New law results in more lawsuits

Thursday, Dec. 5, 2002 | 11:22 a.m.

There has been a sharp increase in medical malpractice lawsuits filed in Clark County District Court since a new law went into effect Oct. 1 that limits the amount of damages that can be won for pain and suffering.

The primary reason for the increase, according to one Las Vegas malpractice lawyer, is that a large number of cases were transferred from a screening panel that will eventually cease to exist under the new law.

From Oct. 1 through Dec. 4 there were 142 medical or dental malpractice lawsuits filed in District Court, compared to only 33 over the same period last year, according to court records.

Attorney Gerald Gillock said Wednesday that much of that was because lawyers who filed cases that were pending before the state Medical Dental Legal Screening Panel opted under the new law to have many of those cases transferred directly to court.

The panel, which includes three doctors and three lawyers who serve on a rotating and voluntary basis, has existed since the 1980s with the purpose of screening out frivolous lawsuits. Decisions rendered by the panel are admissible in court if a lawsuit is subsequently filed.

The new law will eliminate the panel after all its pending cases have been screened. That means it will probably remain intact until June, said Don Aimar, insurance counsel for the Nevada Insurance Division, which oversees the panel. Aimar said he did not know the number of cases that remain before the panel but said that 243 were filed statewide from January through September.

Under the new law, all cases filed after Oct. 1 were to go directly to court. But cases filed with the panel before Oct. 1 that were still pending after the law took effect could have been transferred to court through Monday, even if the screening process wasn't completed.

Gillock said he chose to transfer 15 pending cases from the panel to court and said other attorneys took the same path because it eliminated the possibility that doctors on the panel would rule that a case did not involve medical negligence.

"Many of the doctors that sit on the medical screening panel would not find in favor of the plaintiff regardless of how much malpractice there was," Gillock said. "I have even had doctors say there was no negligence when a foreign object was left in the patient."

Gillock said the only cases he left with the panel involve situations where foreign objects such as scissors or sponges were left in the patient's body or where the defendant has failed to respond to the panel. Both types of cases generally result in rulings in favor of the plaintiff, he said.

Dr. Ikram Khan, a Las Vegas surgeon who serves as the liaison between Gov. Kenny Guinn and a group of doctors that advocate tort reform, said he was disappointed that lawyers were transferring cases from the panel to court.

"It is an unfortunate development," Khan said. "We will have to see how this plays out."

The new law placed a $350,000 cap on damages for pain and suffering for most patients but such damages could reach $1 million for gross malpractice or if the court finds by "clear and convincing evidence" that there are "exceptional circumstances."

The law was hammered out in a special legislative session last summer after doctors complained that their medical practices were at risk because of skyrocketing malpractice insurance costs. A group of doctors has since gathered enough signatures to force the Legislature next year to consider legislation to remove the exceptions from the $350,000 cap. If the lawmakers decline to act, the measure would land on the 2004 general election ballot.

Meantime, Assembly Speaker Richard Perkins, D-Henderson, and Assemblyman David Brown, R-Henderson, both said they hoped the spike in medical malpractice lawsuits between Oct. 1 and Dec. 1 would level off over time.

"Sixty days isn't a trend," Perkins said. "We'll have to look at this over a longer period. Our anticipation was to thin out the number of lawsuits. If we experience more cases going to court, we'll have to address that."

Brown, an attorney who specializes in construction law, said he wasn't surprised in the increase in malpractice lawsuits because many plaintiffs, given the choice, would prefer to take their case to court rather than wait through the panel screening process. In many cases that process could take more than a year.

"I do think that we probably had a run on the courts and I think that number will back off," Brown said. "Certainly, the obligation of going before the panel is no longer there so it's easier for an attorney to pull the trigger and go to court. From a plaintiff's standpoint that makes all the sense in the world."

Gillock said, however, there were two reasons why he believes the new law could result in a permanent increase in malpractice lawsuits. One is that it can cost an attorney $20,000 to $50,000 to pay for the medical experts necessary to bring a case before the panel.

By going directly to court, Gillock said an attorney would have to spend only about $3,000 on a "good faith" affidavit that explains the malpractice alleged by the patient. If the lawyer can settle out of court, he doesn't have to incur the expenses necessary to pay for medical experts. This means the lawyer can file lawsuits that he might have been discouraged to file had he been forced to spend money up front on those experts.

Gillock said the other reason there could be a permanent increase in malpractice lawsuits is because there has been so much publicity drummed up in Nevada over this issue that it has raised public awareness as to the possibility of filing such lawsuits.

"This time last year I was rejecting 20 cases a month," Gillock said. "Now I'm reviewing and rejecting 60 cases a month. The doctors stepped on the tail of a sleeping tiger."

Larry Matheis, executive director of the Nevada State Medical Association, partially agreed with Gillock's assessment. Matheis said that while the new law was aimed at addressing the severity of malpractice damages, it may actually promote an increase in the number of lawsuits because of the elimination of the screening panel.

Matheis said he agreed with Gillock that an attorney could spend less money up front by filing a lawsuit rather than going through the screening panel. Matheis also said he feared that lawyers will compensate for the caps on pain and suffering by simply filing more lawsuits, replacing the lost money from the caps by taking on more volume.

"You could have aggressive trial lawyers who don't necessarily want to try a case in court who will file a number of cases hoping for a settlement," Matheis said. "I have been warning of this all through the process. I have been warning that the next crisis will not be one of severity of malpractice lawsuits but one of frequency."