Tag Archives: medicine

Morhaim’s Moment of Shame

By Barry Rascovar

March 6, 2017—It had to be one of the most painful and humiliating moments of Dan Morhaim’s life.

Last Friday he sat in the House of Delegates chamber as his colleagues voted 138-0 to reprimand him for not informing them and a state commission he had a conflict of interest on medical marijuana issues.

Morhaim's Moment of Shame

Maryland House of Delegate in State House chambers

All the while he was offering reams of advice and guidance to the very commission setting up rules for awarding those lucrative state licenses.

He broke no laws but he stepped far over the ethics line for elected legislators.

While Morhaim continues to insist “I did nothing wrong,” his colleagues unanimously disagreed.

Panel’s Findings

As the legislature’s joint ethics committee wrote in its report, Morhaim’s “belief that he could keep his role as a legislator, advocating for the implementation of policy and regulations for the use of medical cannabis, separate from his position as a paid consultant for a company seeking to enter the medical cannabis business reflects poor judgment to the detriment of the broader interests of the public. . .”

Further, the panel concluded Morhaim’s less than forthright actions “eroded the confidence and trust of the public and other governmental officials who work with legislators, bringing disrepute and dishonor to the General Assembly.”

The panel not only recommended a public reprimand but asked Morhaim to consider making a public apology. He did so in writing but declined to speak on the House floor.

He had not violated disclosure laws, Morhaim wrote. Nor had it been his “intent” to use his elective office for monetary gain. His sin, he explained, was that “I failed to appreciate the public perception of these issues.”

It was not much of an apology. A day earlier he had issued a three-page defense, blaming the media for “erroneous” reports of his activities. He later called the whole thing a “circus” in which his actions had been badly distorted.

Placing the onus on others for his predicament may salve Morhaim’s ego but it won’t sit well with elected leaders or with the public.

Who’s to Blame?

After reading the 17-page committee report, it is clear only Morhaim is at fault for what went wrong. It cost him his credibility, his subcommittee chairmanship and his leadership post in Annapolis.

Morhaim's Shame

Del. Dan Morhaim of Baltimore County

He agreed to have no future communications with the medical marijuana commission or its staff and to exclude himself from legislative activities regarding cannabis.

That’s a big concession from a politician who fought relentlessly and passionately for over a decade to bring medical cannabis to Maryland.

He also is giving up his financial arrangement with the medical marijuana company, Doctors Orders, a compensation deal the joint ethics committee called “substantial.”

Some legislators and ethics groups denounced the punishment as insufficient. Gov. Larry Hogan, Jr., in his haste to throw dirt on Democrats totally mischaracterized Morhaim’s actions, refused to acknowledge he had gotten the facts wrong and then called for Morhaim’s removal from office.

The governor used the Morhaim case to trumpet his call for tougher ethics laws and for placing enforcement under an executive office agency.

While it is obvious language in the ethics statute needs greater clarity, turning adjudication over to the executive branch could be unconstitutional and certainly is impractical.

Public shaming, such as Morhaim’s reprimand, has proved an effective tool for disciplining wayward public officials since biblical times. It’s the General Assembly’s responsibility to police conduct of its members, just as is true for the U.S. Congress.

Ultimately, though, it is up to voters to determine the fate of lawmakers who stray over the line of acceptable conduct.

Re-election Challenge

That is where Morhaim’s toughest battle may lie.

When campaigning begins next year in his northwest Baltimore County district, the physician-delegate will face constant questions and criticism. He could confront significant challengers harping loudly on his reprimand and denouncing his lack of responsible ethical judgment.

It’s an unfortunate turn of events for Morhaim. In his 23 years as a state delegate, he had developed into a standout lawmaker. His medical expertise as an emergency-room physician prove invaluable to his colleagues as they grappled with complex and often technical health-care issues. He has been a leader in much-needed procurement reform efforts in state government, too.

While public shaming is tough for any politician to swallow, Morhaim remains in a position to rehabilitate his badly damaged reputation.

How?

Put his grudges and hurt feelings aside, focus on using his knowledge and experience to help enact solid, progressive legislation and never again be tempted to abandon a strict standard of ethical conduct.

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Cannabis, Politics & Public Health

By Barry Rascovar

May 27, 2014 — According to the mother of the man who recently crashed his stolen dump truck through the doors of WMAR-TV and stormed through the TV station claiming he was God —  her son was a heavy marijuana user and that’s what caused his latest  psychotic episode.

Psychotic man crashes dump truck into WMAR-TV

Psychotic man crashes dump truck into WMAR-TV

The near-calamity brings new focus to the marijuana legalization debate in Maryland’s June 24 gubernatorial primary.

One candidate, Democrat Heather Mizeur, champions marijuana legalization. She claims its use “is less harmful to the body than alcohol or tobacco.”

A Maryland with legalized, regulated, and taxed marijuana will mean safer communities, universal early childhood education, and fewer citizens unnecessarily exposed to our criminal justice system,” her campaign website states.

Del. Heather Mizeur

Del. Heather Mizeur

Note the one area Mizeur does not mention — the impact legalization might have on public health.

The WMAR incident is only the most glaring example of what might happen in the public health arena under cannabis legalization.

Marijuana Concerns

As luck would have it, the most recent issue of Columbia Magazine from Columbia University arrived in the mail recently with a lengthy article on pot legalization and what the university’s researchers have to say.

Writer Paul Hond raised these questions: “What are the harms to individuals from using cannabis? Will legalization lead to more use? Will the roads be less safe? And what about the kids?”

All those concerns require careful examination before entertaining Mizeur’s desire to make pot legal in Maryland.Columbia Magazine

Hond first spoke with Margaret Haney, who has run Columbia’s Marijuana Research Laboratory for 15 years.

When chronic marijuana smokers were asked to quit as part of the lab’s studies, here’s what occurred:

“Sleep disruption is one of the most robust withdrawal symptoms,” Haney says. “The smokers had trouble falling asleep. They woke up in the night. They woke up early. Their mood, too, reflected classic drug-withdrawal symptoms: irritability, anxiety, restlessness. Food intake dropped precipitously. The first two days, they consumed up to a thousand calories less than they did under baseline conditions.”

Haney continues, “The consequences of dependence are not as severe as with alcohol, cocaine, and other things. . . . However, once you’re a daily smoker, your ability to stop becomes as poor as cocaine users’.” Haney notes that “only 15 to 17 percent are able to maintain abstinence.”

Impact on Teens

Haney is most concerned about the consequences of teens who smoke marijuana regularly. “There’s going to be a cost for teenagers doing that. . . . I do worry about the developing brain and the effect of heavy marijuana use on the brain’s cannabinoid receptors” that affect mood, memory and stress.

Herbert Kleber, director of Columbia’s Division on Substance Abuse and former deputy drug czar under President George H. W. Bush (Bush the Good), is alarmed about another aspect: Today’s tokes are loaded with much more of the potent psychoactive compound THC.Marijuana Plants

In this complex, high-pressured world, Kleber understands “a lot of people are looking for escape.” But this isn’t the marijuana of your father’s days.

Back when the Beatles’ John Lennon called marijuana’s effects “a harmless giggle,” the amount of THC in a joint was about 2 percent, Kleber says.

Enhanced Potency

“Now, the THC level of the average DEA [Drug Enforcement Agency] seizure is about 12 percent. At the dispensaries in California and Colorado, it’s 15 to 30 percent. . . It’s a very different drug. A very, very powerful drug.”

In previous interviews he has ticked off the public health hazards — “increased likelihood of cancer, impaired immune system, and increased chance of other drug problems, such as addiction to opiates. . . . Recently, substantial evidence has been published linking marijuana use to earlier onset of schizophrenia and other psychoses.”

Kleber is concerned as well about the impact pot has on the young.

Teen smoking marijuana “Marijuana does affect the brain. The younger you are when you start using it, the greater the risk that it will cause brain damage that will be with you the rest of your life.”

True, smoking weed isn’t as dangerous as a drug addiction, concedes John Mariani, director of Columbia’s Substance Treatment and Research Service. “Marijuana problems tend to be less dramatic — you’re not as ambitious, you perform less well. You probably stay home, watch TV, and eat ice cream. The disorder is about the absence of things — what doesn’t happen.”

Is that the brave, new world that awaits Maryland in a Mizeur governorship?

Pot and Driving

Another accusation is that marijuana legalization will dramatically increase highway accidents. Guohua Li, director of Columbia’s Center for Injury Epidemiology and Prevention, is studying that question. His findings indicate the alarmists are correct.

“First of all. . . the use of marijuana doubles the risk of being involved in a crash. The risk is not as great as with alcohol, which increases crash risk thirteenfold. But when a driver uses alcohol and marijuana, the risk of a fatal crash increases about twenty-four fold. So marijuana in combination with alcohol doubles the risk.”

Li’s 12-year study (1999-2010) of traffic fatalities found that marijuana involvement with car crashes tripled during that time.

Li also took on Mizeur’s main legalization thrust — that marijuana does less bodily harm than  alcohol. “If you argue that because alcohol is worse than marijuana. . . then marijuana should be legalized, that’s a race to the bottom, rather than a race to the top.”

Backlash to Legalization?

Even one of legalization’s supporters at Columbia, Carl Hart, a neuropsychopharmacologist, author and director of the Residential Studies and Methamphetamine Research Laboratories, worries these public safety and public health issues will lead to what Hond calls “a spirited backlash to legalization in the near future.”

Columbia University Prof. Carl Hart

Columbia University Prof. Carl Hart

In the past year, we’ve witnessed in Maryland a stampede among some politicians in Annapolis to give a younger generation of voters what they want — legal pot — even before they examine the possible consequences.

What we’re missing is a frank discussion of the wide-ranging ramifications legalization could have on society. The scientific results from Columbia University are not encouraging.

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Stonewalling MD Health Exchange Probe

By Barry Rascovar

April 7, 2014 – The Maryland General Assembly concludes its 2014 session Monday in good shape – except for one monumental omission: the mystery surrounding Maryland’s fatally flawed health exchange, which has squandered uncounted tens of millions of dollars.

It’s now clear both Gov. Martin O’Malley and Lt. Gov. Anthony Brown are content to stonewall and impede any detailed investigation of what went wrong in setting up the Maryland Health Benefit Exchange until well after the June 24 primary election.

Gov. Martin O'Malley

Gov. Martin O’Malley

Is there a cover-up going on?

Judge for yourself.

On Thursday, the state’s legislative auditor told lawmakers he had been thwarted in his attempt to conduct a meaningful review of the health exchange.

Because the exchange’s leaders only gave state auditors what was available to the public, “We don’t have the complete story,” said the chief auditor, Thomas Barnickel III. “There’s a lot we don’t know.”

Heavily Redacted

The documents auditors received were heavily redacted — a sure sign things are being hidden from view.

It’s also not in line with accepted auditing practices of state government agencies.

But when the governor and lieutenant governor want to make sure no one gets to the bottom of this historic debacle any time soon, the administration knows how to obfuscate.

No Sign of Rebecca Pearce

For instance, the exchange gave auditors 600 emails to or from Health Secretary Josh Sharfstein — the administration’s spokesman on this issue — but nary a single email involving Rebecca Pearce, who ran the troubled exchange until December.

Could such an astounding omission have been accidental?

The redactions were so numerous in the 14,500 documents that auditors couldn’t determine if the controversial contract awards were done legally or appropriately.

MD Healthcare Connection

MD Healthcare Connection

Auditors also couldn’t figure out how the exchange went about selecting the vendor who screwed up the exchange’s computer program — Noridian of North
Dakota — or how in the world the exchange opted to buy off-the-shelf software — as opposed to customized software — from IBM.

This software proved incapable of doing the job.

Auditors did learn from documents there was confusion within the exchange over points of contact, meeting schedules, lack of a program manager and even a lack of details about the project plan.

They made one definitive finding: The exchange conducted no performance testing whatsoever.

Is it any wonder this lemon of a software program crashed on Day One and has yet to fully recover?

Limited Document Release 

Exchange leaders also saw to it auditors didn’t get enough information to figure out who made those horrendously poor decisions, who was really in charge and who should be held to account for this debacle.

Democratic leaders in the legislature aren’t in any hurry, either, to pin some of the blame on Brown because that would hurt his campaign for governor.

So no one was indignant when it became clear last Thursday at a hearing in Annapolis that the legislature’s own auditors had been stonewalled.

Earlier in the week,  O’Malley and Brown laid out their own line of attack: We’re not at fault because it’s the evil contractors who messed up.

And who, exactly, hired those contractors? Aren’t those the ones who ought to be fingered?

What was Brown’s role as co-chair of the exchange’s oversight committee?

Lt. Gov. Anthony Brown

Lt. Gov. Anthony Brown

Didn’t he have to approve those contracts? Or was he only a figurehead?

It’s clear now the prime contractor never should have been chosen in the first place. Is that the contractor’s fault or the O’Malley-Brown administration’s?

What genius decided to launch the state’s most complex and expensive IT project with off-the-shelf software?

Is it IBM’s fault the O’Malley-Brown administration decided to take the cheaper route  and ended up with a turkey that was never designed for the tasks assigned it by the exchange?

Bait-and-Switch Tactic

Is it Noridian’s fault the O’Malley-Brown administration pulled a bait-and-switch?

Exchange leaders signed a fixed-price contract with Noridian that included 261 requirements for the software program — and then later added 227 new requirements, changed 28 of the original requirements and dropped 73 of the mandates Noridian had bid on.

O’Malley seems content to blame IBM for what went wrong. Yes, IBM made the off-the-shelf software, but it was never tailored for the complicated interfaces envisioned by the IT gurus in Maryland government. Yet IBM is now the governor’s fall guy.

Now IBM is pushing back. The computer giant says it went the extra mile to fit a round peg into a square hole, but it couldn’t “overcome the state’s failure to properly manage the implementation of the exchange.”

We may never know if that’s true because O’Malley won’t launch an impartial investigation. Indeed, he’s not launching any investigation into how potentially hundreds of millions of tax dollars were wasted.

This is the guy who wants to run for president?

Permanent Stain?

What an unmitigated calamity. No authority figure in Maryland state government wants to get to the bottom of this disgrace. No public group is pressing for action, either.

We’re left with an appalling mess.

The lack of accountability, transparency and responsibility — if not remedied — will become a permanent stain on the record of O’Malley and Brown. History will not remember this episode kindly.

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Obamacare: The Good, the Bad, the Ugly

Troubled Start But Strong Finish Likely

By Barry Rascovar

October 7, 2013–Let’s agree Obamacare’s sign-up period is off to a dreadful start. That Uncle Sam and most states botched the IT implementation phase is obvious. They get an “F” in computer science.

Is anyone surprised? How many times in the past has government screwed up technology initiation?

Flawed computer systems that crash often, can’t deliver on their lofty promises and cost billions to patch up are all too common on massive government IT projects (Exhibit One being the IRS).

Maryland’s botched IT approach to health care sign-ups seems especially ripe for criticism.MD Health Connection

That’s the bad news.

The Good News

On a positive note, this isn’t a dash but a long-distance race. There’s plenty of time to overcome the IT glitches. You’ve got till Dec. 15 to sign up for a health plan to gain coverage starting Jan. 1 and a full six months to get coverage starting later in 2014.

Early hang-ups on such a massive and complex undertaking had to be anticipated. Once computer snags and slowdowns are remedied, it will be interesting to see how enrollment turns out.

In states like Maryland, where the political establishment is a gung-ho backer of Obamacare, there’s a strong likelihood of broad acceptance. In states under Republican control, where leaders have made Obamacare the political Satan, enrollment may not be strong.

Indeed, this country could become a two-tier nation on health coverage split between the haves (states where most obtain health insurance) and the have-nots (states actively impeding efforts to give poor people and America’s underclass health coverage).

The Ugly

What’s playing out is, unfortunately, oddly familiar. An affluent, white, conservative ruling class primarily in Southern, Border and Southwestern states wants to re-create the United States in that image — even though they don’t have the votes to do it.

This also was the situation when Abraham Lincoln was elected president in 1860 and we know what came shortly afterwards.

This time, it is the Tea Party vowing to blow up the federal government to get its way.

The movement’s bitter hatred of the nation’s first black president sounds eerily similar to the vicious personal insults directed at Lincoln. There are strong overtones of racism and classism in the movement’s rhetoric and objectives.

Those with money and power in Tea Party states seek to deny those lacking money and power the right to receive health care, citizenship and the vote. It is a cynical, hedonistic movement pandering to the desires of narrow-minded, well-off folks who have no wish to help those less fortunate than themselves.

Who Wins?

In Maryland, you can spot overtures along these lines from political officials in Frederick and Carroll counties and from the First District’s ultra-conservative congressman, Andy Harris.

Maryland Rep. Andy Harris

MD 1st District Rep. Andy Harris

The plight of poor folks and minorities really doesn’t count for those politicians. They are pandering to the Tea Party crowd.

In rural parts of the Free State there’s a strong conservative tone to politics. That’s unlikely to change any time soon.

But the vast bulk  of the state’s population lies in Central Maryland, where liberal Democrats have a near-monopoly on public offices and public opinion.

So we know which side is going to win this argument in Democratic Maryland.

What’s less certain is the ultimate outcome in Tea Party states with fast-growing minority populations, such as North Carolina, Texas and Virginia. Next month’s governor’s election in the Old Dominion could give an indication as to which side is gaining the upper hand.

The Fate of Obamacare

Meanwhile, the dreadful stand-off in Washington continues with no end in sight. Republican hardliners don’t have an exit strategy.

One thing seems likely: Obamacare will remain on the books once the dust settles. Time is on the side of the president. As more and more citizens gain affordable health insurance, the Tea Party’s extreme arguments could bear less and less relationship to reality.

In the long run — a decade from now — Obamacare might prove unaffordable and unworkable as Republicans are predicting. Or it might be as ubiquitous and accepted as Social Security and Medicare. But that’s for another generation to debate.

The current leaders in Washington find themselves locked in a pointless and damaging food fight that in a few weeks could do great harm to the country and its economic stability.

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Obamacare: A Good Start in Maryland

By Barry Rascovar / August 8, 2013

IT’S A BRAVE, new world for healthcare insurance.

Republicans derisively call it Obamacare. They are bound and determined to kill, cripple or sabotage the program, however unlikely that may be.

They loudly cry that the president’s Affordable Care Act (ACA) will send insurance rates soaring and turn into a monumental debacle.

There’s no question the law is too complex, excessively detailed and bureaucratic. Liberal Democrats who passed it didn’t know enough about the dynamics of health insurance or what drives medical costs.

It’s also true this program is enormously expensive with hypothetical savings that may prove unerringly accurate or insanely off-base.

‘Socialized Medicine’

All this reminds some in the field of the “sky is falling” angst in 1965 when Medicare and Medicaid were created by Congress and Lyndon Johnson. Critics such as Ronald Reagan, Barry Goldwater, Bob Dole and the American Medical Association charged this amounted to “socialized medicine” and a dangerous government expansion that would curb individual freedoms.

Obamacare

Stethoscope

No one knew for sure if the approach would actually guarantee health care coverage for retirees and the poor. No one knew if the programs were affordable.

Nearly 50 years later, we’re still struggling with the latter issue but few question the effectiveness of these insurance programs in guaranteeing medical care for two groups of vulnerable citizens.

Based on what we know to date, Obamacare may follow a similar path.

The difference this time is the active sabotage efforts by the opposition party (Republicans). Such obstructionism to achieve political gains at the polls didn’t occur in 1965.

Still, early signs indicate Obamacare may not be an immediate disaster.

Health insurance rates in Maryland, New York. Colorado and California under the new program turn out to be affordable. (Comparisons with current health-care policies are pointless because mandated coverage is much broader under Obamacare.)

If, indeed, insurers can make money by accepting lower margins on a much bigger pool of customers – a common American business occurrence – everyone might wind up a winner.

$93 Per Month

In Maryland, the state insurance commissioner recently approved rates for individual health coverage under the Affordable Care Act that starts in January. The most basic, bare-bones policy can be purchased through the Maryland Health Connection for as little as $93 a month for a 21-year-old non-smoker in the Baltimore metro area.

The ACA policies also give consumers more benefits, such as free preventive care and a minimum of co-pays.

Additionally, individuals with incomes under $46,000 a year and families earning under $94,000 a year are eligible for federal tax credits that make this insurance even more affordable. State officials estimate three-quarters of uninsured Marylanders will qualify.MD Health Connection

All this sounds wonderful, but we’ve got a long way to go before Obamacare can be judged fairly.

First, let’s see if there’s enough competition to keep future rates low and affordable. Aetna, using conservative forecasting metrics, has pulled out of Maryland and a few other states for fear of losing money. Was this a wise short-term financial decision or a stupendous long-term miscalculation?

It means there’s one less competitor for those hundreds of thousands of Marylanders who will be eligible to shop for Obamacare health coverage in October.

One big question mark is how many of Maryland’s 740,000 uninsured citizens will seek affordable health-care protection. A big group of new sign-ups is needed to make the program work, especially among the “young invincibles” — healthy 20-somethings and 30-somethings.

We also won’t know for at least a year if the rates approved for 2014 accurately reflect the cost of insuring all those additional consumers.

A Shot In The Dark

Insurance companies are making their best actuarial assumptions as to what it will take to pay the medical expenses of so many newly insured individuals, especially those with preexisting conditions or haven’t seen a doctor in ages and may require costly initial work-ups and treatment.

Will it be more expensive than they expect or are their estimates overly cautious? It’s educated guesswork at this point.

Will the second-year and third-year rates in 2015 and 2016 shoot skyward like a rocket or come down to earth? That is a far more crucial period for establishing the viability of this program and a true baseline for insurance costs.

In Maryland, the big winners of the president’s health insurance program could be this state’s hospitals, especially those with a large proportion of uninsured patients, such as Johns Hopkins, the University of Maryland Medical Center and Sinai Hospital.

Even with Maryland’s unique all-payer rate-setting system that compensates hospitals for charity care, if the number of uninsured in the state shrinks dramatically it should mean more stable financial results for medical centers.

Given the struggles at Maryland hospitals to control rising costs with the meager rate increases approved this summer by super-cautious regulators, more insured patients would be welcome indeed.

Competition Is Key

Obamacare’s success could depend on competition – a word Republicans should be championing – among insurance companies for all the tens of millions of new potential customers. It is a once in a lifetime opportunity for insurers who can dramatically expand their subscriber base while maintaining a decent profit margin.

In states where Republicans haven’t erected intentionally daunting roadblocks, the new health insurance program is off to an encouraging start. Competition for these new members could yet drive down premiums.

It’s still early, though. It helps to remember that we’re only in the formative stages of this Grand Experiment.  ###

(A shorter, less global version of this column ran in the Community Times on August 7.)

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Legislating From the Bench in MD — Not This Time

Court of Appeals Sustains Contributory Negligence Doctrine 

BY BARRY RASCOVAR / JULY 16, 2013

IT WAS SUPPOSED to be a grand finale for Maryland’s top jurist, Robert Bell — a sweeping re-ordering of this state’s ancient negligence standards by wiping out the common law doctrine known as contributory negligence.

Retired Chief Judge Bob Bell

Retired Chief Judge Robert M. Bell

But a funny thing happened on the way to Bell’s retirement as Chief Judge of Maryland’s Court of Appeals: He couldn’t get his colleagues to go along with him. Instead, as often was the case during Bell’s tenure on the state’s highest court, he found himself in a distinct minority.

By a 5-2 vote, the court upheld Maryland’s contributory negligence doctrine employing the same logic as did Bell’s predecessor, Chief Judge Robert C. Murphy, 30 years ago.

In Maryland, and a handful of other states, if you contribute to your own injury, don’t bother suing others for negligence. It’s a common law standard that dates to 1848 in Maryland, 1809 in England and possibly all the way back to 1606.

Under this doctrine, personal responsibility is deemed paramount. It’s a quaint libertarian view in a 21st century world that increasingly tries to insulate individuals from any and all harm while blaming others — especially those with deep pockets — for our own stupidity or irresponsibility.

Bell dearly wanted to discard contributory negligence. He even formed a special judicial panel to study the matter and report back to him. Those findings didn’t go Bell’s way. The group’s conclusion: This is a complicated matter best left to the General Assembly.

But the chief judge wasn’t deterred. When a test case came along, he made sure the high court grabbed it.

IF ONLY . . .

In an ideal world, a comparative negligence standard would make total sense. Juries would impartially analyze legal arguments and decide how much the plaintiff was at fault for an injury and how much the defendant was at fault.

But juries often render emotional decisions based on the tragic plight of the defendant, heartbreaking tales of loved ones and fire-and-brimstone arguments from plaintiff lawyers urging jurors to hold Big Bad Business to account.

Opening up Maryland to comparative-fault standards would create a huge financial bonanza for litigators and a veritable tsunami of lawsuits swamping Maryland courts.

It also would present an enormous danger to the financial viability of many Maryland businesses, including the state’s medical industry. The number and size of malpractice lawsuits could go through the roof. If you think finding an obstetrician in Baltimore City — a jurisdiction notorious for outsized jury verdicts against doctors — is difficult today, imagine what it would be like if litigators started suing every doctor in sight for the most minor of medical problems patients encounter. If doctors think their malpractice insurance is high now, just wait.

Contributory negligence was embraced in this country in the early 1800s in part to guard against such predatory practices by litigators. Legislators feared that juries, egged on by plaintiff lawyers demanding huge damage awards, would award sums that could kill the nation’s newly developing industries.

That same fear, in a slightly different form, still haunts state lawmakers in Annapolis — and a majority of the state’s highest court.

SEPARATION OF POWERS

The larger issue facing the high court was whether to legislate from the bench.

The panel agreed it had the power to revise a common law rule like contributory negligence. That the jurists refused to do so is a tribute to the majority’s determination not to extend its authority beyond the traditional dividing line separating judicial and legislative branches.

Five of the seven judges concluded: This is a complex, deeply intertwined legal doctrine that can only be altered after considering a kaleidoscope of ramifications affecting the entire gamut of tort liability and insurance law. That’s the role of the legislature, not the courts.

Judge John C. Eldridge, who wrote the majority opinion, even used Bob Bell’s own words against him. He quoted from a 2008 ruling in which the Chief Judge had written, “It is well settled” that when the General Assembly makes clear its wishes on public issues, “the Court will decline to enter the public policy debate” — even if the issues involve a common law doctrine.

It is doubtful these jurists would have wasted so much time and energy debating this matter had not Bell insisted.

In the end, a substantial majority merely re-stated Bob Murphy’s 30-year-old logic for maintaining the legislature’s right to determine the fate of contributory negligence. Any other conclusion, Eldridge noted, “would be totally inconsistent with the Court’s long-standing jurisprudence.”

In Dissent

 ‘A dinosaur roams yet the landscape of Maryland’

Three cheers for Court of Appeals Judge Glenn Harrell for adding some levity to the dry and often ponderous writings of the state’s highest court.

Harrell passionately believes the state’s doctrine of contributory negligence needs to be deep-sixed. It is unfair and out of date, he says. He prefers a pure comparative negligence standard.

The problem is that he was virtually alone in making this argument. Only retiring Chief Judge Bob Bell sided with him.

Appeals Court Judge Glenn Harrell

Appeal Court Judge Glenn Harrell

Harrell, though, didn’t go quietly. He stated his arguments at great length — nearly three times longer than Eldridge’s majority opinion and nine times the length of a supplemental majority opinion by Judge Clayton Greene (with three co-signers).

What’s eye-catching about Harrell’s rant — he’s not a happy camper — is the judge’s opening salvo, which is dripping with mockery, humor and irony.

Here it is:

     “Paleontologists and geologists inform us that Earth’s Cretaceous period (including in what is present day Maryland) ended approximately 65 million years ago with an asteroid striking Earth (the Cretaceous-Paleogene Extinction Event), wiping-out, in a relatively short period of geologic time, most plant and animal species, including dinosaurs. As to the last premise, they are wrong. A dinosaur roams yet the landscape of Maryland (and Virginia, Alabama, North Carolina and the District of Columbia), feeding on the claims of persons injured by the negligence of another, but who contributed proximately in some way to the occasion of his or her injuries, however slight their culpability. The name of that dinosaur is the doctrine of contributory negligence. With the force of a modern asteroid strike, this Court should render, in the present case, this dinosaur extinct. It chooses not to do so. Accordingly, I dissent.

     “My dissent does not take the form of a tit-for-tat trading of thrusts and parries with the Majority opinion. Rather, I write for a future majority of this Court, which, I have no doubt, will relegate the fossilized doctrine of contributory negligence to a judicial tar pit at some point.”

 Yes, Harrell was outvoted on the state’s highest court. But at least for two paragraphs he was entertaining.

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Look to Shock Trauma’s success

By Barry Rascovar / The Community Times / May 15, 2013

After a response team dragged unconscious firefighter Gene Kirchner from an intense three-alarm house fire on Hanover Road in the early hours of April 24, he wound up in the only place equipped to deal with his life-threatening injuries, the Maryland Shock Trauma Center.

Unfortunately, even the renowned doctors at Shock Trauma could not save Kirchner, an eight-year veteran of the Reisterstown Volunteer Fire Company.

He died last Thursday, only the second firefighter to die in the line of duty in the 100 years of the RVFC.

It is not often that Shock Trauma loses its battle to preserve life. Fully 96 percent of those admitted survive.

Trauma doctors there believe that if badly injured patients arrive at Shock Trauma within that “golden hour” following an accident they can be saved.

Using unconventional methods such as simultaneously treating multiple aspects of a patient’s critical injuries immediately upon arrival, the Maryland Shock Trauma Center has revolutionized emergency medicine.

But sometimes there is little doctors can do to help someone as critically injured as Gene Kirchner.

Ironically when the center’s staff and guests gathered for their annual gala recently, the evening centered on another fatality that had been turned into a remarkable “gift of life.”

Physician-in-chief Dr. Tom Scalia described how he and his team fought to revive a pedestrian who had been struck by a car, 21-year-old Joshua Aversano of White Hall. Sadly, Joshua’s brain injury was too severe.

At that point Joshua’s family made the decision to contribute Joshua’s body parts to help others. What followed was a true miracle.

Over a three-day period, six people were given life-saving organs, Joshua’s heart, liver, pancreas, kidneys and lung. It was a mighty tribute to Joshua and his family, and to the enormous skills of the Shock Trauma team at the University of Maryland Medical Center.

But the truly amazing part of the story was yet to come: using Joshua’s facial bones, skin, tongue, teeth and underlying muscle and tissue to perform the world’s most extensive full-face transplant.

Over 150 doctors, nurses and other professionals participated in this 36-hour marathon. The Virginia patient, who had lived as a recluse since a 1997 gun accident shattered his face, received a new lease on life.

When 37-year-old Richard Norris walked on stage, he was a man reborn with nary a wrinkle.

An incredible amount of research preceded the surgery, much of it funded by the Office of Naval Research. The hope is that similar facial transplants will aid servicemen maimed by explosives.

Each year, 8,600 gravely injured people arrive at Shock Trauma, most of them via State Police Medevac helicopter, part of Maryland’s integrated emergency medical network.

It is a remarkable organization, heavily supported by taxpayer dollars. They did their best to save Gene Kirchner. He would have been the first to recognize their heroic efforts.

Barry Rascovar of Reisterstown is a writer and communications consultant. He can be reached at brascovar@outlook.com.