The compromise

December 31, 2004

WORKING INTO the wee hours yesterday morning, the General Assembly wrapped up its two-day special session by approving legislation to make malpractice insurance more affordable for doctors. The bill would roll back a planned malpractice insurance rate increase from 33 percent to 5 percent for the coming year. It would accomplish this chiefly by establishing a new fund to underwrite the cost of insurance. And the legislation would pay for this fund by closing a loophole - an exemption from the state's 2 percent premium tax that health maintenance organizations have benefited from since the 1970s.

Gov. Robert L. Ehrlich Jr. has already promised to veto the bill, and we think this is an unfortunate - and hasty - decision. True, the plan does not include as much tort reform as the governor's original proposal or what the House of Delegates sought or, frankly, as much as we would have liked. But it is preferable to the legislation the state Senate first offered. It is nothing more or less than a compromise.

To suggest the complex 79-page bill does not include significant reform is untruthful. Most important, it would cut in half the limit for pain-and-suffering damages in wrongful-death cases. That's a potential $800,000 in savings per case. There would be tighter limits on the qualifications of medical experts and higher standards required to bring a malpractice case to court. Apologies made by doctors couldn't be used against them in litigation, and the board that disciplines doctors would be strengthened.

Mr. Ehrlich is unlikely to oppose any of those reforms. What he's most upset about is how the General Assembly chose to finance its plan. While Mr. Ehrlich supports the concept of a taxpayer-financed stopgap fund, he doesn't like the repeal of the HMO exemption to pay for it. That's short-sighted. Mr. Ehrlich never offered a realistic alternative source of financing. He wanted to take money from elsewhere in the budget. But what exactly would get cut? He has never said, and lawmakers didn't want to expand the state's sizable budget deficit.

The governor will no doubt fulfill his pledge to veto the bill. But he's wrong to think that he'll get a second chance at reform in the next legislative session. The House and Senate approved this bill by a three-fifths majority (even without a handful of House Democrats in attendance). That should give them more than enough votes to override any veto. The reforms will stand.

In retrospect, might stronger reforms have been possible? Maybe. But Mr. Ehrlich would have had to set aside his opposition to the HMO tax and align himself with House Speaker Michael E. Busch to put greater pressure on the Senate. That never happened, and the governor has only himself to blame. Once again, Marylanders have been poorly served by Mr. Ehrlich's rigid, doctrinaire attitude toward state finances. With this kind of leadership vacuum, the legislature had little choice but to cobble together a respectable, if less-than-perfect, alternative.

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