Medical Malpractice

Prominent Malpractice Researcher: Maryland effort light on real reform

Germantown, MD (PRWEB) January 2, 2005 -- The medical malpractice reform proposal adopted by both houses of the Maryland legislature early this morning contains some useful provisions but fails to embrace more effective reforms, and its centerpiece, a state-subsidized re-insurance fund, is extremely ill-advised," according to a nationally respected medical malpractice law scholar.

Michael I. Krauss, a law professor at George Mason University, is author of the new Maryland Public Policy Institute study Medical Malpractice: Is it Time for Tort Reform in Maryland?" Late Thursday morning, he reacted to press accounts of the legislation approved by Maryland lawmakers.

The proposed re-insurance fund and accompanying price-increase caps on doctors malpractice insurance premiums drew strong criticism from Krauss. The fund is not real reform, it just shifts some of the cost of malpractice onto taxpayers—who surely have done no wrong," he said, echoing a point he made in a Baltimore Sun op-ed that appeared Monday. As for the caps, he said, Price controls usually dont make costs go away; they just take on different—and often more perverse—forms."

The legislatures decision to finance the fund by extending a state insurance surcharge to HMOs illustrates one of those perverse costs, Krauss said. This will raise HMO costs, which will at the margins push people out of HMOs. That will delight tort attorneys, because HMOs often have binding arbitration clauses that work against higher tort costs and lavish contingent fees. There may be a tax equity argument for extending the surcharge to HMOs, but lawmakers appear driven mainly to grab money to create this fund."

He also criticized the legislations proposal to establish a peoples counsel" to represent consumers at future malpractice rate insurance hearings. This is one of those ideas that sounds good but will likely be costly and accomplish little on behalf of consumers. And it encourages citizens to believe that the med-mal crisis is caused by insurance companies, which is simply not the case."

Krauss characterized as good reforms" several provisions contained in the legislation, like tighter limits on the qualifications of expert witnesses, more required details on plaintiffs certificate of merit" applications, mandated pre-trial mediation, and various provisions to make it easier for incompetent doctors to have their malpractice insurance canceled and their licenses revoked. But, he added, These changes will likely have only a minor effect. They dont squarely address the causes of the malpractice crisis."

He said that lawmakers would have better served Maryland residents by considering more ambitious reforms such as modifying the collateral source rule and permitting health care providers and their customers the freedom to establish their own tribunals to resolve possible future malpractice complaints. He discusses those and other reforms in his Maryland Public Policy Institute paper.

Krauss expressed disappointment that a provision to extend extra liability protection to emergency room doctors and another provision to adjust future earnings" awards to reflect taxes that would have been paid on those earnings, both of which were contained in an earlier House of Delegates medical malpractice bill, had been left out of the final legislation. Those provisions would have been welcome," he said.

He credited the legislation with making some significant, positive reforms, including the provision to stop annual increases in the state cap on pain and suffering" damage awards and the provision to lower the cap on wrongful death awards to $812,500. These are good reforms that would be more in line with other states, although the wrongful death limit is still on the high side."

Krauss is available for expert commentary on the subject of medical malpractice and may be contacted at mkrauss@gmu.edu. His full-length report Medical Malpractice: Is it Time for Tort Reform in Maryland?" is available on the Maryland Public Policy Institute Web site at www.mdpolicy.org.

The Web site also provides links to papers on medical malpractice by regional economist Anirban Basu and nationally renowned medical malpractice scholar David Hyman of the University of Illinois Law School. Krauss, Basu and Hyman participated in a Maryland Public Policy Institute forum on medical malpractice that was held Dec. 20 in Annapolis.

The Maryland Public Policy Institute is a nonpartisan public policy research and education organization that focuses on Maryland public policy issues. The Institute is recognized as a 501 (C) (3) research and education organization under the Internal Revenue Code.

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