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Md. lawmakers defy
Ehrlich, who has vowed a veto; Some see enough votes to override;
Would limit insurance increases
By M. William Salganik, Joanna Daemmrich and David Nitkin
Sun Staff
December 30, 2004, 7:06 AM EST
In a session lasting past 3 a.m., the state legislature approved a
bill this morning to keep malpractice insurance costs for doctors in
check, defying Gov. Robert L. Ehrlich Jr.'s pledge to veto the
complex agreement.
The House, voting at 3:01 a.m., approved the bill on a vote of
85-44. In the Senate, where the roll call came at 3:32 a.m., the
tally was 32-13. In both houses, the voting closely followed party
lines.
Legislative negotiators struck a compromise on the second day of a
rare General Assembly special session yesterday that would limit
doctors' insurance increases at 5 percent in the coming year,
instead of the 33 percent increase that they face Jan. 1. Other
agreed-to reforms would make patients safer, discipline negligent
doctors and change the way courts award damages for injuries and
improper care.
Ehrlich called the effort "relatively minor" and "a wasted
opportunity" to create more meaningful reforms. "It's a shame," he
said. But the governor vowed to reintroduce legislation with
stricter limits on lawsuits, as he originally proposed, when the
General Assembly reconvenes in two weeks.
"It appears the net result of this experience is a tax bill which is
regressive and is legal-reform light," Ehrlich said last night after
receiving a briefing on the results of the negotiations, "which is
not what the people of Maryland wanted."
Eager to wrap up a holiday-week special session called by the
governor, lawmakers decided to stay well past midnight while the
final version of a 100-page bill was printed. Legislators grew giddy
as the hours passed. While some drank coffee, others retired to
local inns or found secluded rooms for card games. Del. Salima S.
Marriott napped on a couch in the House lounge.
With Ehrlich promising to follow through with a veto, some lawmakers
were unsure whether they had wasted their time. But others
maintained that something of substance had been accomplished.
"The juice was worth the squeeze to come down here, and do what we
did," said Del. Joseph F. Vallario Jr., a Prince George's County
Democrat and one of the House negotiators.
Vallario and others said there were sufficient votes in both
chambers to override a gubernatorial veto, a vote that could come as
early as Jan. 11. That's when lawmakers are scheduled to take up a
series of veto overrides, a day before the start of the 90-day
regular session.
Health providers had mixed reaction to summaries of the
legislature's plan.
"We have a lot of docs on the edge, and this is a great step in the
short term," said Dr. Stephen L. Diehl, a Hagerstown radiologist who
has been lobbying for reform as part of the Save Our Doctors Protect
Our Patients Coalition. "A long-term solution involves mostly tort
reform, but we got some significant tort reform as a first stage."
But Del. Dan K. Morhaim, a Baltimore County Democrat who is also an
emergency room physician, said he thought the conference bill was
"seriously watered-down tort reform," and blamed the Senate for not
considering more sweeping changes. He said he would support it
reluctantly, because "it does keep a number of doctors in practice
for a year."
Representatives of the state medical society and hospital
association said they would need to study the bill before
commenting.
Ehrlich and the Assembly remain locked in a standoff over which
public funds should be used to help doctors defray their soaring
costs. The Democrat-controlled legislature wants to remove a
decades-old tax exemption applied to health maintenance
organizations, making them subject to the same 2 percent premium tax
paid by other insurers.
Ehrlich, a Republican, has repeatedly called such a tax
"regressive," and his veto of the bill is virtually guaranteed.
Instead, the governor wants to use a corporate tax windfall to
create a stopgap fund for doctors who say the insurance increases
are forcing them to curtail care and even quit.
Legislative leaders insisted they were proud of their work over the
past three days to balance the desires of trial attorneys,
hospitals, doctors and patient victims.
"I'd like to think the governor will have time to reflect on this
bill and see the good it does for the people of Maryland," said
Senate President Thomas V. Mike Miller. He called the agreement
"almost miraculous."
Likewise, House Speaker Michael E. Busch said Ehrlich should be
pleased with the limits on jury awards and expert witnesses
contained in the final plan, because it includes many of the legal
reforms Republicans have long championed.
Sen. Brian E. Frosh, a Montgomery County Democrat and key negotiator
of the compromise, called the consensus package "a comprehensive
approach to the problem -- balanced, effective and fair." He said it
would reduce future litigation costs more than the version offered
last week by the governor.
Del. John Adams Hurson, the chairman of the House Health and
Government Operations Committee said it included "major pieces of
tort reform," and stronger patient safety and insurance reform
measures than the governor's bill.
Key provisions of the bill include:
Payouts: The limit on so-called pain and suffering noneconomic
damages would be locked in at the current $650,000, ending an annual
inflation adjustment. In death cases, the limit would be set at
$812,500 -- half the current level. Courts could use neutral experts
to assess lost wages and future medical costs.
Process: There would be tighter limits on qualifications of expert
witnesses, and plaintiffs would have to file a more detailed
"certificate of merit" with an expert explaining what he thought the
doctor had done wrong. Apologies made by doctors couldn't be used as
evidence against them, although admissions of fault could. Mediation
would be mandatory, in an effort to settle more cases before
expensive trials.
Reimbursement: To help doctors meet higher costs and to provide
incentive to treat the poor, doctor reimbursements under Medicaid
would be in creased, with the decision on how to set the
enhancements left to the state health department.
Patient safety: The board that disciplines doctors would have an
easier standard of proof, matching that in most other states.
Insurers could more quickly cancel doctors considered bad risks. The
existing state Patient Safety Center would have an expanded data-
collection role.
Insurance regulation: A People's Counsel would represent consumers
in malpractice (and homeowner) premium rate hearings. The insurance
commissioner should consider insurers' surplus and reserves in
approving future rate hikes. The state's largest provider of
doctors' insurance would have enhanced reporting requirements,
including making public executive salaries.
Lost from the conference version were several provisions from the
stronger House bill. The House version would have paid only 85
percent of projected future lost wages, to account for taxes paid.
And it would have provided extra liability protection for doctors
working in emergency rooms.
The governor and legislative leaders appeared to stop negotiating by
late yesterday afternoon after the rancorous course of the special
session became clear and chances of an agreement evaporated.
In a last-ditch effort, Republicans continued to search for an
alternative to the HMO tax yesterday. The governor floated several
alternatives to finance his proposed short-term relief for doctors
over the next three years that he expects to cost about $90 million.
One was to use some of Maryland's share of the national tobacco
settlement -- a proposal offered by Republican senators at midday
that was quickly defeated.
As with many issues in Annapolis since Ehrlich's election ushered in
an era of divided government, the governor and other politicians
focused as much energy yesterday on positioning and blaming as on
solving problems.
Ehrlich took credit for bringing attention to the issue, but
Democratic lawmakers questioned his commitment to a solution.
Rankling many lawmakers and staffers by disrupting their holidays,
the governor summoned the legislature before reaching a firm
consensus with legislative leaders on major elements of a reform
bill.
"From my standpoint, this whole set of circumstances has defied
logic," Busch said. "He should not have called a special session."
The lack of agreement seemed to further erode already strained
relations among state political leaders, particularly between
Ehrlich and Miller.
"I'm the governor. He's the president of the Senate," Ehrlich said.
"We will deal with each other as adults."
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