Legislators seek surgery on malpractice laws

February 19, 2006|By TAMELA BAKER


The General Assembly's leadership insisted last year they had provided the antidote for a medical community sick of mounting malpractice insurance premiums and demanding a cure.

Physicians, on the other hand, have complained ever since that lawmakers had merely stuck a bandage on the issue, leaving the infection to fester.

Many blamed party politics. Nevertheless, both the Senate and the House were faced with striking a balance between the physicians' concerns and the often emotional testimony of victims of some medical misadventure.

While the legislature approved measures last year to create a stopgap fund to stem double-digit premium hikes by charging a 2 percent tax on HMO coverage, Gov. Robert Ehrlich, most Republican lawmakers and physicians throughout the state complained that no real reform to the state's medical malpractice laws materialized.


The result, say physicians and legislators from Maryland's rural areas, is the loss of physicians who either leave or refuse to perform high-risk procedures - even refusing to deliver babies.

So they're back - with 17 bills filed in this year's General Assembly to reform medical malpractice liability laws.

Early in the legislative session, Ehrlich fulfilled a promise made during an interview with The Herald-Mail to introduce a comprehensive reform bill.

It imposes new criteria on expert witnesses in malpractice cases, including one that prohibits witnesses who do not actively practice medicine. It limits expert witnesses to spending up to 20 percent of their professional activities outside care and treatment of patients. It also gives courts more responsibility in deciding whether an expert's testimony should be admissible.

The bill would reduce damages awarded in malpractice cases if the plaintiff is getting compensation from other sources. Awards for lost wages would be reduced by the amount the plaintiff would have had to pay in income taxes if the money had been earned, and future damages for medical, hospital or nursing home bills would be limited to the amount paid by Medicare.

Noneconomic damages, currently capped at $650,000 for pain and suffering and $812,500 for wrongful death, would be capped at $500,000.

The bill also includes a provision that apologies by health-care providers is not admissible as evidence, limits interest rates on judgments and creates a task force to study other issues relating to medical malpractice.

Just what the doctor ordered?

Del. Christopher B. Shank, R-Washington, unsuccessfully championed such reforms last year. This year, he's introduced three bills of his own.

The most important of them, he said, would provide "Good Samaritan" immunity for physicians in emergency situations.

"We have a lot of talented physicians who won't take call because of liability concerns," Shank said, leading to "gaps in coverage" in Washington County Hospital's emergency department.

Both Shank and Karl Riggle, chief of surgery at the hospital, have said there's a shortage of thoracic surgeons at the hospital. Thoracic surgeons specialize in heart-lung and other critical-care areas.

"That's unacceptable," Shank said this week. "It's an outrage to me that the liability system has been allowed to fester ... It's not overstating the case to suggest it can negatively affect health-care outcomes."

In other words, the shortage can make a life-or-death difference to a critically ill or injured patient.

"When your loved one's lying along the road in a ditch or your child has a ruptured appendix, you want health care immediately rather than having to fly to Hershey (Pa.) or Baltimore," Shank said.

He's also proposed a measure to reform the use of expert witnesses, similar to a plank of the governor's bill. Shank said the goal was to eliminate - on both sides of a malpractice case - the use of physicians who no longer practice as "hired guns."

Shank said expert witnesses should be held accountable for their testimony; he would impose sanctions against witnesses "if they incorrectly testify about a standard of (medical) practice." To that end, his bill would make sure people in the same subspecialty, and still practicing themselves, would testify in malpractice cases.

Finally, Shank proposed legislation to ask the state's judiciary to consider establishing special courts for malpractice cases. Special courts in other areas, such as drug offenses, already exist in Maryland; Shank said having specialty courts for medical malpractice would speed up the process for both plaintiffs and defendants and "take the inequalities out of the process" for all parties.

Other legislators have filed similar bills, and most Washington County lawmakers have signed on as co-sponsors. The only two who have not are Sen. John Hafer, R-Washington/Allegany/Garrett, and Sen. Donald F. Munson, R-Washington - but only three of the 17 malpractice bills have been filed in the Senate.

Del. John P. Donoghue, D-Washington, and the only local legislator to vote for last year's stopgap bill, signed onto the governor's bill and sponsored one of his own.

Donoghue's bill would require the court to determine whether a malpractice award should be paid in increments or in a lump sum if the award is more than $250,000 and either party in the case makes the request. Such "structured" payments were another issue physicians pushed last year.

Hearings on medical malpractice bills are scheduled to begin at the end of the month and will continue through March.

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