Claims against doctors rise in county

Wednesday, Feb. 13, 2002 | 11:32 a.m.

Medical malpractice cases in Clark County more than doubled over the past six years, with plaintiffs winning more than $21 million in jury awards last year, court records show.

The numbers appear to show the spiraling cost of malpractice cases -- $225,000 was awarded in just one case in 1996 -- though the statistics show only cases that went to trial.

Numbers for medical malpractice are up across the board -- from medical board complaints to lawsuits to judgments -- and the numbers are at the center of the state's raging debate over the issue.

Insurance companies say they're raising premiums because of big jury awards and more cases. Doctors -- many of whom are saying they'll leave the state -- say they're forced out because of the high rates and all of the litigation. Trial lawyers say they are bringing forward cases that are legitimate and are needed to protect the public from negligence.

Larry Matheis, executive director of the Nevada State Medical Association, said it is this cycle of a system constantly feeding on itself that has caused the current malpractice insurance crisis.

"No question, the doctors are being squeezed," Matheis said. "The escalation of these judgments also results in even higher figures upon which future settlements will be based. And that is something the insurance companies have to plan for."

The number of complaints from the Las Vegas area heard by the state's Medical-Dental Screening Panel, which must review all cases before they proceed, rose 50 percent between 1996 and 2001, compared with growth in the state's population of 33 percent.

In the same period the panel found more of the complaints brought before it were justified. In 1996 only 14 percent of claims the panel heard were substantiated. In 2001 that was 24 percent.

The outcome of recent court cases has caused physicians like Dr. Robert Wiencek, a 43-year-old cardio-vascular surgeon who has been in practice locally for 11 years, to settle cases regardless of their merit.

"I have had to settle some malpractice suits even when I felt I was right and could win them," said Wiencek, who spends 11 percent of his gross income on malpractice insurance and figures that will more than double. "I just couldn't afford to go to trial and get hit with one of those big judgments."

The judgments are coming more often in Clark County.

Since 1997, when local plaintiffs won just 14 percent of malpractice cases, the percentages of plaintiff victories have climbed steadily to 25 percent in 1998, 31 percent in 1999, 44 percent in 2000 to 54 percent last year, District Court records show.

Wiencek, who like many area doctors is facing the possibility of closing his office if he cannot find an insurer by June 9, when his current policy runs out, carries $1 million liability coverage per patient.

In past years that amount seemed ample.

Only one out of the eight cases in 1998 exceeded that cap, and two out 13 the following year, District Court records show.

But last year, six out of 13 awards for plaintiffs exceeded $1 million, and three awards -- $6 million, $5.4 million and $4.5 million -- each were greater than the total malpractice judgments for 1997 and 1998, court records show.

"The state has to find a way to protect (doctors) against jury awards that exceed doctors' per-patient coverage," said Wiencek, who got his medical degree from St. Louis University in 1983. "I want to stay in Las Vegas, but from a business standpoint, this is the straw that breaks the camel's back."

Preparing for the worst, Wiencek, a married father of four school-aged children, has put his house up for sale.

Dr. Kelly Kogut, a 36-year-old pediatric surgeon, agrees that the long-term solution is to set limits on the size of jury awards to encourage insurance companies to compete and offer more reasonable rates for malpractice insurance.

"I saw a TV news report where an attorney said if we put caps on malpractice awards it will give doctors licenses to kill -- that was just so hurtful," said the 1991 Columbia University graduate and married mother of two.

"What I see is babies born with problems and I fix those problems and give those children back to their parents and say now go enjoy that healthy child. Sometimes we make mistakes. But we do the best we can. We need a cap on malpractice awards and we need tort reform."

The malpractice crisis was spurred by the Dec. 12 announcement by the St. Paul Cos., which provide malpractice coverage to 1,328 -- 60 percent -- of the state's doctors, that it is leaving the malpractice business.

Andrea Wood, spokeswoman for St. Paul Cos., said the company will not consider remaining in Nevada even if there are changes in the law.

"This is not just about Nevada, this is a national problem," she said, noting that last year the company in Nevada alone paid out $1.88 in malpractice claims for every $1 it collected. "We have to stem our losses."

A number of the state's other 11 malpractice insurers have increased rates 300 to 600 percent, while still others are balking at even providing such coverage.

Doctors are pushing for a special session of the Nevada Legislature to address the medical malpractice crisis. Greg Bortolin, press secretary for Gov. Kenny Guinn, says it is premature for the governor to make a decision whether to call a special session on medical malpractice.

Bortolin said state Insurance Commissioner Alice Molasky-Arman, at Guinn's direction, has called a March 4 public hearing on the matter.

William Patterson Cashill, a Reno lawyer and member of the Nevada Trial Lawyers Association, doubts doctors will flee the state in large numbers.

"The number of physicians in Nevada has nearly doubled since 1988," he said. "The truth is that there are more physicians than ever before.

"Since St. Paul's withdrawal is a national crisis, why would a physician leave an established practice in Nevada for an unknown professional future? In addition, according to studies in other states, there is no correlation between where physicians practice and state liability laws or insurance rates."

Matheis said that while the malpractice insurance problem is national, it does not affect every state the same. Matheis said a local cardio-vascular surgeon can go to California, which has caps on malpractice awards, and "pay one-third to one-half what he is paying here" for malpractice insurance.

Matheis said one solution to the problem could be for Nevada doctors to set up their own company to provide medical malpractice coverage much like they did in the mid-1970s when they formed an underwriting association.

For 15 years, the market stabilized under the Nevada Medical Liability Co., which ironically was purchased by St. Paul, Matheis said.

"We are talking with every insurer and are looking at the cost of establishing a mutual insurance company," Matheis said. "But progress has been slow."

Sun reporter Cy Ryan contributed to this report.