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Special Session on Malpractice to Test Ehrlich's Leadership

By Matthew Mosk and John Wagner
Washington Post Staff Writers
Sunday, December 26, 2004; Page A01

For doctors who say they are being driven under by malpractice insurance bills and lawyers who represent victims of medical errors, the stakes will be high when the Maryland General Assembly convenes Tuesday for its first special session in 12 years.

But no one has made as heavy a personal investment in the outcome as Gov. Robert L. Ehrlich Jr. (R), who spent much of this year using his position to elevate simmering concerns about malpractice insurance rates into the state's most pressing issue.

Trying to resolve the malpractice issue has been "the single most difficult thing I have done in 18 years in politics," said Ehrlich, shown signing a proclamation for the special session. (Matthew S. Gunby -- AP)

Ehrlich's Bill

Here are highlights of Maryland Gov. Robert L. Ehrlich Jr.'s medical malpractice bill:

• Parties are required to try mediation before proceeding with a lawsuit.

• Before cases move forward, plaintiffs must produce experts to attest to the fault of each defendant named in a suit.

• Plaintiffs may not use a doctor's apology as evidence of guilt.

• The cap on damages for "pain and suffering" in wrongful death cases is lowered from about $1.6 million to $650,000.

• The cap on damages for "pain and suffering" in other cases remains at $650,000 for three years, instead of rising $15,000 a year under current law.

• A consumer advocate, called the people's insurance counsel, is appointed to review any annual rate increase exceeding 10 percent sought by an insurer.

• A "rate stabilization" fund is created to curb doctors' insurance rates; details of the fund are delegated to a five-member board appointed by the governor and legislative leaders.

• The governor is directed to appropriate an unspecified amount of money to the fund for the next two years; no new funding source is created.

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If he can overcome Democratic objections and pass his bill -- which couples short-term financial relief for doctors with long-term attempts to stabilize rates -- it would represent a pivotal legislative victory for a Republican governor who has viewed the legislature as hostile territory, say analysts who follow Maryland politics.

"This is a crucial moment for the governor," said Allan J. Lichtman, an American University history professor. "So far, he's remained popular primarily for what he hasn't done, like raise taxes or expand bureaucracy. . . . But there's no daunting accomplishment for Ehrlich to take to the electorate, and he needs this."

Ehrlich has governed largely from a defensive posture in the two years since he became the first Republican to lead the state in a generation. He helped derail a billion-dollar plan to raise sales and income taxes, vetoed a corporate tax and fought a living wage proposal that would have raised pay for state contract workers but strained the budget.

Although he pushed through a bill last year to help clean up the Chesapeake Bay, other major policy ideas have fizzled, including tougher enforcement of gun laws and, notably, expansion of legalized gambling. His slots initiative, which monopolized his first two years in office, was twice rejected by the House of Delegates.

Ehrlich has largely blamed these defeats on the Democrat-controlled legislature. His supporters suggest that, in the absence of a major legislative victory, he will campaign for reelection in 2006 by painting the General Assembly as obstructionist.

"He knows he can stand up and tell Maryland voters, 'One man stands between you and a billion-dollar tax increase,' " said Ehrlich supporter Blair Lee, a Silver Spring developer and political commentator. "That's it. That's all he has to say."

But Ehrlich has made clear that he wants to do more than play defense. At one point, he used an executive order to bypass the legislature and aid faith-based groups. Speaking to business leaders after lawmakers adjourned in April, he vowed he would not "sit down there [in Annapolis] for two more years as a backstop."

In the spring, Ehrlich identified the malpractice insurance issue as his top priority and then visited 21 hospitals across the state to press his case. This month, after weeks of tense negotiations with House and Senate leaders, he roiled legislators' holiday plans by calling the special session without an agreement on crucial details.

Leadership Works

Still, Maryland Democrats argue that Ehrlich has failed to do what past governors have done to great effect: dictate a legislative agenda.

The state's Constitution endows the governor with more control over patronage and budget decisions than almost any other governor in the nation. Crafty use of those tools enabled Ehrlich's predecessor, Parris N. Glendening (D), to push through an agenda that included a tobacco tax, gay rights legislation and gun control -- all measures that were hardly popular with a majority of Democratic lawmakers, especially in the Senate.

"People expect that when you get to be governor, you'll go to Annapolis and lead," said Del. Obie Patterson (D-Prince George's).

"To do that, you have to build bridges. You can't sit at the extremes and put your back to the wall. That, in my view, has been one of this governor's downfalls during the first two sessions."

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