Malpractice play

December 21, 2004

GOV. ROBERT L. Ehrlich Jr. has called on lawmakers to convene in a special session next week in Annapolis. Apparently, this is the state of Maryland's medical malpractice insurance crisis: not bad enough for Mr. Ehrlich and General Assembly leaders to agree to a solution at any point during the last eight months or so, but so bad that it can't wait two more weeks for the regular 90-day session to begin. Hmm. What's wrong with this picture?

The truth is, Maryland taxpayers are footing the bill for a little two-day political theater. If successful, the politicians will be able to show doctors (and voters) how much they care - and during a slow TV news week to boot. It looks like they'll pass some genuine tort reforms and create a taxpayer-financed fund to keep down malpractice rates. This latter measure could have the most immediate effect on insurance costs, perhaps rolling back all or a portion of the recent 33 percent rate increase by the Medical Mutual Liability Insurance Society of Maryland, the state's largest malpractice insurer. Could the whole mess have been approved Jan. 12 and accomplished exactly the same thing? Almost certainly.

But that's putting an optimistic spin on things. Mr. Ehrlich has not hammered out all the details of a potential compromise with Senate President Thomas V. Mike Miller and House Speaker Michael E. Busch. Their biggest sticking point: How to pay for the special fund to cover excess claims. Mr. Ehrlich wants it to come from the state's general fund, while the Democrats prefer a 2 percent tax on health maintenance organization premiums. Other health insurers pay it, they argue, so why shouldn't HMOs?

The HMO tax is a sensible solution, but Mr. Ehrlich is opposed to it because it represents a new tax (well, technically, it's more like the repeal of a tax exemption, but this administration has an orthodox view of such matters). So where is the opportunity for a compromise? None that we've heard so far. Taking it out of the general fund is not acceptable as long as Maryland continues to experience budget shortfalls. The state is already anticipating a $400 million deficit for the upcoming fiscal year. Spending an extra $60 million or more to keep affluent doctors, trial lawyers and insurance executives happy while cutting who knows what (health care for the poor is a distinct possibility) from next year's budget would be irresponsible in the extreme.

So when it comes to a special session, we'll hope for the best but expect the worst. Putting a lid on soaring malpractice rates would be quite a victory for Mr. Ehrlich, whose list of accomplishments at midpoint in his four-year term isn't exactly long. While another failure - particularly if it's driven by the governor's stubbornly one-note, slots-only approach to government finance - would be disastrous.

But then maybe that's why they call the session "special." Such high-stakes gambling is what good political theater is all about.

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