Thursday, Aug. 1, 2002 | 11:19 a.m.
CARSON CITY -- The state Legislature this morning unanimously passed a comprehensive tort reform bill designed to curb skyrocketing medical malpractice insurance rates and encourage doctors to stay in Nevada.
Assembly Bill 1 places a $350,000 cap on damages for pain and suffering with two exceptions, gives liability protection to doctors who treat trauma and indigent patients, and provides for speedier processing of malpractice lawsuits.
It also will establish a centralized medical error reporting system provided funds are approved by the Legislature for that purpose next year. The bill becomes effective Oct. 1, subject to approval by Gov. Kenny Guinn, which is a mere formality since a large chunk of the legislation came from his proposals.
"I truly feel this will keep doctors here," Guinn said. "Tort reform is not going to reduce existing prices but it will provide stability. What the doctors wanted was to see light at the end of the tunnel."
The legislation was finalized when a six-member conference committee that included state Senate Majority Leader Bill Raggio, R-Reno, Assembly Speaker Richard Perkins, D-Henderson, and Assembly Majority Leader Barbara Buckley, D-Las Vegas, sat around a table and settled differences between the Assembly bill and a Senate version.
The end of the four-day special session, which came at 4:27 a.m., brought smiles to the faces of the Nevada Medical Liability Physicians Task Force, a coalition of doctors that led the tort reform battle. They say the legislation should stabilize insurance rates and eventually lower them over time.
"The bill is historic and good for Nevada and its physicians," Dr. Robert McBeath, a Las Vegas urologist and chairman of the task force, said. "I'm very hopeful that it will stabilize the medical malpractice insurance market and lower the premium rates for physicians, which will guarantee our citizens access to affordable quality health care."
The state's 18th special session had been called by Guinn after physicians complained that their malpractice insurance rates increased by as much as 300 percent over the past year. Lawyers blamed the crisis on poorly managed insurance companies who made bad investments and on St. Paul Companies of Minnesota, which abandoned 60 percent of the medical liability market in Nevada last year.
Doctors, however, attributed the rate increases to high-dollar jury awards and settlements in malpractice cases.
Jim Wadhams, an insurance industry lobbyist from Las Vegas, said he was encouraged by the outcome as well, even though he said there are no guarantees insurance rates will go down. He said he thinks the caps will add predictability to the rates set by insurers.
"This bill is a positive step in improving the insurance marketplace," Wadhams said. "It will not have an immediate impact. It will take months and maybe years to have impact. But the physicians should leave here with the sense that the Legislature made a significant move to improve the situation."
Less thrilled were trial lawyers, who said they feared that victims of medical malpractice will be shortchanged because of the limits the damage caps will place on jury decisions.
"It's a tough day for the people of this state who don't know it's a tough day because they're not faced with a medical malpractice claim," Las Vegas attorney Dean Hardy, past president of the Nevada Trial Lawyers Association, said. "When they are faced with a claim they'll be surprised and disappointed that there is a cap and in serious cases they'll be outraged."
Hardy said he is certain the tort reform will be constitutionally challenged in court, but Guinn expressed confidence that the legislation will hold up.
"If you look at most states, the ones where caps were declared unconstitutional were because they had the cap with no exceptions," Guinn said. "The ones that have been upheld have had some exceptions."
When reminded that the California Supreme Court upheld a 1975 tort reform law in that state that contains a $250,000 cap on damages for pain and suffering with no exceptions, Guinn said he doubted that that law would pass today.
AB1 actually contains two caps in Guinn's opinion because it has two exceptions to the $350,000 cap, and both exceptions are capped at $1 million each for pain and suffering.
Those exceptions are for gross malpractice and in cases where the court -- after a bench trial or jury verdict -- finds that an award of more than $350,000 for pain and suffering is justified because of "exceptional circumstances."
Because doctors in Nevada have insurance policies that do not exceed $1 million per incident, that is the most they can be expected to pay in pain and suffering damages under the exceptions. But if a jury finds that the plaintiff deserves $800,000 for economic damages to cover medical expenses and lost wages, the most that individual could collect from the doctor for pain and suffering would be $200,000.
But Las Vegas attorney Gerald Gillock said cases involving gross malpractice are rare and that the other exception gives the court too much discretion to determine "exceptional circumstances." The bill adopted by the Legislature included the Senate's language, eliminating six other exceptions such as for death, brain damage and sterility that were in the original Assembly version.
"This elimination of the individual exemptions jeopardizes the rights of people, particularly in cases of death and procreation," Gillock told an Assembly committee that studied the legislation.
One highlight of the bill is that it will protect doctors and dentists from civil liability when they provide free medical and dental care to indigent patients. State Sen. Ray Rawson, R-Las Vegas, a member of the conference committee and a dentist, said this provision ought to make health care more readily available to indigent patients. He also said doctors should benefit from the legislation.
"There really are a number of items that will help them but they have a hard economic road ahead of them," Rawson said. "If they can last it out another year or two, they can see significant relief."
Another benefit of the legislation is that it will place all doctors who treat trauma patients under a $50,000 liability cap, a provision that applies to all trauma centers and emergency rooms in the state. A traumatic injury, as defined by the bill, means any acute injury that involves significant risk of death or the "precipitation of complications or disabilities."
Ann Lynch, spokeswoman for Sunrise Hospital and Medical Center, said she believes that provision will encourage more physicians to work in emergency rooms because they will feel protected by that cap..
"It will give all hospitals more people on their staffs who will be willing to be on call," Lynch said. "I don't think our emergency rooms are weak now but they were getting weaker because more physicians were refusing to take calls."
A medical error reporting provision pushed by Assembly Democrats also made it into the final bill, though its implementation will rely on the Legislature deciding to spend an estimated $300,000 to $400,000 to fund the system that would be run by the state health division. Hospitals and other medical facilities would be required to report to the state events that involved death or serious physical or psychological injury. The state would compile the information in an effort to help correct the problems that led to those medical errors.
There is also whistleblower protection for individuals who wish to report such medical errors, a provision that would be implemented beginning next July even if the funding for the rest of the medical error reporting system is denied.
Other provisions of the legislation would: Abolish the state Medical Dental Legal Screening Panel that was designed to eliminate frivolous lawsuits and instead require courts to process medical malpractice cases within three years through October 2005 and two years thereafter; limit a doctor's liability for pain and suffering damages to the percentage of negligence attributed to them; require district court judges to be trained to handle medical malpractice cases; require malpractice lawsuits to be filed within three years of an injury or two years after a plaintiff discovered or should have discovered the injury, whichever occurs first; and require lawyers to pay monetary penalties for filing frivolous lawsuits. The law would require hospitals and insurers to pay a $10,000 fine if they fail to disclose disciplinary action taken against doctors to the stat e Board of Medical Examiners.
Dr. Ikram Khan. a Las Vegas surgeon who was the physicians' task force liaison with Guinn, called the legislation "the meaningful tort reform package we were working for over the past six months."
"Hopefully it will make physicians see the light at the end of the tunnel," Khan said.
State Sen. Lawrence Jacobson, R-Minden, who lost his seat to reapportionment, was honored in the final minutes of the session for his 40 years of legislative service, longer than any other person.
Former eight-time Assembly Speaker Joe Dini, D-Yerington, who was first elected in 1966, also sat in on his last session, having chosen to retire. He was also praised for his service.
archive
