With legislators scrambling to change their holiday plans to be in Annapolis on Dec. 28 for the General Assembly's first special session in more than a decade, continued disagreement over plans to limit medical malpractice insurance increases could sink any hope for a solution before doctors must pay their higher premiums.
It's uncertain how many legislators will skip the session because of holiday plans, and the remaining partisan divides, coupled with the need for supermajorities to pass legislation, could make the $45,000-a-day special session a flop, legislative leaders said yesterday.
Senate President Thomas V. Mike Miller said he does not agree with the governor and House speaker on details of limits on medical malpractice lawsuits, and that he doesn't expect lawmakers to come together on a plan until at least the first week of the regular legislative session, which begins Jan. 12.
Miller said he, Gov. Robert L. Ehrlich Jr. and House Speaker Michael E. Busch have a general agreement on some concepts, but the governor has not produced a bill that would outline the specifics of limits on lawsuits, known as "tort reform." The legislative leaders and the governor also remain divided over how to pay for a fund to hold down doctors' premiums. "I thought it was unwise to call a special session without a complete agreement," Miller said.
Ehrlich's announcement that he would call the session came after three hours of meetings Friday with Miller and Busch. Ehrlich signed the executive order calling for the session at 5 p.m. yesterday.
But as has frequently been the case in recent months, the three top Annapolis leaders are offering different interpretations of what they agreed to in the meeting.
Ehrlich said after Friday's meeting that the three were "95 percent" in agreement. Yesterday, Shareese DeLeaver, his spokeswoman, said, "The only outstanding issue was the revenue source."
Busch said yesterday that Miller agreed to all of the more than two dozen tort reform proposals that Ehrlich listed on a worksheet used in the Friday meetings. "Mike Miller was basically on board with all the tort reform, which surprised me," Busch said.
Not so, Miller said.
"The speaker passed out a list of the governor's proposals and kind of implied they have been agreed to, which couldn't be farther from the truth," Miller said. "Half the things that are on the list are off the table. And the things that are on there, the devil is in the details."
Miller, Busch and Ehrlich agreed in October on the broad outlines of a plan to create a fund that would hold off immediate rate increases and to enact legal reforms that would reduce future rate increases.
The pressure for a special session before Jan. 1 came from the due date for next year's premiums through the Medical Mutual Liability Society of Maryland, which insures most of the state's doctors. Med Mutual premiums will rise an average 33 percent this year, on top of a 28 percent increase last year. Doctors who do not make at least an initial payment by Jan. 1 could find their coverage revoked.
Miller and Busch said yesterday that they continue to favor paying for the $60 million fund by eliminating the exemption for heath maintenance organizations to the state's 2 percent insurance premium tax. Ehrlich has said he opposes paying for the fund through a new tax.
Miller and Busch say the governor has proposed using general funds and has not specified a revenue source. Both said yesterday that the general fund is not a viable option.
Maryland faces a $311 million gap between projected spending and revenue next year, and Busch said that it would be "irresponsible" to agree to a new $60 million expenditure without knowing what would be cut to compensate for it.
Del. Anthony J. O'Donnell, the House minority whip, said it is ironic that Democrats are objecting to creating the fund without saying where the money would come from since they did much the same thing in approving more than $1 billion in education spending increases through the Thornton plan without naming a funding source.
'A much bigger crisis'
"This is a much bigger crisis and a much smaller dollar amount," the Southern Maryland Republican said.
The requirements of this session make it more difficult for the legislature to pass bills without bipartisan consensus.
Ehrlich said he envisioned committee meetings Monday and a full session with a vote the next day.
But in the week between Christmas and New Year's Day, many legislators had planned to travel, and neither Miller nor Busch knew how many would attend the session, making the political dynamics of the General Assembly an unknown at a time when small vote margins could make a difference.
A simple majority of the Assembly is needed for a quorum. But a three-fifths vote in both chambers - 85 members in the House and 29 in the Senate - is required to pass emergency legislation that would take effect immediately, such as the malpractice bill, and to override vetoes.
Democrats hold a 98-43 majority in the House and a 33-14 edge in the Senate. A loss of Democrats to holiday travel or to lobbying by the governor and other Republicans could prevent a three-fifths vote.
Del. Curtis S. Anderson, a Baltimore Democrat, said he was canceling plans to visit his daughter in New York City so he can attend the session.
Convening the legislature during the holidays, he said, "doesn't seem practical," and he wondered how lawmakers not familiar with complex medical malpractice issues could make effective judgments in a compressed time frame.
"If it's that important a decision, give us some time to come up with a decision that is informed," Anderson said. "It's forcing us to make a decision that day. And I don't think any citizen of the state of Maryland thinks that kind of decision can be made in one or two days."
Sen. Brian E. Frosh, a Montgomery County Democrat who chaired the Senate's malpractice task force, said it is "bizarre" that Ehrlich would have called the session without a consensus, knowing that the legislature could pass a bill he opposes. Frosh said he guesses that means Ehrlich won't veto a bill, even if it relies on the HMO tax.
'Doesn't have a choice'
"I think he either signs it or lets it become law," he said. "I think he doesn't have a choice."
Meanwhile, doctors and academics at a medical malpractice panel discussion in Annapolis questioned yesterday whether the state's approach to reform would have any impact at all.
Dr. Chiachuen Su, 65, a thorasic and cardiovascular surgeon from Hagerstown who attended the discussion, said he plans to stop practicing at the end of the year. He said he cares less about whether lawmakers stop this rate increase than about whether they change the culture of malpractice litigation.
"If there is the special session, if it has a basic, total reform so I don't have to worry about patients suing me every day, I will return," he said.
Sun staff writer David Nitkin contributed to this article.