No one is sure who fired the first salvo in this battle of titans over medical malpractice insurance, but by January the charges and countercharges, from doctors to lawyers to insurance companies and back again, were flying fast and furious through the mails, over the airwaves, in the newspapers:
"Everyone loses in medical malpractice actions except the legal fraternity," a doctor wrote to the Baltimore Sun.
"Blaming the victims and the judicial system for high insurance premiums is a classic example of 'the big lie,' which is an untruth that gains public credibility through repetition," the Maryland Trial Lawyers' Association said in a report prepared for its members, the media and the General Assembly.
Since Maryland's approximately 6,000 physicians were hit last summer with increases of up to 135 percent in malpractice insurance premiums, they have awaited the opening of the General Assembly to wage what will likely be a classic battle for industry reform.
What makes the battle more interesting, however, is that the industry that they want changed is not their own or even that of the insurers who are demanding higher rates, but rather the fraternity of lawyers, especially trial lawyers. Doctors say that lawyers, through an ever-increasing number of lawsuits, are driving insurance rates through the roof and forcing insurers to abandon the business.
Although doctors are not the only ones suffering the effects of skyrocketing insurance premiums -- lawyers, bus drivers, day care center operators and municipal officials across the nation have been affected -- theirs is the most visible campaign under way here to bring rates under control. Primarily they are trying to make lawsuits more difficult to file, cap the size of some jury awards, control legal fees and bring down the costs of lawsuits.
Insurance companies, which have maintained that they were unfairly blamed for a similar insurance drought 10 years ago, have joined the doctors in supporting so-called "tort reforms" as a way to bring down the cost and increase the availability of liability insurance.
The state's legal community has geared up to protect itself -- and the public, legal spokesmen say -- from the raft of proposals that lawyers claim will unfairly limit individuals' right to sue. Calling tort reform "largely symbolic," their representatives are aiming fire at the insurance industry, which they portray as greedy, secretive and manipulative.
The battle goes public tomorrow when the Senate Judicial Proceedings Committee holds the first of several scheduled hearings on more than two dozen legislative proposals aimed at the insurance problem, which legislative leaders have called among the most difficult issues lawmakers will confront this year.
The bills could put some legislators in an uneasy position, because nearly half of the members of the House and Senate committees voting on the bill are lawyers.
Another part of the difficulty, many lawmakers say, is that the issue is so complicated they either do not understand it or are not convinced that any of the bills they pass will solve the problem.
"I don't know as a result of this if I'm going to be able to affect anybody's rates. I know my rates aren't going to go down," said Sen. Thomas V. Mike Miller (D-Prince George's), a lawyer and chairman of the Senate panel that will review much of the legislation. "But maybe it's worth a try because $60,000 a year in insurance premiums is simply too much to pay for the profession of bringing new life into the world."
That is precisely the view the doctors are trying to foster. With a well-organized campaign of letters, personal visits, briefings and calls to their legislators, doctors' representatives are making the case that "the tort system is at fault," said Dr. William Finney, a Baltimore neurosurgeon. Finney is one of the founders of Marylanders for Malpractice Liability Reform, a doctors group formed in the fall. His reference was to tort law, the branch of law pertaining to injury or damage that can result in a claim for compensation.
"We have to take responsibility for some things in life," he said. "One has to assume that at some point a sickly baby is going to be born because of an act of God, not because of malpractice."
According to its executive director, the doctors group collected about $200,000 in the last three months just from contributions from doctors and medical societies. Using mailing lists and information supplied by the American Medical Association and the state's leading insurer of doctors, the group sent letters to doctors inviting them to two rallies and urging them to contact their representatives.
The response has been strong, said many lawmakers. Visits "have become an everyday occurrence," said Sen. Howard Denis (R-Montgomery), "and I must get several letters a day."
Some physicians have resorted to more personal approaches, as Del. Pauline Menes (D-Prince George's) found out when she had surgery on her feet in December and had a follow-up visit with her orthopedic surgeon, whose specialty is among those hardest hit by the rate increases. During the examination, she recalled, "He said, 'By the way, I want to talk to you about something.' I can't remember if I had the bandages off or not."
Insurance companies have followed more traditional methods. Usually one of the best represented industry groups in Annapolis, with at least 20 lobbyists listed among the more than 200 registered this winter, the firms and their representatives have carefully prepared documents showing unprecedented industry losses in recent years, which they tie directly to the increased frequency and expense of lawsuits.
J. John Spinella, executive director of Medical-Mutual Liability Insurance Society of Maryland, the state's primary insurer of physicians, said his company is among the few that has remained profitable -- but only, he said, "as a result of prudent management, including, we think, prudent rate increases," which averaged 29 percent last year. Spinella said profits shrank from $11.4 million in 1982, after two years of losses, to $2.3 million in 1984, while in the same period the average claim paid by Med-Mutual rose from $82,000 to $128,000. "We're seeing more claims being filed . . . and we're seeing bigger payouts," he said.
Faced with such a barrage, the legal community has fought back. The Maryland Trial Lawyers' Association, whose members tend to represent accident victims, has led the counterattack.
Going head to head with the doctors for the title of advocate of the public interest, the lawyers have brought in documents from consumer representatives and insurance industry trade journals to bolster their argument that the insurers overstate their losses. If losses exist, the lawyers said, the reason is that the industry relied too heavily on interest income in the past decade and is penalizing the public to make up losses from poor business deals. Insurance executives deny that or say the premium increases were fueled mainly by lawsuits.
Trial lawyer group vice president John J. Sellinger argued that "lawyers are not the ones going to get hurt here, clients are," particularly the poor, who are most vulnerable to inadequate medical care.
To buttress that point, Sellinger said that some plaintiffs in malpractice cases will appear at the hearings "so that when people talk about limiting pain and suffering damages, a key proposal , they'll know what pain and suffering is."
Eschewing use of a paid lobbyist because "it might hurt us; we were told we already have a pretty good reputation down here," Sellinger said, the trial lawyers group is relying on its long connection with the legislature, asking members who have a "relationship" with a lawmaker to discuss the issue.
That has not been difficult, because 12 of the House Judiciary Committee's 22 members are lawyers, 10 of them practicing. Five of 11 members of the corresponding Senate panel are lawyers. Many members of the committees have direct economic interest in the proposals because of the type of law they practice.
It is a fact that makes some members uncomfortable. "I kind of wish I weren't a lawyer because I feel if I don't do something, the medical profession is going to say, 'See, see, see, the lawyers are protecting their own,' " Miller said.