Ehrlich's malpractice proposal draws chilly response

Senate president wants stronger punishment of doctors, no limit on damages

October 27, 2004|By M. William Salganik | M. William Salganik,SUN STAFF

Trying to find a solution to Maryland's malpractice insurance problem, Gov. Robert L. Ehrlich Jr. unveiled a plan yesterday to hold down rising costs by creating stricter standards to prove medical injury and limiting award payouts to injured patients.

Although his approach is generally supported by doctors and other health providers, his proposal was immediately condemned by Senate President Thomas V. Mike Miller, who is aligned with trial lawyers on the issue. Miller likened the governor's draft legislation to "slapping someone in the face and challenging them to a duel."

Whether Ehrlich, Miller and House Speaker Michael E. Busch can reach a consensus on a plan will determine whether a special legislative session is called next month or in December to address the issue.

Action in a special session could forestall a 33 percent malpractice premium increase scheduled for most of the state's doctors Jan. 1. It would follow a 28 percent premium boost this year.

Without action, doctors and hospitals say, the increase in premiums will lead some doctors - especially those in high-risk specialties such as obstetrics - to curtail or give up their medical practices.

Ehrlich said his bill is a starting point for negotiations with legislative leaders over an issue that looms as one of the major challenges facing Annapolis. "It's stamped `draft' twice on every page for a reason," the governor said.

Miller, in an approach generally supported by trial lawyers, has stressed stronger disciplinary action against bad doctors and reform of the insurance system, without limiting the ability of injured patients to obtain damages in court.

Busch, leader of the House of Delegates, sounded a more conciliatory note than Miller did.

"It's beneficial to have a piece of legislation we can work off of," he said. "Hopefully, the governor's going to call the House and Senate leadership together to start having a dialogue."

Need for compromise

Ehrlich said the reaction of both legislative leaders was what he had expected. "Everyone needs to compromise, but this is not a bill that can be compromised down to nothing," he said.

Public awareness of the issue and pressure for a solution had increased substantially since spring, when several reform bills were killed in Senate committee, Ehrlich said. He will begin talks with Busch and Miller in the next few days, he said.

The three met two weeks ago and expressed optimism that they could work toward a package to freeze malpractice premiums and institute reforms that could bring down malpractice payouts over the next few years. During the discussion, Ehrlich said he would draft a bill.

Ehrlich's draft legislation, presented yesterday, would include:

A fund to allow Medical Mutual Liability Insurance Society of Maryland, which covers about three-quarters of the state's doctors in private practice, to drop its 33 percent premium increase and freeze its rates at the current level.

If future claims exceeded premiums paid to Medical Mutual, a doctor-owned insurance company, the fund would make up the difference.

The bill didn't identify a source of money for the fund. Busch said the governor needs to do that to win an agreement. Ehrlich said he is optimistic that the issue can be worked out with legislative leaders.

A number of provisions changing the way malpractice cases are adjudicated and claims are calculated. The governor said that would be the most difficult part of the package on which to reach consensus but that such provisions are the only way to reduce malpractice costs.

Among the proposals on "tort reform" are limiting future medical bills to Medicare and state-set hospital rates, rather than higher "list prices" for services; requiring plaintiffs to provide more documentation before cases can proceed; tightening requirements on expert medical witnesses; paying awards over time rather than in a lump sum; and limiting awards for pain and suffering to the current $650,000, ending a practice of increasing the ceiling each year for inflation.

Limits on attorney fees, now often 40 percent on the entire award, to 40 percent of the first $200,000, 33 percent of the next $200,000, 25 percent of the next $200,000 and 15 percent of any amount over $600,000. Ehrlich said that is the one major provision he hasn't previously discussed with Miller and that he realized it would be difficult to get the Senate president to agree to it.

A less-stringent standard of evidence in physician discipline cases and a requirement for hospitals to report errors. Ehrlich said he expects debate on that proposal but that it is less controversial than the other sections of his package.

Miller said the Ehrlich bill doesn't live up to the agreement reached two weeks ago. In particular, he said, it doesn't contain meaningful provisions to police doctors who injure patients, doesn't increase Medicaid reimbursements and relies on general state revenue to create a fund to hold down malpractice insurance.

All civil awards

Miller also said the governor's bill limits civil awards in all cases, not just medical malpractice. "He rewards asbestos manufacturers, drunk drivers, tobacco companies by making the cap apply across the board to all civil litigation," Miller said.

Ehrlich said he is working to identify a source of money for the premium-freeze fund and to increase payments to doctors from the state Medicaid program.

He didn't respond to all of Miller's criticisms but said, "We should not be at the point where any stakeholders should make the statement that anything is unacceptable."

Health care providers, who have been pushing for relief from rising premiums, didn't comment on Ehrlich's draft bill in detail but expressed hope that it would lead to discussions that would produce a special session before rate increases take effect.

Sun staff writer Andrew A. Green contributed to this article.

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