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Differing Bills Face Same Fate: Ehrlich's Veto

House, Senate Measures Both Call for HMO Tax

By John Wagner and Matthew Mosk
Washington Post Staff Writers
Wednesday, December 29, 2004; Page A01

Maryland's first special legislative session in more than a decade became mired in discord yesterday, as the Senate and House of Delegates approved dueling bills on medical malpractice -- while Gov. Robert L. Ehrlich Jr. all but declared the session a failure.

The Senate last night approved legislation 32 to 14 that includes fewer legal curbs on malpractice lawsuits than Ehrlich has sought and a tax that the governor opposes. The House gave tentative approval to a bill more in line with Ehrlich's plan to limit payouts in malpractice cases -- but also containing a tax on HMO premiums.

"He should sleep on it and declare victory," Senate President Thomas V. Mike Miller Jr. (D-Calvert) said of Gov. Robert L. Ehrlich Jr., should the House and Senate reach a deal on medical malpractice insurance reform. (James M Thresher -- The Washington Post)

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"This is the wrong tax at the wrong place at the wrong time," Ehrlich (R) told reporters as both chambers debated yesterday afternoon. "I've been very clear. Veto, V-E-T-O."

At a late-night news conference, he added that after the first day's work, he could not envision a bill emerging from the session that he would sign, saying that both the House and Senate bills had drifted too far from a deal he struck with the chamber's leaders before calling the session.

The veto threat puzzled and angered leading Democrats, who noted that it was Ehrlich who summoned them for the holiday session, who prodded them toward an agreement and who did so knowing that they supported the HMO tax.

House Speaker Michael E. Busch (D-Anne Arundel) said that, if the General Assembly puts a bill on the governor's desk at this point, it would be "unimaginable" that he would veto it. "It would be like grasping defeat from the jaws of victory," he said.

Senate President Thomas V. Mike Miller Jr. (D-Calvert) said Ehrlich "should sleep on it and declare victory. Really. It's a victory for him. . . . The essence of a deal is when everybody can declare victory."

The political forces that threaten to sink this week's session are the same that have bogged down negotiations on medical malpractice all year: a philosophical and personal gulf that divides Ehrlich, Busch and Miller. But fast work in the House and Senate last night indicated that the two chambers were at least within reach of an agreement.

The governor and legislative leaders agree that doctors need relief from rising malpractice insurance premiums, which in most cases will climb an average 33 percent starting New Year's Day. And they agree on a first step: establishing a state fund that would freeze rates or reduce the increase.

The measures that lawmakers approved yesterday would pay for that fund with a 2 percent tax on HMO premiums. Ehrlich, however, opposes the tax and reiterated his position that the state can instead use $30 million a year from the state budget, an approach that Democrats call irresponsible given a projected $311 million shortfall next year.

The second step toward controlling malpractice rates is limiting payouts to patients. Though Democrats are united in their support of the HMO tax, the complex bills approved in the two chambers differed substantially in the legal changes they seek.

The House bill pushed by Busch includes provisions absent from the Senate bill that would curb payouts available to malpractice victims for lost wages and future medical care. The bill also goes further than the Senate bill, sponsored by Sen. Brian E. Frosh (D-Montgomery), in limiting damages for pain and suffering and in restricting expert witnesses allowed to testify in malpractice cases.

Senate Minority Leader J. Lowell Stoltzfus (R-Somerset) warned that the differing approaches could keep a unified bill from reaching Ehrlich's desk before the session ends.

"It raises the stakes that we leave without any bill at all," he said.

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