Medical malpractice crisis: Doctors, lawyers continue PR assault

Erin Neff

Friday, July 19, 2002 | 3:48 a.m.

WEEKEND EDITION: July 21, 2002

Gov. Kenny Guinn holds his arms about three feet apart to illustrate the distance that separated doctors and lawyers when medical malpractice negotiations began.

He methodically moves both hands toward each other, stopping about 10 inches apart and proclaiming, "Progress is being made. And I hope," he adds, clapping his hands together with force, "that they can do this."

But a war of words erupting outside the private talks -- a battle playing out in newspaper and television ads, the closing of the University Medical Center's trauma unit and grass-roots lobbying -- makes it increasingly clear that consensus among doctors, lawyers and insurance companies isn't as simple as bringing hands together.

"There's nothing that's been reached," attorney Tim Williams said. "Nothing close."

With three days left until a recommendation is due to the governor, Williams' categorization is not a hopeful sign. And while Guinn is poised to offer a plan, saying "We have to get moving on this," a special legislative session may take everyone back over already-trodden ground.

Sources say the formal meetings have ended, and only a few representatives continue to talk by telephone.

The level of discourse between doctors and lawyers -- the two vocal parties in the negotiations -- was supposed to reach civility by the time the Legislature convenes in Carson City July 29.

Yet the public relations assault continues by both sides, as doctors hope to build grass-roots support for tort reform and lawyers showcase victims of medical malpractice and try to pin blame on insurance companies. The insurance companies just try to stay out of the public fray, largely because they aren't offering malpractice insurance in Nevada anymore, they say.

"The crisis is a lack of insurance, or that the insurance the doctors can get isn't affordable," said Jim Wadhams, a former state insurance commissioner who lobbies on behalf of the insurance industry.

But instead of working toward a consensus that will bring insurance companies the predictability they say they want, doctors and lawyers are frantically trying to "educate" the masses.

"The doctors' program is strictly educational," said Dr. Ikram Khan, a general surgeon who serves as a liaison to the negotiating team. "We're trying to make people understand what is working in other states.

"If we don't learn from other states, we're going to risk having more and more doctors leaving Nevada and leaving patients without care," Khan said.

Lawyers, in an $8,000 full-page ad in last weekend's combined edition of the Las Vegas Review-Journal and Las Vegas Sun, call talk such as that an "ultimatum."

"Doctors have given you an ultimatum that says, in essence, 'Give us what we want or we will withhold life-saving services from you and your family,' " stated the ad, paid for by the lobbying arm of the trial attorneys, Citizens for Justice.

Khan told the Sun that the ad is "offensive and resentful" and harms "decency and good intentions." Attorney Dean Hardy counters that doctors are acting like "extortionists," already holding hostage the trauma center's operations once and threatening another shutdown.

The truth -- like the eventual consensus plan the Legislature will approve -- is somewhere in the middle of the two extremes.

Still, doctors were hurt by the ad, and by the airing last week of the first of several planned television commercials featuring victims of medical malpractice.

Dr. Michael Daubs, an orthopedic surgeon, said the newspaper ad was insulting because it referenced the closing of the trauma center during a weekend President Bush warned could contain another terrorist attack, and thus associated "doctors who save lives with the horrific people who essentially murdered so many people."

Assembly Majority Leader Barbara Buckley, D-Las Vegas, chairwoman of the Legislature's interim committee studying the crisis, is convinced some solution is possible "regardless of the behavior of anyone involved in a legislative matter."

But, she cautions that threats of walkouts and other actions that close the trauma center don't sit well.

"If there are a few doctors who say, 'Do this or I leave,' and we find that doing that isn't in the best interest of the state, then they'll have to leave," Buckley said.

"Some doctors are saying, 'Pass this, with this word, this way,' " she added. "We don't tell them how to do their work by saying, 'Move this muscle and operate.' "

Republican lawmakers have been meeting almost exclusively with doctors and insurance representatives and, based on that lobbying, have a different view.

"My concern is we pretty much have a long-term solution, but what do you do to give the doctors some sense of security in the short term," Sen. Ann O'Connell, R-Las Vegas, said.

O'Connell says she doesn't think any consensus is likely before the special session begins. And she fears the issue cannot be settled by 63 lawmakers in the five or six days that the governor's office predicts the session will last.

"It is much too complex and much too involved," O'Connell said. "Physicians kind of live in a medical box. Doctors have never gotten involved in politics.

"They made some assumptions that everyone understood what (California's Medical Injury Compensation Reform Act) was and what medical errors are," O'Connell added.

MICRA is what doctors in Nevada largely want from a special session. It involves a number of civil-justice reforms, including $250,000 caps on noneconomic -- pain and suffering -- jury awards in malpractice cases.

Since it is increasingly likely it will be Guinn's plan -- and not that of doctors and lawyers -- that the Legislature considers, some doctors believe MICRA will be on the table.

Guinn previously said he supports a $250,000 cap on noneconomic damages. But after learning more about the crisis, he now says he supports some type of cap in concert with other reform. He is no longer committed to a number.

"He's a negotiator at heart," Marybel Batjer, Guinn's chief of staff, said. "He's striving to build consensus."

Pete Ernaut, Guinn's former chief of staff and a lobbyist for the doctors, says he believes what the Legislature ultimately approves will be a consensus between lawmakers and the governor -- not between the two main parties.

"If everybody walks away pretty unhappy you have a pretty good deal," Ernaut said. "I would hope that the doctors would view any type of tort reform passed for the first time in the state's history is good."

Some wonder how the governor's task force working privately toward consensus could insulate itself from the public barbs in the ads, newspaper stories and television interviews.

It couldn't.

Attorney Jim Crockett, a Nevada Trial Lawyers Association negotiator, said it was difficult to get physicians to accept anything any lawyer said.

"The doctors don't trust us," Crockett said. "The insurance companies are sitting back like Machiavelli and saying look at these doctors and lawyers fighting."

The insurance representatives don't have far to look.

During one negotiation, a doctor complained that victims of medical malpractice cases were receiving double payments after a settlement. An attorney took about 15 minutes to explain the issue and assure the doctor that Nevada law does not permit that.

When the conversation ended, a lobbyist asked if the group could move on to another issue now that the doctor's question had been answered.

"No, that's just what he says," the doctor reportedly said.

Sen. John Ensign, R-Nev., held a town-hall meeting earlier this year at UMC complete with pregnant women who couldn't find doctors and doctors who couldn't find insurance.

Outside, trial attorneys had several malpractice victims on hand to talk to the press.

"Look at them parading their victims around," a doctor said.

"Our victims?" a lawyer would later say. "They're the doctors' victims."

With the special session just eight days away, some lawmakers fear the Legislature will start by taking steps back to the beginning of the crisis.

Some doctors are still discussing the insurance premiums they were quoted versus the actual premiums they ended up paying. Some lawyers are still alleging that insurance companies are raising the rates because they took a bath in the stock market even though insurance companies have more than 80 percent of their investments in government bonds.

"The two primary groups are both so sharply focused and divided against each other on this," Wadhams said.

Still Daubs, Nevada Orthopedic Society president, says he remains "hopeful and optimistic" that the legislators will do what's right for the community.

"I think it's time to worry about why we are here as physicians and that's the patients," Daubs said. "This does not have anything to do with lawyers and doctors' grievances with each other. It has to do with patients. And in my opinion as a physician, if we don't have some type of reasonable meaningful reform, the patients are going to end up suffering."

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