I have spent eight years on the House Judiciary Committee, and have seen a number of bills in the area of medical malpractice. In the past General Assembly, Maryland took a step forward in easing the burden that many of our physicians were feeling. I believe that much more needs to be done.
Like many of my colleagues, I have spent a number of years meeting with stakeholder groups of physicians, boards of area hospitals, attorneys, representatives of the insurance industry, and citizen groups. I continue to believe that it is, in fact, possible to have real tort reform without effecting the rightful recovery of aggrieved individuals. Unfortunately, our legal system in the area of medical malpractice is often costly and arbitrary.
Tort reform is a term used to describe many different ideas. There is no single reform measure that will ease the tremendous burden felt by our healthcare professionals. In addition, it is clear that there is need for insurance reform as well. Only with a combination of several initiatives can real reform take shape in Maryland. The following represents what I believe to be the most effective malpractice reform measures:
1) Reform of the Certificate of Merit Process
The Certificate of Merit was meant to serve as a screen for meritless claims. It has not lived up to its promise. In a recent decision of the Maryland Court of Special Appeals, a case was thrown out for lack of specificity in the certificate of merit. In that case 31 Defendants were sued by one Plaintiff. Many of the Defendants had nothing to do with the case. And yet, our screening process was unable to stop the suit from moving forward. The Court derided a system of 'sue first, ask questions later.'
In the last Session of the Maryland General Assembly, the Certificate was strengthened and a second Certificate was mandated. However, there continues to be a lack of a meaningful screening process where meritless cases and individual Defendants can be eliminated before incurring huge expense. In addition, I believe that Certifying Experts must be held accountable for the signing of meritless claims. One idea is to define testimony in a case as part of the definition of practicing medicine, thus making meritless testimony subject to action by the Medical Licensing Boards.
2) Offer of Judgment Rule
An Offer of Judgment encourages early settlement of cases, and penalizes Plaintiffs who shrug off a bona fide settlement offer and elect instead to try and hit a jackpot in court. If the Defense makes an offer that is rejected, and a verdict is later handed that is equal to or less than the original offer, legal fees of the Defense are to be paid by the Plaintiff. Again, the Rule encourages early and realistic settlements of cases.
3) Benevolent Gestures
If a mistake occurs (through negligence or by bad outcome), the trained reaction of a physician currently is to cut off communication for fear of litigation. Apologetic statements made to a patient or the patient's family will be used against a Physician in court. In the last General Assembly, the Legislature adopted a version of the 'Apology Allowance Statute.' However, the version adopted left significant loopholes rendering the provision ineffective. Results from other states have shown a dramatic drop in filed cases where physicians simply are able to have an open and honest dialogue with their patients.
4) Mandatory Structured Judgments
Structured judgments provide assurance and regularity in the insurance markets. A structured judgment substitutes the lump sum payment of an award with an annuity that stretches out a payment schedule to more accurately reflect a Plaintiff's needs.
5) Good Samaritan Immunity for Physicians Under EMTALA
Emergency medical physicians and those who take call behind the E.R. are required by federal law to take any patient, regardless of financial considerations, availability of insurance, and even legal status. Many will never pay for services rendered, but some number of those same patients will file suit in our courts. It is becoming increasingly difficult to find specialists willing to take call in the E.R. I believe that we should extend the Good Samaritan Law to shield physicians in the Emergency Room except when there has been gross negligence.
6) Health Courts
The concept of a new health court system is being floated by Common Good and other organizations around the country. In general, the health court concept seeks to avoid issues of forum shopping and untrained juries by placing malpractice litigation before boards of healthcare professionals. By doing so, our system can more accurately decipher real malpractice from bad outcomes.
In 2007, as the number of uninsured Marylanders grows and the cost of healthcare continues to rise, a number of legislative initiatives have been floated to deal with the growing crisis. The House passed sweeping legislation to provide a floor of universal healthcare paid for by a $1.00 cigarette tax. The Senate decided to stall that initiative pending more complete action on the State’s massive budget deficit.
Major health initiatives successfully passed the Legislature. A ban on smoking in bars and restaurants will take effect February 1, 2008 to protect the public from the dangers of secondhand smoke. In addition, Governor O’Malley has increased funding for stem cell research in his budget. Other major health bills include a start on the important issue of physician reimbursements, an extension of healthcare for children as dependents of their parents, an annual sunset review of the Maryland Board of Physicians, “clean cars” legislation designed to alleviate environmental effects on individuals with asthma, and increased sanctions for fraudulent pharmaceutical sales.
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