Special Legislative Session in Maryland Unlikely Before Doctors Med-Mal Payments Due

The head of a Maryland Senate committee developing legislation to deal with rising medical malpractice premiums said the panel should finalize its proposal at its next meeting in two weeks, and doesn’t think a special legislative session can be held before then.

“I think the odds are against it,” said Sen. Brian Frosh, chairman of the Senate Special Commission on Medical Malpractice Liability Insurance.

Doctors have been clamoring for a special session to deal with rising malpractice premiums, which are increasing 33 percent for most. The first payment is due Dec. 1 and doctors have warned that without legislative action, many will stop practicing or leave the state, especially those in high-risk specialties such as obstetrics.

Details, for example, of a so-called stop-loss fund to cap premiums have not been worked out, the chairman said.

The fund is “still a pretty hazy concept, we still have to figure out if insurance companies will buy into it,” Frosh said.

If the fund is not made available to all insurers, there is the potential some will opt not to compete in Maryland for medical malpractice policies, leaving doctors with even fewer choices.

“We don’t want to create an environment that discourages competition,” Frosh said.

Among the proposals also discussed Wednesday were higher malpractice deductibles for doctors and changes that would make it easier for insurers to deny coverage to physicians. Requiring the losing party to pay legal costs in suits against hospitals or hospital peer review committees in physician discipline cases also was on the list.

The proposal that prompted the most discussion, however, was the stop-loss fund.

Senate President Thomas V. Mike Miller and House Speaker Michael Busch have pushed for the fund, which would hold premiums at the 2004 level and reimburse insurance companies if premiums aren’t enough to pay malpractice claims.

Gov. Robert Ehrlich’s bill included such a fund, estimated to require $50 million, but Democratic leaders were unhappy that he did not provide a funding source. Some have proposed a 2 percent tax on HMO premiums, which Miller has supported.

At Wednesday’s hearing, Sen. Larry E. Haines suggested a percentage of awards in malpractice cases could be used for the fund, while others suggested so-called “bad driver” fines could be used. Frosh said he didn’t think fines levied against drivers would be “big enough to do what we need it to do.”

Doctors have also been asking for tort reform to contain rising settlements and jury awards in malpractice cases. Tort reform, however, was not discussed at the hearing because it is the subject of intense negotiations, and because discussion of the other proposals was expected to be lengthy, Frosh said.

The panel is expected to make a final decision on the proposals at its next meeting, Dec. 1, he said.

“I think there are things that won’t make the final cut, but we’re going to keep looking at them,” Frosh said. “Any plan has to be finished by Dec. 1. I think we’re still on track.”

Earlier Wednesday, about two dozen doctors in white coats rallied in front of the State House, saying long-term reform is needed to deal with rising malpractice premiums, not stopgap measures.

The coalition, “Save Our Doctors, Protect Our Patients,” is advocating a five-point reform platform that includes a tort reform package modeled after reforms enacted in California and stronger “good Samaritan” protections for doctors.

The coalition’s founder, Dr. Karl Riggle, a Washington County surgeon, said long-term reform is needed to “ensure patients still have access to the care they need in the future.”

“If nothing is done, access to all types of care will be curtailed across Maryland,” Riggle said at the rally.

California’s model, adopted in some form by more than half of all states, limits noneconomic damages, such as for pain and suffering, in malpractice jury awards. The cap does not apply to economic damages such as lost wages.

The platform also includes more accountability and competition in the insurance industry, creation of “health care courts” similar to those in Indiana to block frivolous lawsuits, and new rules requiring that expert witnesses have the same specialty as the doctors on trial.

Dr. John Caruso, a Washington County neurosurgeon, likened the expert witness requirement to having “your plumbing inspector be a plumber, not an electrician.”

On Tuesday, Gov. Robert Ehrlich and Busch revived what they described as intense negotiations on the issue. Miller wasn’t involved in Tuesday’s meeting, but Busch said he would likely be involved in a follow-up meeting Thursday.

In addition to the already approved 33 percent increase for Med Mutual, which covers about three-quarters of the state’s doctors, insurance regulators have approved a 59.6 percent increase for the Medical Protective Company, and are reviewing rate increase filings from the two other insurers that cover Maryland doctors.

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