Medical reform locked in fight

Lawmakers who want to reform the way doctors are disciplined in Maryland are locked in a bitter battle with the powerful medical lobby.

They say few Maryland doctors are disciplined because the standard of proof is too high and the board that conducts reviews is dominated by physicians who might be reluctant to act against their colleagues.

The Maryland State Medical Society, known as MedChi, calls criticism of the review board, which licenses and regulates doctors, "overblown" and objects to many of the changes being proposed.

Sen. Paula C. Hollinger, a nurse and an influential Senate committee chairwoman, is leading the fight against the doctors' lobby. She proposes lowering the burden of proof and opening the door for more disciplinary actions against doctors.

Without a compromise and a successful bill, Maryland's physician review board will expire June 30, leaving the state without a system to regulate doctors' actions.

"I'm adamant," said Hollinger, a Baltimore County Democrat. "This isn't plumbers and electricians and lawyers. This is health care professionals that, unfortunately, can kill someone."

The sticking point is a phrase that stood in the way of a similar bill a year ago. Hollinger's reform bill would change the standard of evidence in a discipline case from "clear and convincing evidence" to a "preponderance of evidence," a less-strict requirement that could lead to more frequent sanctions against doctors.

Hollinger said most other professions are judged by the latter standard. According to the Federation of State Medical Boards, two-thirds of the nation's medical boards use it. But T. Michael Preston, executive director of MedChi, said lawyers are judged by the higher standard, so doctors should be, too.

Doctors say the latter standard is too loose and is typically used in civil cases. In lay terms, they say, "preponderance of evidence" means a jury is at least 51 percent certain of guilt, compared to "clear and convincing" evidence, which requires 70 percent certainty.

Sen. Andrew P. Harris, an anesthesiologist and a member of Hollinger's Education, Health and Environment Committee, thinks the current standard ought to be retained.

"The license is a physician's livelihood," the Baltimore County Republican said. "This is trial lawyer-driven. They want to lower the standard so there can be more actions against doctors, even if they're not justified."

The bill would change more than the standard of evidence. It contains dozens of other reform provisions, including adding more nondoctor members to the Board of Physician Quality Assurance and changing the way the board is chosen to limit MedChi's control over the process.

It also would change the way doctors are reviewed by their peers. Currently, two doctors review a case, and if they disagree on their finding, the case gets no further action. Under one proposal, a third doctor would be brought in. Those peer reviews, currently done by MedChi, could be contracted out to a nonprofit group under the bill.

"We've gotten most of the issues ironed out," said C. Irving Pinder, the board's executive director. An exception, he said, is the standard of proof, on which "there doesn't seem to be any movement."

Maryland's doctors used to rank in the middle of states when it came to disciplining doctors. That was before the "clear and convincing" language appeared in the 1990s. Now, Maryland ranks toward the bottom. MedChi disputes the math used in divining those rankings.

Last year, a similar bill passed in the House of Delegates -- but only after the "clear and convincing" language was restored in an amendment on the floor after heavy lobbying from MedChi. Hollinger let the bill die in the Senate.

This year, the Senate bill will go first -- as soon as her committee has it in proper shape. Negotiations on the wording have been lengthy -- a subcommittee working with MedChi and others met on a recent night until well after 10.

"The notion that after all this work has been done that a disagreement over one provision might allow the board to go out of existence is inconceivable, is irresponsible," MedChi's Preston said. "It's troubling that a public official would in effect threaten to put an entire regulatory body out of business over such a narrow issue over which there's a legitimate basis for disagreement."

"It's their choice," Hollinger said. "We will negotiate every other part of the bill. They have to back off."

Over the past four years, MedChi donated more than $130,000 to legislative campaigns and campaigns for other offices, state elections records show.

"I think they have a very powerful lobby," said Del. John Adams Hurson, chairman of the House Health and Government Operations Committee, where the bill has also been heard. "They are one of the largest contributors in campaigns. To say that doesn't matter is to be blind to reality. Money provides access and it does influence the outcome. But people of good intentions and hard work can still get the right thing done."

He, too, wants to see the clear and convincing language changed. But the changes that are needed are much deeper, he said.

"The issue is really the culture of the board -- the board has a culture of a good-old-boy love-in society -- they're not a real regulatory force," said the Montgomery County Democrat. "I think that's the problem. I think changing the standard can help but the real change is you need a new culture."

MedChi isn't the only one objecting to the bill. Thomas E. Dewberry, the chief administrative law judge in Maryland, said he worries about a provision that would change the way some Board of Physician Quality Assurance hearings are conducted.

Now, an administrative law judge hears about 25 cases a year, those that the entire board is unable to hear. The bill as written would allow a panel of three members of the board, most likely doctors, to rule on cases. Proponents of that say time is wasted when judges need to be brought up to speed on medical issues.

"We are a totally neutral party," Dewberry said. "They would bypass us completely. This is the fox watching the henhouse."

The Department of Health and Mental Hygiene, meanwhile, is working with the office of the attorney general to determine how to continue oversight of doctors if the board shuts down June 30, said spokeswoman Karen Black.

At the same time, there is a separate House bill on the table to extend the board's "sunset" date for two more years to allow more time to hash things out. It is unclear where, if anywhere, that is going.