Gov. Robert L. Ehrlich Jr.'s administration is looking anew at the prospect of Maryland's joining more than a dozen states that limit lawyers' fees in medical malpractice cases.
The idea, which Democrats say is misguided, is part of a broader effort to find ways to curb doctors' escalating insurance costs. Lawyers' fees in successful medical malpractice cases vary, but they typically range from one-third to 40 percent of a jury award or settlement.
"This would put more money in the pocket of the injured person," said Richard P. Kidwell, a lawyer for Johns Hopkins Health System who sits on a task force advising Ehrlich (R) on medical malpractice reforms. "The lawyers can still make a very nice living at a lower going rate."
The Maryland State Medical Society, which lobbies on behalf of doctors, pushed for such a measure during the past legislative session. But Ehrlich, while seeking other malpractice changes, remained neutral on the bill out of deference to Senate President Thomas V. Mike Miller Jr. (D-Calvert) and other key Democrats in the General Assembly who make their living as trial lawyers.
With rising insurance rates continuing to discourage doctors in high-risk medical specialties from practicing, several ideas are getting another look, however, said Donald J. Hogan Jr., an Ehrlich policy aide who is coordinating the work of the malpractice task force.
"That was then; this is now," Hogan said. "There's a lot of interest in looking at this. It's clearly on the table at this point."
Trial lawyers and their legislative allies argue that limiting lawyers' fees in Maryland would make it more difficult for some patients with legitimate injuries to find representation -- particularly in cases in which damages are likely to be relatively modest.
"This is all about trying to close the courthouse door," said Dennis O'Brien, public relations chairman for the Maryland Trial Lawyers Association. "It harms a person who can't find a lawyer to take their case."
Lawyers in medical malpractice cases typically work on a contingency basis, meaning they are paid only if they secure a jury award or settlement for their client.
O'Brien said efforts to reduce lawyers' fees generally are pushed by Republicans seeking to limit the financial influence of trial lawyers, a profession that makes substantial political donations to Democrats.
A bill introduced this year in the Maryland House of Delegates would have created a sliding scale of permissible lawyer fees for medical malpractice cases: An attorney working on contingency could take 40 percent of the first $200,000 recovered; 33.3 percent of the next $200,000 recovered; 25 percent of the next $200,000 recovered; and 15 percent of any additional amount recovered. The bill died after limited debate.
Other states have passed tighter restrictions. In California, for example, plaintiffs' attorneys can claim 40 percent of only the first $50,000 on an award. The allowable percentage tails off as the size of the award increases.
According to research presented last week to Ehrlich's task force, 11 states have passed restrictions on lawyers' fees in medical malpractice cases. Six other states have broader limits that apply to malpractice cases as well. The District and Virginia have no such limits on fees.
During the past legislative session, Ehrlich's unsuccessful medical malpractice bill focused exclusively on limiting payouts to patients injured by doctors. His legislation, for example, would have lowered the $635,000 cap on non-economic damages -- commonly referred to as compensation for "pain and suffering" -- to $500,000.
T. Michael Preston, executive director of the Maryland State Medical Society, said it makes sense to offset such reductions to patients by reducing the share their attorneys can receive.
Some on Ehrlich's task force said that the only realistic way to get the General Assembly to approve a reduction in lawyers' fees is to incorporate the measure in a larger set of reforms, including some more palatable to Democrats. Democrats, who have accused Ehrlich of stacking his task force with like-minded appointees, argue that insurance reforms and better policing of doctors are the best ways to reduce malpractice costs in the long run.
Sen. Brian E. Frosh (D-Montgomery) said in an interview last week that he remains cool to the idea of capping lawyers' fees, which he, too, argued could make it harder for some injured patients to find lawyers. "I'm not a big fan of the tort liability system," said Frosh, chairman of the Senate Judicial Proceedings Committee, which has jurisdiction over medical malpractice legislation, "but one of the ways you ensure access is making sure people have lawyers."
Ehrlich is expected to continue his push for malpractice reforms today in an appearance in Salisbury at the Peninsula Regional Medical Center. Last week, he held a closed-door meeting with Frosh on the issue and sent several aides to meet with House Speaker Michael E. Busch (D-Anne Arundel).
The state's largest malpractice insurer, Medical Mutual Liability Insurance Society of Maryland, raised premiums by 28 percent this year. The company has proposed a 41 percent increase next year. The Maryland Insurance Administration has scheduled hearings on the proposal this week.