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A problem political scorecards won't solve

December 05, 2004|by BOB MAGINNIS

To hear Maryland Senate President Thomas V. Mike Miller tell it, he's been on the right side of every progressive development in regard to medical malpractice law over the last 30 years.

Despite that, he came to Hagerstown last Tuesday knowing that local doctors consider him the ally of trial attorneys who they refer to in their letters to the editor as vultures, or worse.

Smart enough to know that the best way to defuse anger is to listen to the person with the gripe, Miller not only spoke to them from the podium at Hagerstown's Sheraton Four Points, but he also ate lunch with several physicians before his speech.

It was a talk worth hearing, because it provided another point of view on a topic that has been portrayed by many as the blood-sucking attorneys versus the noble physicians. Whether that description is accurate or not, getting the state's malpractice laws from where they are now to something better won't be easy.

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Why? Because, Miller said, Gov. Robert Ehrlich, with whom he's allied on slot-machine legalization, won't agree to raise taxes on HMOs to pay for a temporary fix, the so-called "stop loss" fund that would keep doctors' malpractice-insurance premiums where they are now.

Why not? Because Ehrlich is playing to his base, the "no new taxes" Republicans, Miller said. Ehrlich is behaving as if he were still in Congress, Miller said, where things are much more partisan. He added that Ehrlich and company need to realize that the funds to pay for things citizens need come from somewhere and that somewhere is taxes.

Miller said there was a possibility that the "stop loss" fund could be created to freeze all physicians' premiums, or to subsidize fees for certain specialties.

The 2 percent tax shouldn't be onerous, Miller said, because the HMOs were granted an exemption from it by Maryland in an effort to spur competition in the marketplace. Other states and the federal government have already rescinded their exemptions, so Maryland should do the same, he said.

While being careful to say that trial lawyers would have to accept some tort reform to make the bill work, Miller put some of the blame on the insurance companies. In a pattern he said had been repeated periodically over the last 30 years, rates remained fairly steady until the recent recession, at which time the insurance companies found they weren't making as much on their investments and raised rates. And when lawmakers asked to see their books, Miller said, they were told the information is "proprietary."

Another problem, Miller said, is that insurance brokers are now getting 7 percent on the sale of such policies.

They're entitled to make a profit, he said, but 7 percent is "outrageous."

Actually, Miller said, of the top 20 awards in the last year, only three were by jury verdicts and some of the largest were settlements by Medical Mutual, the doctor-owned company that insures most physicians in the state.

Physicians will also have to accept some new rules, as well, Miller said, adding that Maryland is "one of the lowest-tier states in terms of physician discipline."

"One of the issues is that the hospitals have the authority to discipline (by withdrawing privileges), but they're afraid of getting sued," he said.

During the question-and-answer period, Dr. Robert Levitt, a Montgomery County physician asked how long a solution might take. Miller said he had gotten the trial lawyers and the state's medical society together in July on the "stop loss" solution, but that Ehrlich wouldn't go along.

Dr. Karl Riggle, a leader of the "Save Our Doctors" movement, asked Miller about "Good Samaritan" protection for doctors who volunteer at places like the Community Free Clinic. The clinic recently lost the services of Dr. Edward W. Ditto III, whose insurance premium was set to go from $2,000 in 2004 to $5,164 and possibly higher in 2005.

Miller said he had worked to get such protection for firefighters and others who render assistance, but the problem with extending it to doctors is that the standard for what is actionable in court would go from "negligence" to "gross negligence."

I have no doubt that the Good Samaritan issue can be worked out, because, as practical matter, every patient who isn't seen at a free clinic could end up in the emergency room, further straining the system.

As for Miller's claim that Ehrlich is the problem, that may be true, but the General Assembly's Democrats have tried to push the governor into abandoning his no-new-taxes pledge with issues like slots, when the prudent and responsible thing to do would be to deal with that issue separately. If slots don't yield enough to do the business of government, then Democrats can push for additional revenue-raising measures.

Finally, malpractice may be the rare issue that citizens can force politicians to solve. My advice is not to press only Ehrlich or Miller, but to tell all members of the General Assembly that they need to stop worrying about scoring political points and get this matter resolved.

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