were no docs on the Eastern Shore and Western Maryland [practicing obstetrics], and the legislature put in tort reform. An access crisis made the difference. Now, it's history repeating itself. There's going to be an access crisis again."

Even the advocates of reform, however, say the access crisis hasn't hit yet in Maryland.

A study by the federal General Accounting Office last year, looking at five states with higher malpractice insurance rates, found "reduced access to services affecting emergency surgery and newborn deliveries" in some rural areas, but also concluded, "Reports of physicians relocating to other states, retiring or closing practices were not accurate or involved relatively few physicians."

In Maryland, Ehrlich and others concede there's no evidence yet that patients are being turned away at the doors of the emergency rooms or birthing suites. They say the crisis is potential - that it's important to act before things become worse.

Despite a recent flurry of press releases, hospital photo ops, appointments of task forces, and floating of solutions, and despite the filing for another hefty malpractice premium increase, the basic politics seemed unchanged.

`Problem signs'

Ehrlich, like most Republicans in the state and nationally, is a backer of tort reform. The American Medical Association, which considers 20 states "in crisis" and 24 more, including Maryland, as "showing problem signs," has made malpractice reform its top legislative priority.

The AMA's Maryland affiliate, known as MedChi, along with hospitals and other health providers, supported an Ehrlich bill this year that would have cut the maximum "pain and suffering" damage award to $500,000 from $635,000, limited lawyer fees and changed the way economic damages, such as medical costs, are calculated and paid out.

Democrats, generally aligned with trial lawyers, are skeptical at best about tort reform. That skepticism is particularly acute in the Maryland Senate. A Senate committee killed Ehrlich's bill in March.

Ehrlich recently named a task force to study the issue and said his bill from this year should serve as a starting point for its recommendations. Senate President Thomas V. Mike Miller immediately condemned the Ehrlich group as a "biased task force," with members picked to reach the conclusion the governor wanted. The Senate has a separate committee studying malpractice issues.

Special session

While the governor said he hopes for quick consensus, allowing for a special session of the General Assembly to enact a package of reforms by fall, others predict that the opposing camps will each bring their points of view to the legislative session next January.

"What I see happening is that MedChi's going to have its bill, and the governor's going to have his task force, and the president of the Senate will have his own legislation," said Michael E. Busch, speaker of the House of Delegates. The House, which conducted a study in the spring, may have a reform package of its own.

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