MARYLAND’S TORT REFORM BATTLE: The Year in Review - Part 1 With a population of over five million citizens, the state of Maryland is located in the Mid Atlantic region surrounded by two states, West Virginia and Pennsylvania, each in crisis due to escalating medical malpractice liability premiums. It was not surprising that, when Maryland’s largest private medical liability carrier, the doctor owned Medical Mutual Liability Company, was granted an average 35% increase in rates beginning Jan. 1, 2004, cries of alarm were heard from physicians throughout the state. The lines were drawn for the next battle in tort reform in America. THE SETTING Maryland is a diverse state with an eastern, Atlantic coast, a wide Chesapeake Bay dividing the state, then typical urban and suburban communities of metropolitan Baltimore and Washington D.C. with the Potomac River to the south. Farther to the west the state regains its rural character with smaller communities and rolling hills leading to modest mountains in the far west of the state that borders West Virginia. It is said that the greatest, per capita, density of lawyers in the country is in the Washington-Baltimore metropolitan area. The political climate in Maryland is also diverse and rolling. In 2003, Congressman Robert Ehrlich Jr. a Republican, was elected to the Governorship of the state. He was chosen to preside over a Maryland General Assembly with an unbroken history of Democratic dominance. The President of the Senate, Thomas Mike V. Miller Jr., a lifelong Democrat, is the country’s longest running President of a state senate- with over thirty years as an elected state senator. And while the majority of the lawmakers in Maryland return to businesses when the 90 day legislative session is over, Senator Miller, Governor Ehrlich and almost all of the other “movers and shakers” in the government are lawyers- trial lawyers. There are two physicians in the General Assembly - a Republican anesthesiologist in the Senate and a Democrat Emergency Room physician in the House of Delegates. THE YEAR BEGINS With malpractice rates scheduled to increase an average of 35% for doctors (up to 65% for some surgeons) January 1, 2004, the state medical society, the MedChi, organized a rally on the steps of the Statehouse for opening day of the Session, January 21, 2004. Over two thousand physicians from across the state came to hear speeches by doctors, by the president of the AMA Donald Palmisano, MD, FACS, and by patients. The governor made an unscheduled appearance in the cold that morning as well. All spoke passionately about the effects of the increases on the access to healthcare for Marylanders. There were cries of “Tort Reform Now!” and “Save Our Docs”. The lead Op/Ed story featured in The Baltimore Sun that day was written by the President of the Maryland Chapter of the American College. It declared a “time for change” and proclaimed that “the health care of all of the citizens of Maryland warrants this effort.” Despite the enthusiasm of the participants and the obvious urgency of the situation, at least to physicians, it was disheartening to see how the story was portrayed that night on TV and in the press the next day. The speakers and the Rally were given 30 seconds or so of airtime while the “victims” of “rampant” medical malpractice- shown testifying to concerned lawmakers in a Senate conference room- were given three minutes. There was no mention of the sixty buses required to bring in physicians from all over the state, nor of the transportation provided free by the Trial Lawyers lobby to bring the “victims” to Annapolis that day. What was clear was that the million dollars that had been earmarked by the lawyers to fight Tort Reform in the session was certainly going to be spent in the next ninety days. THE SESSION Over the ninety-day session, hearings were conducted by numerous committees. Hospitals, physician groups, the state medical society and insurers banded together to form an Alliance to Preserve Access to health care. Formal testimony and informal discussions were held with leaders on both sides of the aisle, in the statehouse and the governor’s office. Bills were introduced with much public debate. Privately, the legislation was proclaimed “dead on arrival” by many insiders. In the end, the session closed without a bill even being presented on the floor for a vote. Though some observers thought the effort for tort reform was under funded or not pursued aggressively enough, the most prevalent assessment came from lawmakers and physicians alike- nothing was going to be changed until there was “blood in the streets”, i.e. patients would have to feel the pain and demand reform themselves. THE GROWING STORM January’s enthusiastic optimism was replaced by demoralizing defeat when the session closed in April. All members of the Alliance to Preserve Access left Annapolis with the same overwhelming frustration. During the summer months that followed, the governor visited all the hospitals in the state talking with medical staffs, urging doctors to get involved, to contact their lawmakers and to get their patients involved as well. In July the President of the Maryland Chapter of the American College of Surgeons met with representatives of Governor Ehrlich’s office to discuss the situation and review the issues relevant to the practice of surgery. Changing requirements for expert witnesses as promoted by the American College of Surgeons was included among necessary reforms. “Good Samaritan” reform to better protect surgeons when they provide emergency care was also advocated. At this time, the governor was seen as a positive force for tort reform. In separate meetings and through the press various suggestions were proposed by lawmakers- most appeared to be self serving proposals intended to preserve the status quo. Many letters to the editor by the Maryland Chapter and others decried the measures. Both the Senate and the governor appointed special panels to study the problem and make recommendations in the fall. Throughout 2004, record verdicts and settlements were being suffered by the Medical Mutual Liability Company and the three other remaining malpractice insurers in the state. Another round of rate increases loomed. Med Mutual requested an additional 25% (average) increase for January 1, 2005. This increase on top of the prior year’s increase and the loss of a premium rebate amounted to a 65%-75% increase for surgeons over the two years. GE Medical Protective, the country’s oldest medical malpractice carrier, requested a 67.9% increase in rates so that it would be on par with Med Mutual. Clearly, the lack of reform during the 2004 session was accelerating the crisis. Continued -- Part 2