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By John Wagner
From WashingtonPost.com
December 2, 2004
A Senate commission studying Maryland's medical malpractice crisis
gave some ground yesterday on legal changes sought by Gov. Robert L.
Ehrlich Jr. (R) and endorsed the creation of a state fund that would
subsidize doctors' insurance costs for the next four years.
The actions were intended to move state leaders closer to convening
a special legislative session, but all parties cautioned that major
points of contention remain between Ehrlich and top Democrats in the
General Assembly.
In its most significant concession, the Senate panel endorsed a
lower cap on damages that may be claimed for "pain and suffering" in
wrongful death cases, from $1.6 million to $975,000. The move was
vigorously opposed by trial lawyers, who argue that it would do
little to ease doctors' escalating malpractice premiums.
Physicians insured by the state's largest malpractice carrier are
facing an average 33 percent increase in bills that were due
yesterday. Several appeared at the Senate meeting, voicing
frustration at the state's failure to act.
Donald J. Hogan, a legislative aide to Ehrlich, said the Senate
panel's support for reducing the cap represented a "positive step."
But Hogan noted that there are significant differences between the
Senate's posture and a bill drafted by Ehrlich.
"Hopefully, we can reach a compromise," Hogan said. "There's still
work to be done."
The governor's legislation includes several additional provisions
designed to curb damages available for medical expenses and lost
wages for injured patients.
Doctors and insurance companies argue that the curbs are necessary
because lawyers routinely inflate such costs at trial and in
settlement negotiations. A bill drafted by the governor also
contains a lower cap for pain and suffering in wrongful death cases:
$650,000.
Significant differences also remain over how to pay for a proposed
fund that could provide some relief on premiums.
The Senate panel, led by Brian E. Frosh (D-Montgomery), endorsed a 2
percent premium tax on HMOs and managed-care companies that would
raise an estimated $80 million a year.
A portion of that money would be used to subsidize doctors'
payments, while the remainder would be used to raise the amount paid
to doctors by Medicaid, the state's insurance program for the poor.
Ehrlich has voiced general support for a state reinsurance fund to
help doctors but has said he is opposed to the tax on HMOs, which is
paid by other insurers. He has not publicly identified an
alternative funding source.
Under the plan endorsed by the Senate, a state board would decide
how to subsidize doctors' insurance premiums, taking into account
different specialties and regional differences in access to care.
The fund would remain in place for four years.
The other legal reforms endorsed by the Senate panel yesterday
include:
• Requiring mediation between doctors and patients before
malpractice suits move forward. Frosh said the measure would save
time and money in many cases.
• Freezing an existing cap on damages available in "pain and
suffering" cases in which a patient survives at $650,000 for the
next four years. Under current law, the cap is scheduled to increase
by $15,000 a year.
• Allowing doctors to apologize to injured patients without fear
that the gesture could be used against them in court.
• Barring lawyers from filing malpractice cases for a decade if they
bring three frivolous cases in a five-year period.
Several members of the Senate panel voiced reservations about some
of the measures embraced yesterday.
Sen. Sharon M. Grosfeld (D-Montgomery) argued that there was no real
evidence that capping damages would affect doctors' premiums. The
measure, however, would "perpetuate a very damning stereotype of
lawyers," she said.
The Senate panel has previously endorsed several other reforms
geared toward protecting patient safety.
Negotiations are expected to continue in coming days among Ehrlich,
Senate President Thomas V. Mike Miller Jr. (D-Calvert) and House
Speaker Michael E. Busch (D-Anne Arundel).
Hogan said Ehrlich will present a revised bill to legislative
leaders in coming days. He would not comment on how it might differ
from a bill he presented several weeks ago.
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