The malpractice plan


GOV. ROBERT L. Ehrlich Jr. finally unveiled his plan to reform medical malpractice insurance yesterday, and here's the early verdict: Lawyers, doctors and insurance companies have no room to complain. Only taxpayers have a legitimate gripe. But even their multimillion-dollar burden may be an acceptable trade-off if they get a better health care system in return.

As we have stated before, the Ehrlich administration took too long before it got serious about negotiating the malpractice issue with legislative leaders. As a result, lawmakers got copies of Mr. Ehrlich's 60-page compromise proposal just a long Christmas weekend before they're expected to vote on it. Happy holidays and enjoy your homework, delegates and senators.

Still, there are many good things in Mr. Ehrlich's bill. It proposes mandatory mediation to settle cases of alleged malpractice and a higher standard for medical experts who testify in malpractice cases. It would cap the payments for pain and suffering in wrongful deaths, eliminating a kind of triple-dipping that allows the deceased's estate, spouse and offspring to collect individually. It would also change the way certain types of economic and medical damages are calculated, an overdue reform.

There are also several measures to hold the collective feet of hospitals and physicians to the fire. Unfortunately, much less is done to reform insurers -- unless one counts the state's hiring a "people's counsel" to monitor malpractice insurance rates. Lawyers get off even easier.

But the most critical elements of the bill are, unfortunately, the most expensive. The governor's proposed re-insurance fund would defray some of the cost of malpractice claims. The fund would handle claims that exceeded an insurer's ability to pay. The specifics haven't been worked out, but the first-year cost is $30 million. Over the next three years, it could amount to $90 million or more. The legislation would also increase Medicaid payments to high-risk specialists at a cost to the state of about $12 million per year.

Only these last two proposals would give immediate financial relief to doctors. That brings the price of medical malpractice reform to $126 million potentially. How to pay for this new spending? Legislative leaders would like to tax health maintenance organizations. But even though a majority of states have similar taxes, Mr. Ehrlich is adamantly opposed to the idea. He wants the money to come from the general fund. Yet, as Mr. Ehrlich has so often noted in the past, Maryland is facing long-term budget deficits. Adding such a large chunk of new spending without a matching source of revenue is irresponsible.

But while it's modest and costly, Mr. Ehrlich's malpractice proposal is probably the best hope for reform in the near term -- if Mr. Ehrlich himself doesn't stand in its way. He can't endorse new nine-figure spending and not offer a way to pay for it (beyond cutting unnamed state programs at some later date). Legislators have to show some flexibility, too. An HMO tax may be sensible, but nobody wins if the governor vetoes the bill. Is a compromise possible? We must hope so. If next week's session fails to produce results, it bodes poorly for an already dysfunctional State House. Too bad there's no legal remedy for political malpractice.

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