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Md. Senate Rejects Malpractice Changes

GOP Proposals Defeated on Floor

By John Wagner
Washington Post Staff Writer
Friday, March 11, 2005; Page B04

The Democrat-led Maryland Senate turned back 10 attempts by Republicans yesterday to make broader changes in medical malpractice laws than were included in a bill passed during a bruising special session in December.

The series of floor votes -- on measures to limit awards to injured patients, cap their attorneys' fees and bar doctors' apologies from being used as evidence of liability -- underscored the limited appetite in the Senate for revisiting the contentious issue so soon.

After yesterday's action, state Senator Andrew P. Harris, shown in January, said that "this is probably it for tort reform until . . . after the next election." (Lucian Perkins -- The Washington Post)

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"What we showed here is there is zero chance as long as the Senate leadership opposes it," said Minority Whip Andrew P. Harris (R-Baltimore County), the Senate's only doctor. "I'm sure this is probably it for tort reform until probably after the next election."

The bill passed in December included short-term relief for doctors, who were facing double-digit increases in malpractice insurance bills, and several legal changes aimed at holding down rates. Lawmakers in January overturned a veto of the bill by Gov. Robert L. Ehrlich Jr., who argued the legal changes were insufficient.

Ehrlich (R) is pushing for additional changes, and the effort has the support of some Democrats in the House of Delegates. Speaker Michael E. Busch (D-Anne Arundel) said yesterday that he has appointed a work group to determine what legislation might be ushered through the House. The prospects include a bill that would require plaintiffs' awards be paid out in installments rather than a lump sum.

Yesterday's action, however, suggested that the Senate remains a tough sell for such measures, which are supported by doctors and insurance companies but opposed by lawyers.

The Republican efforts came during debate on a bill that makes technical changes in the hastily passed legislation from December. Lawmakers say it is needed to ensure that doctors get their promised relief.

Sen. Brian E. Frosh (D-Montgomery) said lawmakers should allow the provisions approved during the special session to take effect before adopting additional measures, many of which he argued are unfair to victims of medical malpractice. Most of the 10 amendments failed on votes that largely broke along party lines. Republicans hold 14 of the Senate's 47 seats.

Some of the most colorful debate concerned an amendment that would allow suits against emergency room doctors only in cases of "gross negligence." Harris argued that those doctors, who treat patients they don't know in crisis situations, deserve heightened protection.

Frosh, a lawyer, countered that a doctor could escape accountability for giving a child with a broken ankle a heart transplant -- as long as the doctor did not do it deliberately.

Harris and Frosh also tangled over an amendment that would give doctors broader immunity when they apologized for medical mistakes.

Frosh argued that under Harris's proposal, a doctor could run out of an operating room proclaiming that he had cut off the wrong leg and not have that admission used against him in court. Harris countered that without using the doctors' own words, there would be ample evidence of negligence in such egregious cases.

The Republicans' high-water mark yesterday came on an amendment that would have shifted $10 million from insurance rate relief for doctors to funding for Medicaid. It received 18 votes.

Senate Minority Leader J. Lowell Stoltzfus (R-Somerset) said that under the measure, doctors' insurance rates would rise 8 percent this year, instead of 5 percent, as called for in the malpractice bill passed in December. But shifting the $10 million to Medicaid would bring $10 million in federal matching funds to the state -- and ultimately to doctors, through higher reimbursements for treating Medicaid patients.

Democrats argued that the proposal was unfair to doctors who have budgeted for a 5 percent rate increase this year based on the General Assembly's actions.

"We made promises to the docs," said Sen. Dolores G. Kelley (D-Baltimore County). "This would break faith with what we've done."

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