out and were provided assistance by Gov- ernor Glendening and his staff. On the last day of the session, Matt Paavola and I along with the three lobbyists were present the entire day. The day for everyone started at 8:00 a.m. and did not finish until 12:30 a.m. But, to make a long story short, the bill never came up for a vote on the House floor.
Like last year, a good
family exclusion bill passed the Senate but was killed and Chairman Michael Busch’s Economic Matters Committee. The prospects for passage in the fu-
ture of a family exclusion bill to provide the freedom of contract that the Court of Appeals envisioned would appear prob- lematic. The Legislature, with its many chokepoints, is very subject to political pressure that yields results quite divorced for considerations of merit. That said, the Legislature likely will be undergoing great turnover in the elections this fall. For example, Chairman Bromwell no longer will be in the Maryland Senate since, as announced three days after the session ended he has accepted the chairmanship of the Injured Workers’ Insurance Fund.
Working Spouses of Deceased Workers – A Small Victory Our workers’ compensation subcom- mittee put forth an excellent effort this year. The subcommittee was chaired by Matt Paavola. Excellent effort was made by all the members of the committee, but Andy Kahn stands out for special men- tion.
The workers’ compensation subcom- mittee supported four different bills: (1) abrogation of principal contractor immu- nity where a subcontractor already has workers’ compensation coverage, (2) modification of the temporary partial stat- ute to eliminate the disincentive against returning to work part-time, (3) fixing the formula and increasing the benefits for partly dependent individuals where a worker is killed on the job, and (4) intro- duction of medical records in lieu of live testimony in workers’ compensation ap- peals. All of these efforts failed with the notable exception of the partly dependent individuals bill. Under current law, there is a major dis- tinction between persons who are totally dependent on the deceased worker and those who are partly dependent. The ben- efits afforded to a totally dependent individual are much higher than those for a partly dependent individual. The situ- ation was rectified some about three years ago when the cap was raised for partly dependent persons was raised from $17,500 to $45,000. Nevertheless, the
Summer 2002
partly dependent individual statute con- tains a very odd formula that which in effect says that if a partly dependent per- son is working a minimal amount and making little income, they actually are entitled to less of a benefit than a partly dependent individual who is working full- time. The statute has the odd effect of giving more benefits per week to persons who are less in need of them. Our bill sought to fix the formula and to leave the amount of benefits open-ended. We were successful in the first regard, and only modestly successful in the second regard. The Senate and House passed a bill which fixes the formula for partly dependent individuals and raises the cap from $45,000 to $60,000. We expect to be seeking a higher level the next session for partly dependent individuals.
Medical Malpractice The medical malpractice subgroup was
chaired by Wayne Willoughby. The ef- forts of this subgroup were outstanding. Special mention and thanks goes to the efforts of David Wildberger and Alison Kohler.
The med mal subcommittee sought
legislative support for two bills which were introduced. The first was to reverse the decision in Green v. North Arundel Hos- pital Association, 366 Md. 597 (2001), a Court of Appeals case being frequently cited by the defense bar to exclude dis- abled plaintiffs from their own trials. This decision would appear to be contrary to the concept of inclusiveness for persons with disabilities. Indeed, the majority’s decision yielded a strong dissent by Judges Bell and Rodowsky. Alison Kohler led our efforts on this bill. Both the Senate and House committee hearings on this bill were tremendous. There was an outpour- ing from groups advocating for persons with disabilities. However, the Green bill never got a vote in either the Senate Judi- cial Proceedings Committee or the House Judiciary Committee because the respec- tive chairmen of those committees, Senator Walter Baker and Delegate Joseph Vallario, did not want it to be voted. The fate of the Green bill demonstrates the importance and power of chairmanship of committees in the Maryland Legisla- ture. We will try again next year. The other bill supported by the med mal subcommittee was a bill to address ex parte communications between defense counsel and patients’ treating doctors. In Maryland, it is becoming common prac- tice for defense counsel in medical negligence cases to seek out ex parte con- tact with the claimant’s treating physicians
Trial Reporter
and list them as experts against the Plain- tiff without the Plaintiff ever knowing about the communications that are go- ing on behind their back. Unfortunately, the case of Butler-Tulio v. Scroggins, 139 Md. App. 122 (2001), appears to endorse this practice. A bill was introduced on the House side, but failed in the House Judi- ciary Committee vote. We expect to be pursue a version of this bill again next year.
Comparative Negligence A comparative negligence bill was in- troduced by Senator Exum. However, it was introduced after the bill introduction date and wound up stagnating in the Sen- ate Rules Committee.
There was no
significant change in the composition of the Senate Judicial Proceedings Commit- tee from last year and so the bill never appeared to have sufficient votes to pass that committee. As a reminder, the key choke point on that committee is Sena- tor Perry Sfikas who advised us early in the session that he was not changing his position against a comparative negligence bill.
Wrap Up
The efforts put forth on behalf of leg- islative effort were tremendous – and frustrating. Our lobbyists and the mem- bers of our committee worked very hard. I wish that we had more to show for it. We did prevent anything bad from hap- pening, and we do have a significant, albeit limited victory in the workers’ com- pensation area. But, we failed in our main legislative objective, which was a family exclusion bill. Of note to members is that there was a bill that was passed which cre- ates attorney liens on settlements in a situation where an attorney is discharged before the settlement is reached. The chairmanship of the legislative committee is being turned over to the very able hands of Wayne Willoughby. What the next legislature will bring is not known. However, one thing is certain, there will be tremendous change in the legislature.
Some estimate that the
amount of turnover in the Legislature during the current election cycle will ex- ceed one-half.
This presents great
potential for both opportunities and chal- lenges. MTLA, through its legislative efforts, will remain vigilant to protecting our clients’ rights against attacks on our civil justice system, and we will continue to pursue remedying inequities contained in Maryland law. Our goal remains the same as always which is to work to keep families safe through a fair and balanced civil justice system.
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