A special session of the General Assembly will begin today with the House of Delegates and Senate debating their versions of medical malpractice reform plans, despite a warning from Gov. Robert L. Ehrlich Jr. yesterday that major deviations from the legislation he released last week are unacceptable.
A disagreement on key malpractice reform components among Ehrlich, House Speaker Michael E. Busch and Senate President Thomas V. Mike Miller is expected to make the first special legislative session in a dozen years a tumultuous affair.
The session will almost certainly result in a bill containing elements the governor opposes, Democratic legislative leaders said, which could set the stage for a gubernatorial veto.
Miller and Busch said yesterday that their chambers were likely to pass bills today or tomorrow that impose a new 2 percent tax on health maintenance organizations, creating a fund that would subsidize the insurance premiums of doctors.
"It would be fiscally irresponsible for us to come up with a spending package without a revenue source," Miller said.
The governor opposes the tax and has proposed using general fund dollars to create the stopgap account. The governor also supports stricter limits on jury awards and expert witness testimony - concepts known as tort reform - than the Senate is considering.
Late yesterday, Busch released his version of malpractice legislation, which he said was close to the governor's plan but included the HMO tax.
Ehrlich said yesterday that his bill was the result of compromise with legislative leaders which could unravel if altered.
Testifying separately before House and Senate committees studying solutions to the malpractice problem, Ehrlich urged lawmakers to consider the HMO tax as a separate bill.
"Bringing tax politics into tort politics is incredibly difficult," Ehrlich told a panel of senators. "Pass it if you can. I'll veto it. And you try to override it."
The governor said the Senate version of legislation, drafted by a committee headed by Sen. Brian E. Frosh of Montgomery County, does not contain sufficient limits on jury awards or the actions of trial lawyers. The Senate could vote on the Frosh bill today, possibly setting aside the governor's plan.
"A watered-down tort reform package with a tax is a lose-lose," Ehrlich said, calling Frosh's tort reform proposal "a joke."
The competing bills left doctors and hospitals searching for a balance that could pass both houses and be signed by the governor. Those groups want a funding source to hold down insurance rates, and have been calling for changes to the legal system to help in the longer term.
"The Senate bill is tort reform-light and funding-heavy," Joseph A. Schwartz III, lobbyist for the state medical society, testified at a Senate hearing. "The governor's bill is tort reform-medium and funding-light. What would we like? We'd like tort reform-heavy and funding-heavy."
When the House version came out, he pronounced it, "Tort reform-medium and funding-heavy."
Dan Doherty, a lobbyist for the trial lawyers, said he assumed that his group would oppose some of the tort reform provisions of the House bill which are similar to the governor's. "It's hard to respond definitely," he said last night. "The thing is still warm in my hand."
Busch said the governor's proposed stopgap fund of $30 million was insufficient and is proposing a $48 million account.
"This is not a perfect bill, and it's not going to be a perfect solution," Busch told the committee. "The citizens of Maryland are paying $50,000 a day for us to be here [for a special session]. We have to take all of this very seriously."
Although wary of getting caught among the competing political forces, doctors and hospitals generally were supportive of the House approach.
Ehrlich scheduled the special session this month to address what he has called a crisis in rising insurance premiums that some believe are forcing doctors to leave the state or reduce their practices.
The state's largest insurer of doctors, the Medical Mutual Liability Insurance Society of Maryland, has received approval from the state insurance commissioner for a 33 percent rate increase for 2005. Insurance bills are due Jan. 1, adding urgency to lawmakers' decisions.
But there is broad disagreement among politicians and interest groups on whether a crisis exists, and, if so, how it should be addressed.
Some had called on the governor and state insurance commissioner to freeze rates temporarily while a broader solution is crafted during the regular session that begins Jan. 12, rather than acting hastily now.
Ehrlich and Frosh laid out their respective positions during a lengthy Senate hearing. Despite the five television cameras and the crowd that had 50 people standing in the back of the hearing room, it had less the tone of a lawmakers' debate than a policy seminar.
The governor, running through the main points of his bill, several times used the phase "no magic" to refer to specific numbers or points. For example, he said the $30 million stopgap fund would not freeze premiums, but would, if applied across the board, mean an increase of about 12 percent for doctors. "We thought it was a legitimate number," he said.
Frosh was even more subdued. Rather than argue against the Ehrlich bill, he presented his own, noting that it included more money - $48 million to be split between rate stabilization and Medicaid reimbursement increases - and that it would be quicker to implement.
He said his bill would allow a board of Ehrlich administration officials to decide how to target the rate relief. "If you're not reducing the premium for dermatologists, you could take that money, double it [with a federal match] and put it into Medicaid reimbursements."
Later, however, the questioning turned more challenging.
Frosh pressed Alfred W. Redmer Jr., the state insurance commissioner, on whether the premium subsidies would go to all doctors or only those in high-risk specialties. Redmer said it would take several months to work out the details of the stabilization fund.
"We're here because it's an emergency," Frosh replied. "I would have thought you guys would have a plan."
Doctors and their allies, however, warned of a crisis requiring action this week.
"I feel like I am at my own wake right now, because my funeral is Dec. 31 at midnight. That's when I'm no longer an obstetrician," Dr. Steven M. Berlin, who has been delivering babies since 1976, told the senators. "If there's not significant action taken, you're going to lose a lot, a lot, a lot more people like me."
With doctors stressing the need to change the system, Bruce M. Flaxen, a past president of the Maryland Trial Lawyers Association argued, "This really isn't about a health care crisis. This is about doctors wanting tort reform."
"Doctors and hospitals and insurance companies don't need your protection," said Michael Bennett of Baltimore, who said his father had died of a hospital-acquired infection misdiagnosed by doctors. "Victims like my dad need your protection."
Another association witness, Jay Angoff, a former insurance commissioner of Missouri, told the panel that claims payouts appeared to be declining this year, and that Medical Mutual had enough of a surplus to cover its needs with no rate increase.
"Come back at Christmas 2009," he said. "You don't need to be here now."
Doctors reacted to the allegations that there is no pressing problem with sarcasm.
"I was glad to hear there is no crisis, because we hadn't heard that in Hagerstown," said Dr. Stephen L. Diehl, a radiologist from Washington County.
David M. Funk, a lawyer representing Medical Mutual, said the insurer "does not have too much surplus," simply a prudent amount to cover projected future claims. Otherwise, he said, the insurer could become insolvent.
"The present crisis would be a catastrophe if Medical Mutual were not here," he said.