To fee or not to fee

September 14, 2004

TO CURE MEDICAL malpractice woes in Maryland, some taxpayer malpractice may soon be applied under the brand name "fee increase." At least that's the prescription of legislators looking for a painless solution.

It's hard to blame lawmakers for feeling a little discomfort themselves. At Gov. Robert L. Ehrlich Jr.'s urging, doctors are applying direct pressure on Annapolis to take decisive action.

Unfortunately, taking decisive action is usually what politicians do worst.

Here's the problem. Malpractice insurance rates have shot through the roof. It's getting to the point that some Maryland doctors have been forced to stop treating patients. It's particularly bad for high-risk specialties such as obstetricians. The problem has been fueled mostly by the size and number of monetary settlements paid out to malpractice victims and their families. Doctors insist that many of these awards are not justified, while victims and malpractice lawyers say otherwise.

Legislators have been over this hotly debated terrain before - and they don't much enjoy the view. Doctors and lawyers (not to mention insurance companies) are all big lobbyists and major campaign donors. Please one and you'll make a mortal enemy of the other. Doctors (and their Republican backers) want tort reform; lawyers (and a lot of Democrats) want to see bad doctors put out of business. Naturally, that promotes interest in finding a third path - namely, sticking it to the rest of us.

So it shouldn't be a surprise that state Senate President Thomas V. Mike Miller wants to set up a multimillion-dollar state fund to help pay claims - and that House Speaker Michael E. Busch and Mr. Ehrlich are showing some interest in the concept, too. The proposal would have an immediate effect on rates - perhaps even freezing them at current levels. Naturally, both the lawyers and doctors are fine with the idea. But how to pay for it? Apparently, kicking in general fund money is out of the question. That would make it too obviously taxpayer-financed, and Mr. Ehrlich won't stand for it. But fees? On that subject, the governor has shown considerable flexibility.

But which fee and how much? Proposals include adding a surcharge to driver's license renewals and increasing fines for drunken drivers. How does medical malpractice pertain to driving a car? The relationship is indirect at best. Here's the reality: It's a way for the meek politicians in Annapolis to tax without seeming to tax. And that's the kind of shell game that passes for fiscal responsibility these days.

Malpractice reform is a serious business. It tends to attract a lot of unhelpful grandstanding already, but here's a new slogan for the soapbox: Subsidizing a broken system is not reform. Long-term answers will likely involve caps on awards, mandatory mediation and changes in the way damages are calculated and paid. Perhaps a state fund can be a stop-gap, a sweetener to get permanent reform through the General Assembly. But it can't stand alone as a policy. Fixing the malpractice situation requires a little more honesty out of Annapolis. Sometimes a fee increase isn't a fee increase, it's just a plain old tax to please the politically powerful.

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