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Ehrlich on 'malpractice tour'

For an apparently healthy guy, Gov. Robert L. Ehrlich Jr. is spending a lot of time in hospitals lately.

On Tuesday, he was in Holy Cross Hospital in Silver Spring. Today, it's Washington County Hospital in Hagerstown. During the past few weeks, he's been in hospitals in Annapolis and Towson and Salisbury. For variety, he stopped off yesterday at a retirement community, Oak Crest Village in Parkville.

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He's not going for a physical. Rather, the governor has been devoting a hefty share of his public schedule recently to press his case for reforming how the courts deal with medical malpractice cases.

Rising malpractice premiums, he and others say, are driving doctors out of practice or out of the state and jeopardizing access to care for Marylanders.

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Interviewed at his Holy Cross stop this week, Ehrlich said his main goal is "public education" and to encourage doctors toward "a new kind of activism," to meet with legislators and urge them to vote for malpractice reforms.

But legislative leaders decry the governor's tours as grandstanding.

One participant described it as a page out of the "Republican playbook," echoing President Bush's criticisms of trial lawyer and Democratic vice presidential candidate John Edwards, the North Carolina senator.

"It's the tour, the malpractice tour," said House Speaker Michael E. Busch, unimpressed with the governor's hospital itinerary. "Bruce Springsteen, the Dixie Chicks -- and Governor Ehrlich."

The malpractice debate hasn't garnered nearly as much attention as the battle over legalized slot machines in the state capital, but has been similarly divisive with no shortage of study groups convened and trial balloons floated.

As with slots, the Republican governor and the Democratic-led legislature remain deadlocked on what should be done.

With disagreement over almost every facet of the malpractice problem -- including whether it is a problem -- it's not surprising that there's also disagreement over the impact and motives of Ehrlich's travels the past month to promote reform.

Having impact

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The governor said he believes his efforts are having an impact. He's encouraged by a recent call by Senate President Thomas V. Mike Miller for a special legislative session to create a fund with public monies that would be used to freeze malpractice premiums.

"I see some momentum," Ehrlich said. "A majority of the members of the legislature have crossed the threshold -- they have an understanding of the issue" and of a need to take action.

Miller, however, a skeptic on the topic of malpractice reform, said the governor's hospital appearances are exacerbating divisions on the issue.

"If he would stay in Annapolis and work, rather than traveling around the state, we could solve this," Miller said.

Ehrlich's hospital visits usually follow the same general script: He meets with doctors and hospital executives in private, then conducts a brief news conference, often in a spot that will give a medical backdrop to a news photo. The hospitals he has visited tend to be ones that deliver lots of babies; obstetricians have the highest malpractice premiums.

Tuesday's news conference, for example, was held in a newly built intensive care unit for newborns at Holy Cross, which will open for patients in a few weeks.

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Introduced by the hospital chief executive officer, the governor stood at a podium, with doctors -- several in white lab coats or blue scrubs -- fanned out behind him.

Rising malpractice premiums, the governor said, were leading "the best and the brightest" to retire or teach rather than caring for patients. "This leads to a health care access crisis, which is what we have on this issue."

Beyond the Ehrlich visits, doctors and hospitals are making their own efforts to reach and influence legislators.

"To John W. Citizen, it's rich doctors fighting with rich lawyers," said Dr. Adrian Long, chief medical officer at St. Agnes HealthCare. The Southwest Baltimore hospital is bringing legislators in, one at a time, to talk with the medical staff about malpractice issues, and "encouraging physicians to get active in making donations and writing letters, and encouraging their patients to write letters."

The public needs to understand that malpractice rates can affect care, Long said. For example, he said, St. Agnes is having more trouble getting doctors in some specialties to agree to be on call to respond to the emergency room.

If high malpractice premiums drive away specialists, there will be fewer to work in emergency rooms, putting pressure on the remaining doctors on call.

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"We need to articulate to our elected officials that this is to the point where it's going to impact their constituents," said Christine M. Stefanides, chief executive officer of Civista Medical Center in La Plata.

Her hospital and three others in Southern Maryland plan a joint "town hall meeting" next month with legislators and local officials.

Of Civista's eight active obstetricians, about half are leaving obstetrics or curtailing delivery of babies because of the sharp rise in malpractice rates, said Stefanides.

T. Michael Preston, executive director of MedChi, the state medical society, said his organization has written to its 8,000 members, urging doctors to "communicate with elected officials."

And, he said, the society is planning a new political action committee that would raise money to target legislators who block a solution.

Political overtones are unavoidable in the discussion of malpractice reform, both in Maryland and nationally. Republicans have generally pushed reform, while Democrats have often allied with trial lawyers against many reform proposals.

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Lawyers make about two-thirds of their political contributions to Democrats nationally, while doctors and other health professionals make about two-thirds of their contributions to Republicans, according to the monitoring organization Center for Responsive Politics.

In Maryland, different contribution reporting requirements make it more difficult to track contributions by profession, but the general pattern is the same.

'In their pocket'

"The legislators are only hearing from the trial lawyers, and the trial lawyers have the Democrats in their pocket," contended state Sen. Nancy Jacobs, a Republican from Cecil and Harford counties. She urges more political action by doctors to balance the influence of trial lawyers and sent out a political fund-raising letter this month pointing out her support for malpractice reform.

Miller, however, said Ehrlich and other Republicans are using malpractice reform as "a Republican wedge issue."

Alluding to Republican criticism of Democratic presidential candidate John Kerry's Vietnam service, Miller said, "This is the Swift boat issue in Maryland, using divisive tactics and rhetoric."

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Miller said the issue could be solved quickly by freezing malpractice premiums and setting up a state fund to pay claims if the premiums aren't sufficient. Such a fund is one of the few malpractice proposals to win the support of both MedChi and the Maryland Trial Lawyers Association.

That fund could require $30 million for next year, according to MedChi estimates.

But Dennis O'Brien, a spokesman for the state trial lawyers organization, said his group believes that a premium increase isn't needed, so the fund wouldn't have to be used.

Ehrlich has indicated an interest in the fund as a short-term way to prevent a proposed 41 percent increase in malpractice premiums sought by the doctor-owned insurer that covers three-quarters of Maryland's private physicians.

However, the governor said, it would have to be part of a package that includes malpractice reform to control costs in the future.

Miller, however, said he and other Democrats will continue to oppose reforms that limit the amount that injured patients can recover. "We are a blue state," he said of Democrat-leaning Maryland. "We're not going to adopt any major bills that are going to limit people's rights."

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Malpractice reform menu

Here's a look at some of the ideas being discussed to reform the medical malpractice system, and how these ideas are viewed by the Ehrlich administration and by others.

Stabilization fund - the short-term fix

The idea: Freeze malpractice premiums at current rates, and create a state fund to pay excess claims if the premiums prove to be insufficient. (Since claims take several years to be filed and adjudicated, it could be five years or more before it's known whether this year's premiums are insufficient.)

What Ehrlich says: Initially cool to the idea, the administration now says it's a possibility under certain conditions. It prefers funding sources other than taxes, and it says the creation of a fund must be tied to other reforms in the system. Without changes in how the court system deals with malpractice - which would take several years to have an impact on costs - a state fund simply shifts costs rather than solving the problem, the administration says.

What others say: The concept has been supported by MedChi, the state medical society, and the Maryland Trial Lawyers Association - two groups usually opposed on any malpractice issue. Senate President Thomas V. Mike Miller, generally an opponent of reform, suggests a special session to create the fund, and says there are non-tax sources, such as a charge on drunken drivers, that could generate the money. Miller, however, opposes tying the fund to any reforms that limit the ability of malpractice victims to recover damages. And the trial lawyers say that since the proposed 41 percent increase in malpractice premiums isn't needed, the fund would probably not have to be spent.

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Caps on "pain and suffering" awards

The idea: In Maryland, there's no limit on how much plaintiffs can collect in economic damages, such as medical costs and lost wages. Additional payments are capped at $635,000 (a number that increases with inflation). An Ehrlich bill, supported by doctors and hospitals but killed in the Senate this year, would have lowered the cap to $500,000.

What Ehrlich says: The governor hasn't abandoned the idea, but says the cap has gotten too much attention, and that lowering it would have only a small impact on costs.

What others say: The trial lawyers, bitterly opposed to any reduction in the caps, say they are encouraged by Ehrlich's position.

Mandatory mediation

The idea: Require plaintiffs and defendants to try to work out their differences before going to court, reducing the costs of litigation.

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What Ehrlich says: He supports it.

What others say: Trial lawyers, Senate President Miller, House Speaker Michael E. Busch and health care providers generally support the idea or have no objection to it. Trial lawyers say there are details to be worked out on how the process would work.

Changes in the way damages are calculated

The idea: Reducing costs by such means as tying medical payments to Medicare rates, rather than higher "sticker price" rates that doctors might charge some patients.

What Ehrlich says: He supports it.

What others say: Generally supported by providers. Opposed by Senate President Miller and by trial lawyers, who see it as a way of preventing victims from collecting fair compensation.

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Changes in the way damages are paid out

The idea: Now, future medical costs are estimated by expert witnesses. If the provider is found to be at fault, that amount is paid to the victim at the time of the verdict.

What Ehrlich says: Supports a system in which, if the victim dies and thus reduces the need to pay future medical costs, that amount would be saved for the system.

What others say: Trial lawyers said provisions in this year's Ehrlich bill would have unfairly penalized victims, but don't rule out some form of the concept.

Potential penalty for rejecting settlement

The idea: If one side in a malpractice case offers a settlement and the other side rejects it and loses the case, it should pay legal costs of both.

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What Ehrlich says: Supports the idea.

What others say: Trial lawyers say the way it was drafted in Ehrlich's bill this year was one-sided, potentially penalizing plaintiffs but not defendants. They say they are willing to consider a balanced rule, similar to the one used in federal malpractice cases.


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