Maryland Gov. Ehrlich’s Med-Mal Proposal Unveiled; Special Legislative Session Gets Underway Today

Maryland Governor Robert L. Ehrlich, Jr., on Dec. 22 provided Senate President Thomas V. Mike Miller and House Speaker Michael E. Busch a copy of the medical malpractice legislation that will be introduced during special session of the General Assembly that is opening today, Dec. 28, 2004.

Legislators who received the governor’s draft bill spent their holiday reviewing the 55-page bill.

In addition to the governor’s proposal, as many as a half dozen others are expected to be filed. Sen. Brian Frosh, D-Montgomery, chairs the Senate Special Commission on Medical Malpractice Insurance and of the Judicial Proceedings Committee, which will hear testimony on the malpractice bills.

Democrats and Republicans are expected to huddle and pursue their own strategies throughout the special session.

Gov. Ehrlich’s bill would put a cap on medical malpractice pain and suffering awards at $650,000, hike hospital rates to pay for patient safety measures and require stricter qualifications of doctors testifying on behalf of plaintiffs.

Ehrlich and lawmakers are under pressure to stem the increases in physicians’ medical malpractice insurance premiums, which rose 28 percent this year and are to increase another 33 percent on Jan. 1. Some physicians say the increases are driving them out of business.

Democrats have argued that the insurance commissioner should delay increases in medical malpractice rates temporarily to allow the General Assembly to vote when it reconvenes Jan. 12. But Ehrlich has balked at the suggestion.

The major battle between Democrats and Republicans involves how to finance a fund to help defray the doctors’ premiums. Ehrlich prefers to cover the costs from the state’s general treasury, while Democrats have suggested a 2 percent tax on HMO premiums. Democrats say a tax is needed because the state is already running a deficit; Ehrlich says he will veto any bill with a new tax.

The following is an executive summary of Gov. Ehrlich’s medical malpractice legislation provided by his office:

* Procedural Changes:
* Apology Law – Allows apology by provider, and prevents it being used as an admission
* Mandatory Mediation
* Offer of Judgment – Available to both parties
* Increase in Number of Jurors in civil cases
* Health Claims Arbitration Office abolition
* Certificate of Merit required for each defendant
* Enhanced Certificate of Merit – Applicable to both parties
* Medical Experts – (1) require active clinical practice within one year of injury; (2) board certification required if defendant is board certified; (3) No more than 20% of time in activities related to personal injury claims (not just testimony-related); (4) Board Of Physicians review of expert testimony – No sanctions may be imposed.

* Patient Safety:
* Fines for Hospitals Failure to Report
* Loser pays for Hospital Privileges
* Lesser Burden of Proof for Board of Physicians in Standard of Care cases
* Increase in Hospital rates to fund patient safety initiatives

* Insurance Reforms:
* Require Insurers to report to MIA
* Insurance – MedGuard protection – Make elective
* Establish a People’s Counsel for Medical Malpractice Insurance

* Legal Reforms:
* Economic Damages – Past Medicals paid at actual cost; lost wages reduced by tax amount
* Future Medical bills – Rebuttable presumption that Medicare rate is correct
* Non-economic Damages Cap – Remains at $650,000
* No $15,000 escalator for 3 years, Single cap applies in death cases
* “Three strikes and you’re out” for plaintiff’s attorneys who file frivolous cases

* Provider Assistance:
* Increase Medicaid reimbursements for OB’s, neurosurgeons, orthopedists, and emergency room physicians – $12 million State general funds ($24 million total due to federal match)
* Reinsurance Fund for providers to help defray rising costs of malpractice insurance – $30 million first year
* Prohibit health insurers from reducing reimbursements to certain health care providers for three years (the time during which the reinsurance fund is in effect)