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December 31, 2004

General Assembly Journal- 2004 Special Session

Richard B. Weldon Jr.

It seems like we've been talking about malpractice reform for years. I spent the better part of the summer of 2002 speaking to individuals and groups about the rising cost of medical care and health care delivery. One unavoidable circumstance of providing high quality health care is keeping as many doctors in practice as possible, using the regulatory power of government to facilitate their work.

Unfortunately, the cost of malpractice insurance for doctors has risen so dramatically that many specialty care physicians would rather end their practice than pay half of their profits to pay for malpractice coverage.

Frederick and Washington counties are at the forefront of the battle. We've seen the headlines about Dr. Gerald Schipper, Dr. Greg Rausch, and the Foris Surgical Group. In every case, we'd be losing the best and highest quality doctors due to the cost of their malpractice insurance.

So with the background of doctors threatening to end their practice, and the trial lawyers arguing that bad doctors hurt people, Gov. Robert Ehrlich decided to convene the Maryland General Assembly in "extraordinary" session.” The state’s Constitution says nothing about the popular appellation "special," that word came from the political reporters.

When I ran for the House of Delegates, I understood the process of a citizen legislature, one that meets for only 90 days. I've written before about the benefit of holding the House and Senate to a 90-day session, fearing the damage that might result from a longer meeting.

I received my official Governor's proclamation a day after I'd read the Associated Press story in our local paper. Along with Governor Ehrlich's proclamation, I received a letter from Speaker Michael Busch announcing the Governor's decision. Even better, three days later came a letter from the Chief Clerk, announcing the Governor's decision and the Speaker's call for the convening time (10 A.M. Tuesday, December 28). Needless to say, the message got across.

Here's some fun back story for you. Two months ago, Senate President Mike Miller shifted a possible vote for tort reform off of the Senate Judicial Proceedings Committee. He sent Sen. James Brochin (D., Baltimore County) packing, and replaced him with Sen. Norman Stone, a trial lawyer. Guess how he'll vote!

Last Friday, Speaker Busch added his own unique spin to this drama. He plucked Minority Whip Tony O'Donnell (R. Southern Maryland) from his seat on the House Judiciary Committee, one that O'Donnell had held for the 10 years he's been in the legislature. Mr. Busch replaced him with Del. Michael Smigiel, a freshman from the Upper Eastern Shore. You'll never guess how Delegate Smigiel makes a living; he's a trial lawyer who takes malpractice cases!

Busch made some other changes as well. None have had as dramatic an impact on the Special Session as the Senator Brochin and Delegate O'Donnell moves, though.

I'm getting a kick out of reading the news coverage of this extraordinary session. One of my Frederick County colleagues is mad at the Governor because he has had to cancel a hunting trip. He says the Governor could have solved this issue before now, a tired line lifted right out of the Democratic Party playbook.

There's one big problem with my colleague's comment. Facts simply don't support his assertion. Governor Ehrlich DID propose a bill to solve this problem last year. Unfortunately, the majority party failed to pursue the solution, mostly because they couldn't afford the political consequences of an Ehrlich success.

The bill died a quiet death, and the voice of my Frederick County colleague was strangely silent in arguing with his majority colleagues to help our doctors solve this problem. So you'll excuse me if I'm skeptical of those who claim to care about doctors but fail to take timely and appropriate action.

Monday, December 27, 2005

I drove down to Annapolis this morning, my head swimming with the possibilities and permutations in trying to solve the malpractice crisis. I had received a call on December 23 from the staff of the Health and Government Operations Committee, telling me to be in the committee room for a 2 P.M. hearing. The Republican and Democrat caucus meetings were scheduled for late morning.

At least one committee hearing previously scheduled for early Monday had been cancelled with no explanation. After the Democrat leadership met, all of the individual committee meetings that had been scheduled were cancelled. The new strategy was to combine selected members from several committees and join them with the House Judiciary Committee in a special work group at 5 P.M.

Trying to get a sense of what was going to happen was harder on Monday than I've ever seen it. To illustrate, the executive director of the Department of Legislative Services, Karl Aro, was leaving Sunday at around 6 P.M. I ran into him in the tunnel, and asked him what he thought was going on.

He shook his head and told me he was leaving to visit his brother. He said he and his people had no idea what was happening. Not a good sign!

I attended the special work group meeting. As I walked into the room, Governor Ehrlich was speaking. The first words I heard were: "If you don't like my bill, vote it down. Then you can pass a bill with the HMO tax, I'll veto it, and you can try to override me".

Ouch! Talk about throwing down the gauntlet, I could look around the room and read the faces of the majority party members present. It appeared not only possible, but likely, that they would do exactly as the Governor suggested.

He was peppered with questions, mostly about his failure to identify a funding source. He stuck firmly to the idea that the Delaware tax loophole closure bills enacted last year will produce sufficient revenue to fund a short-term, temporary fix.

Many fear the HMO tax, once enacted into law, will never be eliminated. Also, the insurers have all but guaranteed that the full increase will be passed along directly to consumers.

The Governor firmly believes that the HMO premium tax is a tax on the working poor. My own HMO insurance (through the State) will cost me another $200 per year with the premium tax increase. Maybe not a big deal to me, but possibly a big deal to a family struggling to make ends meet.

The Governor's bill had been available since December 23, and could be downloaded directly from the Governor's website. At 8 P.M. Sunday night, Speaker Busch unveiled his own bill. This is a bill that no one outside of the Speaker's office had ever seen before.

Lobbyists and advocates were scrambling like mad to get a copy, and my copy must have just come off the copier, as it was still warm. This bill, entitled Maryland's Patients' Access to Quality Health Care Act of 2004, is 75 pages of legislative language that only the most dedicated insider could get through in one reading.

I sat through a couple of hours of testimony, threw a copy of the Speaker's new bill in my bag, and headed up the road to railroad town.

Tuesday, December 28, 2004 (10 A.M.)

I was back in the Capitol City for the Special Session, along with a bunch of white-coated doctors, lobbyists, and media folks. The drive down featured talk radio speculating as to what would happen.

The big question today is how will the Speaker go about getting his version passed. We convened in the chamber at 10, but didn't actually start the session until 10:35. The Speaker had taken 19 GOP members into his office off the floor to explain that he was moving Minority Whip, Anthony O'Donnell (Southern MD).

As the Whip, Delegate O'Donnell traditionally sits in the first row, right next to the minority leader. In these seats, they are right next to their majority counterparts, and can strategize and communicate freely about the dynamics of the Chamber and debate.

Back in July, Delegate O'Donnell had committed a cardinal sin in the legislature. He suggested that if any Democrat chose to challenge Speaker Busch for his seat, Tony could promise the 43 GOP member's votes for that person.

Unfortunately for Delegate O'Donnell, no Democrat stepped forward. Now to be honest, Tony didn't think anyone would. The point was to send a none-too-subtle signal to conservative and minority Democrats that the GOP caucus was open to discussions about strategic partnerships.

As it turned out, Speaker Busch was very upset with the move. So upset that he decided to shift Delegate O'Donnell from his committee assignment on Judiciary to a seat on Appropriations. But the pain didn't end there.

The Speaker also moved Tony from his front row seat to a middle of the aisle seat in the center of the Chamber. The Speaker explained to the Republicans in his office today that his own caucus (the Democrats) was seeking more and broader punishments.

The Democrats wanted the Speaker to kill all GOP bills in committee, to deny all GOP requests for travel, and to not appoint any GOP member to a conference committee. So much for a spirit of collegiality and a two-party system!

Once we got down to real legislative business, the session was over fairly quickly. All of the bills that Governor Ehrlich vetoed last spring that the Democrats want to override were special ordered to the end of the day.

Ultimately, the strategy might be to order them until we reconvene in mid-January. The majority will need to know that they have a supermajority, as that is what it takes to override a veto.

The Speaker ordered his bill and the Governor's bill to be sent to the House Rules Committee, with a report due back to the full House at 3 P.M. today.

Tuesday, December 28, 2004 Round Two (6 P.M.)

Well, we're back! Unfortunately, the original convening time of 3 P.M. magically turned into 6 P.M., and we didn't really get into the meat of the second reader discussion until closer to 8 P.M.

Tonight's hearing lasted until after 10 P.M., and since it was a second reader, the night was all about amendments. There were 11 amendments, a few by the Rules Committee, and five submitted by Republicans. All of the Rules Committee amendments passed, but only one of the GOP amendments passed. The votes followed party lines. One very effective amendment was offered by Del. Addie Eckardt (R., Cambridge). Addie submitted an amendment that took the Governor's bill, which was killed by the majority Democrats on the House Rules Committee, and replaced the Speaker's language.

The importance of that motion was to force a floor vote on the Governor's bill, which otherwise would have died in the Rules Committee. Also, Republican members were able to explain that Governor Ehrlich had a plan to fund a solution without a tax on the working poor.

The majority party complains that a funding source MUST be identified for something as critical as the malpractice crisis. Unfortunately, they didn't follow their own advice three years ago. They approved the Thornton mandates, a $3.4 billion dollar obligation, and identified an $80 million dollar funding source.

So again, I've become very skeptical to those claims when the hypocrisy is so apparent. The Ehrlich plan was written after a three-party discussion, with Governor Ehrlich, Speaker Busch, and President Miller. All three men met in extended discussions, and all three struck an agreement.

The agreement centered on a series of tort reforms, patient safety initiatives, and some health insurance industry controls. With that agreement failing, the central issue remains whether or not the conference committee between the House and Senate craft a compromise that retains meaningful tort reform.

The worst possible scenario would be a final bill that loses critical tort reform initiatives while retaining the HMO tax. Then, we've created a tax on the working poor and failed to correct the fundamental problems faced by Frederick and Washington county doctors.

I spent a lot of time traveling the region and talking to doctors about this crisis. None of them, and I mean none of them, ever said that the problem was the malpractice insurers. None of them told me that we should raise an HMO premium tax on the working poor. What every doctor told me was that we needed aggressive tort reform, and that trial lawyers were driving up the cost of malpractice premiums.

Wednesday December 29, 2004 (10 A.M.)

The one-day Special Session has now turned into a two-day affair. We're back in the Chamber to take up House Bill 2 on third reading for final passage.

There are some very skeptical and suspicious members, so we had several hours of debate. A lot of questions were asked. Democrats would say Republicans were stalling. And the GOP would counter that they were exposing some major flaws in the bill.

So we argued about the Speaker's bill (House Bill 2) until 1:30 P.M. and ended up passing the bill pretty much along party lines.

Like everything else this week, there were a few tense and odd moments. Members are allowed to stand and explain their vote, so today it seemed like everyone wanted to take advantage of that.

These two-minute explanations are presumably to try and influence others to switch their votes, but I've never seen that work. Instead, they become mini-televised commercials (if the cameras are on) where members speak to their base.

Today, the Governor realized that the House leadership was going to have trouble getting to 85 votes (remember, the all-important veto proof majority), so he used the time that members were explaining their votes to call members on the floor that he thought he could influence.

Suddenly, the Speaker's staff recognized what was happening. They saw vulnerable members picking up the phone at their seats, and it dawned on them that these calls might be coming from the Governor.

Speaker Busch's Chief of Staff, Tom Lewis, rushed up on the dais and whispered something to the Speaker.

Suddenly, Speaker Busch's stopwatch starting counting seconds much faster than real time. Del. Chris Shank (R., Boonsboro) had the floor, and had only spoken for about a minute before Mr. Busch told him his time had expired.

After one more delegate had her time on the mike (again less than 2 minutes), the Speaker directed the Clerk to "take the call." This action triggers the computer to download the vote tally and register it for perpetuity.

When Speaker Busch made the call, there were still several members standing at their seats, microphone in hand. Also, there were a number of delegates wandering around between their seats and the lounge.

Due to the speed in which discussion was cut off, 12 members of the House were prevented from having their vote recorded. I'm not sure how they'll explain to their constituents back home that they were at the coffee pot when one of the most important votes was taken.

The bill passed by a vote of 76-46, well short of the 85 votes necessary to override the expected veto. But they'll make that up between the 12 missing votes and the seven excused absences.

We're now adjourning until 4:30 P.M., with both political parties gathering at 4 P.M. for strategy sessions.

Wednesday December 29, 2004 (4:30 P.M.)

We're back in the saddle again: 4:30 turned into well after 6 P.M., but legislative time works much differently than your Timex.

The Senate passed a bill on third reading, and now we're going to vote against that bill, appoint a conference committee, and turn the conferees loose on the bill.

Wednesday, December 29, 2004 (9:30 P.M.)

The Speaker has just called for the doorkeepers to close the doors and the members to take their seats. As soon as the buzz calmed, he announced that he had good news and bad news.

Good news: We'll finish our work tonight. Bad news: We're recessing again until 11:30 P.M. It will take that long to print and distribute the bill copies.

Wednesday, December 29, 2004 (11:45 P.M.)

I suspected something was up as soon as I walked into the Chamber. The Speaker's staff was scurrying around, and there were no stacks of bill drafts on the table at the front of the Chamber.

Sure enough, as soon as he gaveled us in session, he announced that we had at least another hour to an hour and a half to wait.

Thursday, December 30, 2004 (1:20 A.M.)

Still waiting...................

Thursday, December 30, 2004 (2:34 A.M.)

The conference report has finally arrived. The bill is exactly what had been rumored since around 9 P.M., which was a bill with the HMO tax and many of the reforms in the original House bill minus a few critical provisions.

These few provisions figure prominently in the debate that remains this morning. Democrats want to focus on the tort reforms that remain, while the Republicans will counter that the bill components removed by the conference committee are the most important aspects necessary to resolve the lawsuit crisis.

Independent actuarial agencies "score" bills like this, and that scoring will take place next week. Expect Governor Ehrlich to hold a press event to unveil how low the score is for the bill that came out of the conference committee.

Trying to retain some modicum of independence, I would have to credit the House conferees with holding the line on some major lawsuit abuse provisions. It is without a doubt a better bill than having no bill, although the Senate killed a few provisions that Frederick and Washington County doctors said were critical to be enacted.

Instead of focusing solely on curbing unnecessary lawsuits, the focus of the conference committee is more on placing controls on the insurance industry.

One of the more troubling changes in conference was the elimination of a House amendment to provide Good Samaritan protections (a critical component according to the Save Our Doctors organization).

Another important provision deleted through conference was the requirement that a civil action should have at least six jurors. The conference deleted the provision.

A third element considered important was weakened when the Senate insisted that Apology provisions be weakened.

Finally, and most significantly, the HMO premium tax was left intact.

The final tally was 85 Yea, 44 Nay.

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