ANNAPOLIS – Despite passing a malpractice reform bill during a recent special legislative session, many Maryland lawmakers agree with lobbyists and doctors’ advocates that the new law will not adequately solve the state’s medical liability crisis in the long run.
Seeking to tweak the existing law, lawmakers have thus introduced several bills since the regular session started Jan. 12 and plan to introduce more before the Feb. 11 deadline.
“I think there’s an appetite in the Legislature to do something,” said Jay Schwartz, a lobbyist for the Maryland Medical Society. “There’s a consensus,” Schwartz added, that the new malpractice law “was a start and only a start.”
Yet many leading lawmakers do not believe they will be able to pass legislation to solve the crisis during this session. Some say it may even take years.
Two chief factors are delaying a long-term solution: differing opinions and nastier-than-usual partisan politics.
Gov. Robert Ehrlich vetoed the malpractice reform bill after the special session, which he called. The General Assembly then overrode his veto to pass the bill, which caps malpractice awards and limits premium increases at 5 percent this year.
Many legislators — while championing the bill’s role as a short-term fix — agreed with Ehrlich that it would have to be tweaked to be effective in the long run. There are several issues that remain unsolved, including:
How experts are chosen for testimony; how emergency care providers should be treated; what doctors’ comments are on the legal record; and how damage awards should be determined, limited and doled out.
Ehrlich has proposed reducing caps on pain-and-suffering damage claims (from $650,000 to $500,000), issuing damage pay-outs in installments (as opposed to one lump sum), taking taxes into account for lost wage claims and requiring neutral experts in most court cases.
Don Hogan, Ehrlich’s deputy legislative officer, said he thinks Ehrlich’s plan would provide a long-term solution to the crisis, but fears political opposition from the General Assembly may block it.
“This is his effort to deal with a long-term solution,” Hogan said. “Now it’s a question of whether they want to address the long-term problems as well.”
House Majority Leader Kumar Barve, D-Montgomery, said he does.
Barve plans to sponsor three bills, to limit the percentage of contingency fees lawyers can receive in malpractice cases, require expert witnesses to be regulated by the Maryland Board of Physicians and tighten economic damage calculation and distribution.
Barve noted that he has the support of MedChi and bipartisan support for his bills. They will be co-sponsored by Delegate A. Wade Kach, R-Baltimore County, a member of the House Health and Government Committee.
Barve said these bills combined with the current law would solve the malpractice crisis in the long run.
“More needs to be done,” Barve said, “but I wouldn’t say a lot more. We already accomplished significant progress.”
Delegate Robert Zirkin, D-Baltimore County, has also proposed malpractice solutions, including a bill that would create an expert panel to review cases before they go to court.
Barve expects the committees that review the bills to combine elements of many of them.
But the new bills may then face stern opposition from the Senate — which could be the greatest obstacle to long-term malpractice reform.
Senate leaders maintain that no changes are needed this session. They prefer to monitor the effects of the new malpractice law before taking further action.
“It’s highly doubtful that we’re going to move forward at this time,” said Senate President Thomas V. Mike Miller Jr., D-Calvert. “Right now we are not finished fully enacting the laws that we passed during the special session.”
Sen. Paula Hollinger, chairwoman of the Senate Education, Health and Environmental Affairs Committee, said the law is far from perfect but also wants to give it time to see how it works. Only minor technicalities in the law need to be cleaned up this year, she said.
House Speaker Michael E. Busch, D-Anne Arundel, disagreed with Senate leaders’ resistance to immediate new legislation.
“I don’t know why they say that,” Busch said.
But Busch also defended the new law because he thinks it will aid health care consumers.
“It was a pretty comprehensive bill to begin with,” he said. “This isn’t just about doctors and lawyers; this is about access to health care.”
Barve and Kach understand access to health care. They co-sponsored a controversial bill in 1995, the Patient Access Act, which became the first state law nationally to regulate HMOs.
Passing new malpractice legislation, Barve said, is no more severe of a task than HMO reform.
“Everyone said we’d never pass it and we did,” Barve said. “I expect this to be a multi-year process as well…It takes a lot of work, a lot of patience and it takes the willingness to stick it out over several years. “And we’ve got that.”