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The Gazette
Malpractice
moves up in importance by Catherine
Dolinski and Steven T. Dennis On Wednesday, Senate President Thomas V. Mike Miller Jr. challenged the governor to call off the tort reform zealots and consider new options that Miller claims could freeze increases in malpractice insurance rates altogether. In his strongest show of support yet, Miller (D-Dist. 27) of Chesapeake Beach declared that a special session addressing the medmal problem must take place in November "no matter what," before doctors have to mail in their premiums. The trick, he said, will be to convince the stakeholders to abandon dead-on-arrival proposals and ulterior political agendas. "What we have to do is isolate the radicals on both sides of the issue," Miller said. "What they've got to drop is things they can't pass. They've got to talk in terms of reality." Miller set the stage by offering an array of options for subsidizing the cost of malpractice insurance, from borrowing money from CareFirst BlueCross BlueShield to levying new fees on Maryland drivers. Doctors continue to battle with trial lawyers over medical malpractice, arguing that increases in the size of court awards are driving insurance rates sky-high and threatening to drive them out of business. Earlier this year, the General Assembly shot down the plan Gov. Robert L. Ehrlich Jr. introduced on behalf of doctors to address the issue through tort reform, including capping awards for pain and suffering and restructuring compensation for lost wages and medical costs. With some doctors now talking of striking, Ehrlich (R) has said that a special session is more critical than ever. Because House leaders have shown sympathy with the doctors, he said, the key is finding a compromise with the lawyer-laden Senate. Miller, a trial lawyer, continues to vow to protect patients' rights to jury trials and compensation. But on Wednesday night, he and Ehrlich appeared closer to dealing than ever. As talk of slots waned, Ehrlich reiterated the dire need for a special session on medical malpractice. Miller not only agreed, but upped the ante, offering proposals that he said should sufficiently fit "into the Republican politics pigeonhole." Borrow it Miller wants to create a statewide "stop-loss" fund to subsidize award payouts, in exchange for an agreement from insurers not to raise premiums. Ehrlich initially panned the idea this summer, calling it an inappropriate burden on taxpayers. But he recently voiced tacit interest in the idea as a short-term source of relief, echoing remarks by House Speaker Michael E. Busch (D-Dist. 30) of Annapolis. Funded correctly, a stop-loss fund could keep rates down indefinitely, Miller said. The burden does not have to fall directly on taxpayers, he said, if CareFirst would pick up the tab initially. The state could borrow the money from the insurer, then pay it back by lowering the regulated rates that CareFirst must pay on hospital beds for patients admitted for treatment, Miller said. Lending money to the state also could help CareFirst CEO William L. Jews curry favor again with lawmakers and consumers, after his company tried last year to ditch its nonprofit status and sell itself to California-based WellPoint Health Networks Inc. for $1.37 billion, including millions in bonuses for Jews and other CareFirst executives. The idea was news to Jeffery W. Valentine, CareFirst's corporate communications director, who said the Senate president has not approached the company. "We think we are a good corporate citizen already," Valentine said "We give 2 percent of our net operating income out in contributions to a wide variety of charitable, nonprofit operations." Generally speaking, he said, CareFirst could back the notion of a stop-loss fund, but probably only in concert with other solutions such as tort reform. Valentine refrained from further comment on lending money for a stop-loss fund, saying he needed more details. "Our most obvious concern would be that we not do anything to impact our ability to serve our customers," Valentine said. Levy it Taxes are not a viable alternative source of money for the pool, Miller said, because using them would alienate conservatives. User fees, on the other hand, are an option for which the Ehrlich administration has proven tolerance, making Maryland drivers a possible resource as well. Money for the stop-loss fund could come from a surcharge on driver's license renewals, Miller said. The idea mirrors a proposal that Sen. James Brochin (D-Dist. 42) of Towson and Del. John G. Trueschler (R-Dist. 42) of Lutherville pitched in July to pay for the fund with an increase in vehicle registration fees. At the time, Miller dismissed their plan. "For the revenues to be there, there has got to be a cause and effect," he told The Gazette in July. "There's got to be some direct correlation." Brochin was gratified this week to learn of Miller's change of heart, but said he now prefers a plan from Sen. Robert J. Garagiola (D-Dist. 15) of Germantown to institute new fines for drunken and reckless drivers. The Driver Responsibility Act that Garagiola introduced during the last legislative session would have levied annual fines of $1,000 or more through the Department of Motor Vehicles on drivers who receive drunken driving citations during a three-year cycle. It also would have penalized reckless drivers who have at least five points on their driving records. The bill was modeled on a similar program in New Jersey that has raised millions of dollars and is believed to have lowered traffic fatality rates. When he introduced the bill, Garagiola had intended to use a portion of the revenues to increase Medicaid reimbursement rates for doctors. On Thursday, he said the revenue could pay for the stop-loss fund. "We need to come up with some way to underwrite the premiums for these doctors for a year or two," Garagiola said. "One of the attractive features of this plan is you're basically going after drunk drivers, people who are reckless, careless drivers. There's a direct nexus between driving poorly and hospitalization." Brochin agreed. "Certainly second would be an increase in vehicle registration fees," he said. "But from what I'm hearing in my district, the drunk driving fees" would rest more easily with voters. It also may rest more easily with Ehrlich, who proposed increasing fines for speeders and drunken drivers to raise $51 million for the Transportation Trust Fund. Legislators killed the proposal during the legislative session, led by House Judiciary Chairman Joseph F. Vallario Jr. (D-Dist. 27A) of Upper Marlboro, an attorney who defends people accused of drunken driving. Miller said drunken drivers could be a source of revenue for the stop-loss fund. But such thinking does not sit well with transportation advocates, such as Richard N. Parsons, president of the Montgomery County Chamber of Commerce. Parsons applauded Miller's stop-loss fund idea and attempts at finding compromise, but blasted the notion of routing revenue from transportation-related fees away from roads and transit. "I think it would be a very poor precedent to raid funds traditionally set aside for transportation purposes," he said. "It's a great idea to have a stop-loss fund, but perhaps we could look at some sort of surcharge on attorneys fees, which are more related to the purpose ... or maybe we don't cap them, but put in a tax over a certain amount -- and I mean that constructively." Senate Minority Whip Andrew P. Harris (R-Dist. 7) of Cockeysville agreed that transportation fees should be used for transportation purposes. "Our registration fees are plenty high," said Harris, one of two doctors in the General Assembly. "Certainly, they ought to be directly related to automobiles, and trial lawyers are not related to automobiles -- I guess, I should say, unless you're ambulance chasing." Harris said he understands why creating a stop-loss fund may be tempting, but he is not convinced it deserves funding at all. "All you're doing is providing relief for physicians who would have to pay higher premiums," he said. "In the long term, you make the problem worse because you just put more money into the pot. We'll attract even more personal-injury lawyers to bring these suits. People for whom it was not attractive financially all of a sudden will say this pot is large." The fund might serve a purpose, Harris said, if coupled with effective tort reform. But given the critical mass of lawyers serving in the Senate, Harris is pessimistic. "The votes are not in the Senate," he said. "I think the best we can hope for is short-term relief and some small element of tort reform like economic damages." Down to business Ehrlich spokesman Henry P. Fawell would not comment on specifics of Miller's proposal but suggested that they do not add up to a full solution. "We do welcome the Senate president's interest in finding a solution," he said. "To be sure, these are short-term fixes, when we have a long-term problem." If Ehrlich and the doctors want to make progress of any kind, Miller said, they will have to stop using medical malpractice as a wedge issue. "If we could just get the governor to stop ginning up the doctors and his staff in Annapolis and make them come to work on time ... we could get this matter over and done with," he said. "You've got to quit calling names and reach across the table and shake hands and deal with it. ... His staff wanted to assign blame, they didn't want to solve the problem." Miller also criticized the doctors' plan to "get dangerous" by forming a political action committee and withholding campaign contributions from lawmakers who do not vote their way. Since the end of the legislative session in April, Ehrlich has been encouraging business groups not to cater to both sides of the political aisle and hold lawmakers accountable for their votes. "I don't know anything about raising money," Fawell said. "If [Miller is] accusing the governor of telling the public we have a health care crisis, he is guilty; he has been doing that. But we have thousands of doctors and patients who are voicing their opinions on this." Harris called Miller's statements ironic, since the doctors' lobby is only following the example of the Maryland Trial Lawyers Association, a group with close ties to Miller. "Since the two largest PACs that do that are the education PAC and the trial lawyers' PAC, which are notoriously non-Republican, it's interesting [Miller] paints this as a Republican issue," Harris said. "Bob Ehrlich is not reinventing the wheel." |
