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Mixed views of Ehrlich plan

THE BALTIMORE SUN

Gov. Robert L. Ehrlich Jr.'s medical malpractice reform plan won praise from doctors and his fellow Republicans yesterday but drew a cool reception from leading senators, who questioned the wisdom of rushing to adopt the legislation in Tuesday's special session.

House Speaker Michael E. Busch also questioned an unexpected provision in the bill that would give control of a multimillion-dollar fund to stabilize malpractice insurance rates to a five-member board controlled by the governor, rather than specifying in legislation how the money would be spent.

The governor remained confident yesterday that the dimensions of an agreement were firm, but as legislative leaders and interest groups got their first look at the details of his proposal, the course of next week's special session appeared far from certain.

Busch said he would work through the weekend to draft a new mechanism for spending the money. Sen. Brian E. Frosh said the senate will take up the malpractice bill drafted by a task force he chaired, along with the governor's plan. Ehrlich said he would accept no more than "minor tweaks" in his bill.

Ehrlich said the General Assembly has to pass legislation before Jan. 1, when most Maryland doctors must pay medical malpractice insurance premiums that are on average 33 percent higher than last year's. To suggest waiting is "ridiculous on its face," he said.

"The vast majority of members understand this is a crisis. The vast majority of members understand they need to get in and get this done," he said.

Frosh and other legislators said they think it would be better to take up the issue in the regular legislative session next month.

"I'm wondering why we're coming back between Christmas and New Year's," Frosh said. "I mean, we've got a problem, but it looks like we could address it in a deliberative fashion as opposed to coming in with some half-baked proposal from the administration."

Senate President Thomas V. Mike Miller, who negotiated extensively with Ehrlich on the bill but expressed wariness this week about whether the governor's plan would be acceptable, had left town for a wedding before the bill came out and could not be reached for comment yesterday.

Sen. Ulysses Currie, chairman of the budget and taxation committee, said that dealing with medical malpractice in a special session doesn't make sense under these circumstances.

"Given the fact that the governor came out with a bill in the last minute during the holidays when people are out of town, I don't think this makes any sense at all," he said. "One has to wonder if they, in fact, want to solve this problem, or if this is more headlines."

Interest groups were split over the proposal, with lawyers advocating for a delay and physician and hospital groups largely endorsing it but saying the bill should specify a source of funds to stabilize malpractice insurance rates.

Dennis O'Brien, a Towson lawyer who is a spokesman for the Maryland Trial Lawyers Association, said the group opposes some of the proposed limits on lawsuits - known as tort reform - such as changes in the limits on noneconomic damages that malpractice victims could receive.

In other cases, such as mandatory mediation, he said, the trial lawyers group supports the concept but needs time to study draft language.

Calvin Pierson, president of the Maryland Hospital Association, said the bill "is not overly complicated, and all these issues have been on the table."

Any delay now is "another bad idea from the trial lawyers," said T. Michael Preston, executive director of MedChi, the state medical society. "There is tremendous energy and momentum now."

Frosh said he received a letter yesterday from an attorney for the Medical Mutual Liability Insurance Society comparing the rates of policy cancellations this year to those in previous years.

According to the figures, the cancellation rate has gone up. At this point last year, it was 1.6 percent, and this year it is 2.7 percent. But the number of doctors in the state has increased, as has the number who have paid next year's malpractice policies in full. The chart shows that more doctors are waiting to pay their policies.

The changes aren't large enough to require immediate intervention, Frosh said, particularly because Attorney General J. Joseph Curran Jr. has said the insurance commissioner could temporarily halt the rate increase while legislators work on a solution.

Frosh said he received the 55-page bill yesterday morning and didn't expect to have time to read it until today. The legislation is so complex that the details of how the proposal is worded could make the difference between a bill that solves the problem and one that makes matters worse, he said.

"It's not like reading the funny papers," he said. "The summary is irrelevant. The summary is spin. The question is, what does the bill say, and even if they get the concept right, the question is, do they have the mechanics right?"

MedChi and the hospital association issued a joint statement yesterday opposing Frosh's malpractice bill, which the groups said would bring the state back into crisis within a year.

Funding has always been a sticking point in negotiations over a malpractice solution, but the issue got more complicated yesterday as questions about how much money is needed and how it would be spent were added to the debate over the source of the funds.

Former Sen. Francis X. Kelly, who has been helping Ehrlich try to win support for his proposal, said the governor's idea of giving control of the fund to a five-member board would allow the state more flexibility to react to the marketplace because spending would not be dictated by legislation.

Busch said the idea of giving a board power over the fund to prevent rate increases is too vague.

"I don't think the legislature is going to hand over $30 million without a solid structure for how it's going to be given out," he said. "I don't think this particular proposal is workable."

Ehrlich has suggested that the fund would need $30 million to stabilize rates and $12 million more to increase Medicaid subsidies for doctors in certain specialties. Legislative leaders have said $60 million or more is necessary.

Ehrlich's bill counts on paying for the plan through state general funds, but Busch and Miller have said they can't accept such a deal without knowing what would be cut from the state budget to compensate for it.

Instead, they favor removing health maintenance organizations' exemption from the 2 percent premium tax other insurance companies pay. Yesterday, Ehrlich repeated his opposition to the HMO tax.

Sen. Andrew P. Harris, a Baltimore County Republican and the Senate's only physician, said the bill has the right mix of tort reform, insurance reform and patient safety measures to stabilize rates in the long term.

But Harris, who served on the governor's malpractice task force, said he would vote against the measure if Democrats attached the HMO tax to the bill, a tactic he said was "pure and raw Maryland politics," not good policy.

"This really is a tax on the most affordable health care plans in Maryland," Harris said. "On the one hand, we're trying to solve the problem of the uninsured, and on the other hand we're increasing the tax on the most affordable health care plan. Any observer would say the obvious result of that would be an increase in the number of uninsured."

Sun staff writer M. William Salganik contributed to this article.

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