Joseph (Jay) A. Schwartz, III: Senate Bill 30 ‒ The Pundits and Perhaps the Most Extraordinary Vote In General Assembly History

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The just concluded General Assembly Session was one that none of the pundits saw coming. So they said: It is an election year; there will be a lot of bills filed but nothing of substance will be enacted; partisan wrangling will be the order of the day; blah, blah, blah.

But here’s what happened. It was a remarkably bipartisan 90 days where the Governor and President Miller and Speaker Busch found a way (1) to shore up the Maryland Health Insurance Exchange in spite of efforts to undo Obamacare in Washington, (2) secured an agreement with Virginia and the District of Columbia for dedicated Metro funding which had been argued about for years, (3) agreed on an historic package of tax incentives for the potential Amazon headquarters in Montgomery County, (4) compromised on an omnibus crime package designed to assist law enforcement in Baltimore, (5) changed the school funding/tax formula to help Baltimore (6) resolved all controversies surrounding the medical marijuana rollout and (7) agreed on a school safety bill after the school shooting in Southern Maryland.

Winner/Loser: According to The Baltimore Sun, Governor Hogan was the primary winner and the primary loser was Comptroller Franchot. Franchot is so angry that he has pledged to go door to door in President Miller’s district in order to defeat him and will also work to defeat Speaker Busch. Perhaps Comptroller Franchot is as popular and effective as he believes and will turn the tide against the Presiding Officers. I suspect Vegas will not like his odds.

There were over 3,000 bills filed in the 2018 session. Newspapers like The Baltimore Sun and The Washington Post covered perhaps 20 to 25 of these bills. The other 3,000 were largely just known to the proponents and opponents of the bills.

However, perhaps the most interesting story about the other 3,000 bills has to do with Senate Bill 30 which featured a fight between the plaintiffs’ malpractice lawyers and the doctors and hospitals they sue. This is a “tribal fight” and, while rarely reported in the general press, is more typical of the “fights” that occur over most of the bills filed the General Assembly.

From 1975 to 2015, I was an active lobbyist in the General Assembly. For the last three years I have watched the activity over the Internet generally from my winter quarters in South Carolina.

Senate Bill 30 had one of the most remarkable odysseys that I have seen in the 41 years that I was actively involved and the last 3 years when I have been an interested observer. Its fate was not decided until approximately 10 minutes prior to the witching hour of midnight on “sine die,” the last day of the 90 day session.

The vote on the House floor was remarkable. The Conference Committee Report was voted down by a 41-89 vote, probably the most decisive rejection of a Conference Committee Report in General Assembly history.

99% plus of Conference Committee Reports, even controversial ones, are passed. A Conference Committee Report is a “compromise” forged by a committee of 3 Senators and 3 Delegates to resolve differences between the Senate and House bills on the same subject.

Senate Bill 30 sought to repeal a 1986 law which disallowed professional expert witnesses in medical malpractice cases by stating the witness may not spend more than 20% of his or her time as an expert witness. The notion was that the malpractice crisis in the mid-1980s was partially caused by these expert witnesses for hire who didn’t treat actual patients.

There is a cottage industry of companies which will secure the services of a medical “expert” for any type of malpractice case. Google the term “professional medical experts” and you will be introduced to these companies. In many cases, these “medical experts” do not see patients and yet are keen to testify against doctors who do.

Why was I watching Senate Bill 30? Because between 1993 and 2015 I was the principal lobbyist for the doctors and would routinely fight proposals like Senate Bill 30. And even though I was no longer involved, my former firm and my former partners continue to represent MedChi, the Maryland State Medical Society (MedChi).

Senate Bill 30 was inspired by the Maryland Association for Justice (once more aptly named the Maryland Trial Lawyers Association) and opposed by MedChi and Maryland hospitals. Until 10 minutes of midnight it appeared that the trial lawyers had the whip hand. Their proposal to repeal the 20% rule had cleared the Senate and needed only a confirming vote in the House of Delegates and the 3 House conferees were agreeing to the same thing that the Senate had just passed.

Trial lawyers had descended in force on Sine Die Monday and were camped out in legislative offices and in the State House buttonholing every Senator and Delegate. A furious lobbying effort led by Gene Ransom, the CEO of MedChi, and Steve Wise, MedChi’s outside lobbyist, resulted in the lopsided 41 to 89 victory.

Faced with the trial lawyer presence, Ransom and Wise organized a counteroffensive and coordinated an impressive array of lobbyists including Bruce Bereano and Pegeen Townsend representing MedStar, Donna Jacobs representing the University of Maryland, Neal Karkhanis and Delora Sanchez on behalf of the Maryland Hospital Association, Martha Nathanson on behalf of LifeBridge, Tom Lewis on behalf of Hopkins, Barbara Brocato for the Anesthesiologists and Teresa Healey-Conway on behalf of the Anne Arundel, Prince George’s and Howard County Medical Societies. But the coup de grâce came when Ransom unleashed the 8,000 member doctors of MedChi on Saturday night who then inundated the General Assembly members with thousands of emails, texts and phone calls.

Anyone who has tried to predict the outcome of the vote in the House of Delegates (141 members) on the final day of the legislative session when deals and counter deals are being made by the minute knows that their counting may be far off. Right before the vote, it was delayed for 10 minutes and, apparently, the proponents of the bill thought they had the votes. As it turned out, they were 30 votes short. Ransom and Wise were hoping for 70 votes; they got 89.

How does this happen? It happens when the House Speaker lets it be known that everyone is free to vote their own conscience rather than the normal message that a Conference Committee Report is sacrosanct.

I am partial to Ransom and Wise, my former client and my former partner; but not so partial that I would praise them unless they deserved it. And deserve it they do: this was perhaps the most decisive drubbing of a Conference Committee Report in General Assembly history.

It had the added benefit of preserving a Maryland law which has kept unmeritorious medical malpractice suits from being filed. That law has kept smooth talking and professional medical “experts” out of Maryland courtrooms.

So the “tribal fight” between lawyers and doctors ended in a surprising doctor victory, proving, as Yogi Berra once said, “it ain’t over until it’s over.”

Once again, the pundits got it wrong.

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