Talks fail for doctors, lawyers

Friday, July 19, 2002 | 11:09 a.m.

Doctors and lawyers conceded that talks aimed at trying to produce a compromise they could take to Gov. Kenny Guinn to help solve the medical malpractice insurance dilemma have collapsed, with both sides blaming each other.

The biggest hang-up is that doctors insist on a $250,000 cap on damages for pain and suffering, an issue the lawyers oppose. No further meetings are scheduled between the two sides before the special legislative session is set to begin July 29 in Carson City.

Although the doctors and lawyers agreed on parameters to debate -- issues such as insurance reforms, reporting of medical errors and alterations to a state panel intended to weed out frivolous malpractice lawsuits -- both sides acknowledged Thursday that they do not plan to forward any written recommendations to Guinn.

Guinn met Thursday in Las Vegas for about two hours with the doctors' lobbyist, Pete Ernaut, and the lawyers' representative, Billy Vassiliadis, to get a sense of just how far apart the two sides remain.

Ernaut, a former assemblyman and chief of staff to Guinn, said he emerged from the meeting hopeful that some middle ground will be reached.

"I didn't think the trial lawyers would ever advocate for caps," Ernaut said. "But I do believe that when the Legislature meets that there will be a comprehensive reform package the lawyers will support and I strongly believe that it will include caps. I feel very confident about that.

"I have never seen an issue in the Legislature that had two clear sides where the middle ground didn't win."

But at a meeting Thursday night of the Nevada Medical Liability Physicians Task Force at The Mirage that had the feel of a pep rally and was attended by about 175 people, some doctors blamed the lawyers for breaking off negotiations.

Las Vegas surgeon Ikram Khan, the task force liaison to Guinn, complained that the lawyers broke off talks over the issue of caps on non-economic damages.

"The lawyers have withdrawn from negotiations on caps, which is very unfortunate," Khan said. "We haven't met formally for two weeks and there are no other meetings scheduled. It's very unfortunate that they have not taken the best interests of the 1.5 million people in Clark County, who will not have access to health care.

"The cap is the pivotal issue and the level of the cap on non-economic damages is the crux of the issue. Without a cap this community will see a mass exodus of physicians because of the escalating malpractice insurance premiums, which are totally out of control."

But Las Vegas attorney Dean Hardy, former president of the Nevada Trial Lawyers Association, blamed the collapse of talks on the physicians because of what he characterized as their rigid support of a California tort reform law. The Medical Injury Compensation Reform Act, passed by California in 1975, includes the $250,000 cap on damages for pain and suffering and a sliding scale of fees for the plaintiffs' attorneys.

"Yes, the negotiations have broken down," Hardy said. "The last time we met they were so intractable we couldn't go forward. Negotiations are successful if there is give and take. When the doctors say their bottom line is MICRA that eliminates compromise.

"I'm seeing inflexibility on the part of the doctors. Their response has been it's MICRA or nothing. That doesn't give us much hope to negotiate the issue. Legislation is going to pass and it should pass but it shouldn't be the legislation pushed by the doctors."

Instead, Hardy said the focus should be on insurance reforms instead of civil justice reforms.

Las Vegas attorney Jim Wadhams, a lobbyist for Nevada insurers, said the breakdown in talks doesn't necessarily mean the Legislature will also reach an impasse.

"The Legislature is used to dealing with controversial issues," Wadhams said. "The fact that talks have broken down means it will take a disinterested third party to break the impasse between the doctors and the lawyers.

"I don't think anyone came to the table in bad faith. The perspective is so institutionally different in the two sides that it cannot change."

Guinn, who favors tort reform, had given both sides until July 24 to reach a compromise and vowed he would fill the gaps with his own proposal to the Legislature. Now that talks have collapsed, Guinn spokesman Greg Bortolin conceded that it will be tough for lawmakers to reach a workable compromise quickly.

"I don't think anything has changed," Bortolin said. "He's working to fill the gaps that exist. We've been going down this road for six or seven months and we'll still go down the road until we can figure it out.

"This is an extremely difficult issue but it doesn't deter the governor from saying that for the well-being of our community we have to reach a consensus."

The rhetoric between both sides escalated when medical specialists, including orthopedic surgeons, resigned from the University Medical Center's trauma unit on July 3. They returned Saturday under a 45-day agreement that extends UMC's $50,000 liability cap to those doctors.

But the lawyers fired back with newspaper and television advertisements that took the physicians to task for walking out on the trauma center. The physicians task force announced at the meeting that it planned to fire back with its own set of advertisements to begin Sunday that will run throughout the state.

It was also announced at the meeting that the task force had picked up the support of the Las Vegas Chamber of Commerce, Nevada Development Authority and Nevada Resort Association.

"We really believe that you're in the right," Somer Hollingsworth, president of the Nevada Development Authority, told the gathering. "We really believe you need to stay on the offensive."

The meeting included a brief slide presentation by Dr. Robert McBeath, chairman of the task force, who attempted to make the doctors' argument for caps through a series of statistics comparing Nevada to California and national averages.

Though the number of medical malpractice claims filed per 100,000 Nevada residents has remained fairly flat over the past 15 years, McBeath said the real issue is that the severity of the claims has skyrocketed over the same period.

He said the average claim in Nevada, $34,719 in 1986, rose to $193,000 last year. He also said California, with roughly 15 percent of the nation's doctors, paid 30 percent of the claims in this country before 1975 but only 10 percent today.

"Reform needs to be focused on the severity of claims and that's MICRA reform," McBeath said.

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