MARYLAND’S TORT REFORM BATTLE: The Year in Review - Part 2 SURGEONS MOBILIZE In August, Council Members of the Maryland Chapter of the ACS were approached by a number of surgeons in the community asking for advice and help. As a result of these requests, an emergency meeting of surgeons from around the state was held September 18, 2004 at a conference center in Ellicott City, Maryland. Approximately 100 surgeons of all disciplines from across the state attended. Also present were the only physician in the state senate and two lawyers- one an expert in anti-trust law, the other in healthcare business law. During the four-hour session immediate ways to stabilize the situation were outlined, as were elements of reform needed to address the liability crisis. Importantly, calls for a “strike” date were tempered by a sobering dissertation by the lawyer regarding anti-trust laws. Mr. Christian Shalgian, Senior Government Affairs Associate from the American College of Surgeons reviewed the effectiveness of efforts of other surgical groups from around the country. Though the meeting concluded without a date for a “strike”, surgeons left with a clear understanding of which reforms were effective, necessary and achievable. A network for rapid communication across the state was formed. All surgeons were determined to become much more active. Significantly, two separate groups of surgeons from western Maryland resolved to do much more. PRESSING THE ISSUE Because January 1, 2005 was the date the additional rate hikes were due to go into effect the time was short for definitive action. Two groups of surgeons, one from Hagerstown, MD and the other from Frederick, MD decided separately to close their practices. For each of these communities of over 50,000 in western Maryland, these multispecialty surgical groups provided 65% to nearly 100% of the surgical care. On November 15, 2004, the Hagerstown group would stop seeing elective patients for at least a week and then all patients thereafter if significant reform did not materialize. The group from Frederick said it would stop caring for patients entirely on January 1, 2005. Each group’s intentions quickly became known and statewide publicity resulted. The Hagerstown group enlisted media consultants to assist in getting the message out. A very effective web site was established to keep all informed. The issues causing the imminent loss of access to care were discussed almost daily by the media. The impact of the medical liability crisis upon many of the state’s doctors and hospitals became increasingly apparent. A survey commissioned by the Maryland Hospital Association highlighted the economic impact the liability crisis was having on the business community. A SPECIAL SESSION In Annapolis, lawmakers were reviewing recommendations from the special panels convened during the summer. Lawmakers who felt they had put the issue of tort reform to rest during the previous General Session now were compelled to address it again. Editorials began to appear in national newspapers. Interviews were given on national TV programs. Because the medical community had pressed the issue and not allowed it to be ignored or postponed until the next General Session, something had to be done. Behind the scenes, the governor and key lawmakers met. Provisions of a compromise bill to address essential reforms were reportedly agreed upon. The governor called for a Special Session of the General Assembly to be held between Christmas and New Year. It was the first Special Session to be held in Annapolis in twelve years. The Special Session was convened on December 27, 2004. The entire day was used to hear testimony in the House of Delegates and the Senate. Testimony by the President of the Maryland Chapter of the ACS was given to both bodies. It was pointed out that the impending loss of surgeons resulting from increased malpractice premiums would put all Marylanders at risk should they require emergency care, had a tumor, acute appendicitis, etc. The crisis in access to care was not limited to the 67,000 women who delivered babies a year in Maryland, but to over a half a million citizens who underwent operations each year throughout the state. The impact the liability crisis was having on staffing the emergency rooms and wait times to find a surgeon was also emphasized. Instead of the anticipated single bill to be discussed and voted upon, lawmakers found themselves confronted by two additional bills. Not only the Governor’s so-called compromise bill but also a separate bill from each of the legislative branches. After over twenty hours of testimony in both chambers, the single bill that emerged from the Joint Conference Committee 24 hours later contained very few of the Tort Reform measures advocated by the Governor. The final bill was called a “gift to the Trial Lawyers” by editorials in the national press. It was referred to “Tort Reform Lite” during debates on the Senate floor. The only substantive measures it contained related to the insurance industry. Measures to tighten up requirements for expert witnesses along the lines proposed by the American College of Surgeons were included in the bill as was a measure for an enhanced certificate of merit. “Good Samaritan” provisions did not survive. To stabilize malpractice premiums, a fund of $40 million dollars was to be created by eliminating the exemption of a 2% premium tax the HMOs enjoyed in Maryland for over twenty years. The need for the fund and its adequacy was questioned. THE FATE OF THE BILL The bill, called the Maryland Patients’ Access to Quality Health Care Act of 2004 (HB2), passed both houses of the General Assembly at 3:00am Thursday morning, December 30, 2004. This was despite the governor’s pledge to veto it because of the “new HMO tax” that would be passed on to working families. Perhaps more importantly, the bill was an overwhelming disappointment to everyone but the Trial Lawyers. Essentially all important tort reform measures had been watered down or eliminated. The historic special session adjourned and the bill went onto the Governor’s desk where it languished until January 10, 2005. That day, at a well-publicized press conference, the Governor carried out his threatened veto. The following day, as the first order of business of the new General Assembly session, his veto was overridden- essentially along party lines. The Maryland Patients’ Access to Quality Health Care Act of 2004 became law. Only one group was happy. LESSONS LEARNED Though the impact the legislation will have on Maryland’s medical liability crisis is not yet certain, some important lessons are obvious. Without a doubt the courageous actions of two groups of surgeons in western Maryland were pivotal in transforming a politically dead issue at the end of the 2004 legislative session into one of national attention. By setting dates for stopping their practice and in the case of the Hagerstown group actually doing it, it was apparent not only to patients and lawmakers, but also to the entire state, the media and the country, that there was a serious problem with liability abuse in Maryland and tort reform was urgently needed. Because these communities are geographically isolated their actions did more than just inconvenience a few patients, it brought pressure to bear at the state level to avert a real healthcare crisis for tens of thousands of patients. This tactic would not have been effective in Baltimore or other large metropolitan areas because patients could have obtained care from different doctors or hospitals just a few miles, or even a few blocks away. It was also apparent that when the debate was revived an important opportunity to reframe the impact of the crisis emerged. Skyrocketing malpractice premiums affect not just physicians and not just obstetrical care. By stressing the fact that everyone’s healthcare was at risk because of it, not just expectant women, lawmakers could not minimize the problem. Additionally, not just doctors, but hospitals, clinics and nursing homes throughout the state have to spend more on their liability premiums and defensive care, instead of using their scarce dollars on staffing, equipment and maintenance. By uniting with other stakeholders in the renewed battle for tort reform, e.g. hospital associations, medical societies, business organizations, etc. doctors were able to get their message more widely disseminated and effectively communicated. The argument for tort reform gained a larger audience and commanded more media attention. Though, what actually ended up in print or on the television was never truly under our control, these tools must be used often and as effectively as possible if the message is ever to reach lawmakers and their constituents- our patients. Finally, it must be accepted that the political process is an arduous and frustrating one for physicians. We are trained to believe that when a problem is identified, it is analyzed, and all possible solutions considered. When the solution is chosen the time for implementation has come. Our only thought is to correct the problem as quickly and safely as possible. Confrontation and manipulation of colleagues or public opinion is not part of our daily modus operandi. When it comes to bringing about change in the political environment, we must keep our eye on our objective, return again to the fray as often as necessary, work hard and persevere despite the obstacles. EPILOGUE Despite the glaring inadequacies of HB2, the Maryland Chapter of the American College of Surgeons, the state medical society and the Maryland Hospital Association supported it’s signing. From the pragmatic point of view only, it’s adoption allowed many physicians in Maryland to continue to practice for another year or two assuming the rate stabilization fund was effective. Unfortunately, within days of HB2 becoming law it was apparent that additional supporting legislation would have to enacted to entice private malpractice companies into accepting the concept of rate stabilization. Those negotiations are ongoing and it appears they will be successful. As for the absent Tort Reform measures, many have been reintroduced as separate bills for the 2005 General Session. Without meaningful tort reform there is no doubt that Maryland’s crisis will reemerge. There is concern that the lawmaker’s interest in this subject has been exhausted and that nothing significant will result from the current session. All participants in last year’s actions are being urged to redouble their efforts. Again, all surgeons and physicians, in concert with patients, hospitals and other committed groups, must be at the forefront of the Tort Reform Battle. Our profession and patients require this effort. Scott E. Maizel, MD, FACS Published on the American College of Surgeons Bulletin of April 2005 President, Maryland Chapter American College of Surgeons Jan 3, 2005 Office Tel (410) 574-5720 Fax (410) 574-5786