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In Delivery Room, Baby and Doctor at Risk

Penalizing victims makes no sense, Schochor said, but several provisions in Ehrlich's proposal would do just that. Even more significant, Schochor said, are the bad doctors who go undisciplined. He places Kearney in this category.

"I have nothing against this doctor," Schochor said. "But the world is a safer place if he gave up obstetrics, in my opinion."

Kevin Kearney, at his Salisbury office, is giving up obstetrics because the malpractice insurance costs are too high. (James A. Parcell -- The Washington Post)

Ehrlich's Proposal

Maryland Gov. Robert L. Ehrlich Jr. has prepared draft legislation that he says will help resolve the medical malpractice insurance problem. His proposal includes the following provisions:

• It allows insurance companies to pay jury awards in periodic payments over time, rather than in a lump sum.

• It provides that an apology or expression of sympathy from the doctor is inadmissible as evidence of fault.

• It limits attorney's fees to 40 percent of the first $200,000 of any judgment, 33 percent of the next $200,000, 25 percent of the next $200,000 and 15 percent of anything over $600,000.

• It allows the Board of Physicians to take disciplinary action against a doctor based on a preponderance of the evidence, rather than the current burden, which requires clear and convincing evidence of malpractice.

• It requires the parties in a court case to participate in upfront mediation to resolve their dispute before going to trial.

SOURCE: office of Gov. Robert L. Ehrlich Jr.

Kearney said he has lain awake nights, wondering whether this was all his fault. "I wish in a way it was that simple," he said. It would be better "if the lawsuit proved I was incompetent. If that was the case, I would be grateful. But I've never heard any of my colleagues or anyone besides these lawyers say that. And I don't believe it."

Kearney has never been sanctioned by the Maryland Board of Physicians.

In March, Kearney drove to the State House to tell lawmakers his story. He noted how ideas such as Ehrlich's proposal to make apologies inadmissible in court could have kept his words from being twisted. "I was given token time," he said. "There was no changing their minds."

Perhaps the only subject for which he found some agreement in Annapolis was the need to act. And soon.

Not only are obstetricians closing their practices, but the specialty is no longer the draw it once was. Of the 128 students graduating from the University of Maryland Medical School in 2003, none chose obstetrics. And though the previous three generations of Kearney's family have delivered babies, his son plans to specialize in orthopedics.

Staff researcher Bobbye Pratt contributed to this report.

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