Lawmakers likely to OK cap for doctors

Tuesday, July 23, 2002 | 11:06 a.m.

When Las Vegas resident Jason Phillips testified against caps on damages for pain and suffering he did so accompanied by 12-year-old daughter Brittany, who has permanent brain damage.

His testimony Monday before a legislative subcommittee studying medical malpractice was a dry run for what state lawmakers can be expected to hear next week in Carson City when they meet in special session.

The Phillips family won an out-of-court settlement against a physician in a medical malpractice case in which they alleged that Brittany, who suffered from spinal meningitis, did not receive timely treatment. Phillips said the result was that his daughter had blood clots on the brain and a series of strokes that could have been avoided. After testifying, he said doctors who argue for caps should be in his shoes.

"There's no amount of money that can make you feel better," Phillips said. "Let doctors wake up every day knowing that they had a child that was OK, only to have it all taken away. Why does there need to be a cap? We're the ones who have to deal with this every day."

The third meeting of the subcommittee chaired by Assembly Majority Leader Barbara Buckley, D-Las Vegas, focused on whether Nevada should require health care professionals to report medical errors. But the daylong hearing at the Sawyer State Office Building touched on many other complexities surrounding the medical liability insurance issue.

Meantime, Gov. Kenny Guinn had dinner in Carson City Monday night with Senate Majority Leader Bill Raggio, R-Reno, and Assembly Speaker Richard Perkins, D-Henderson, to discuss the special session that begins next Monday.

"They went over the mechanics of the special session," Guinn spokesman Greg Bortolin said. "It reminds me of the beginning of a baseball game when the two managers get together at home plate with the umpire and go over the ground rules. There weren't any major deals brokered but I assume they were broached."

After the legislative subcommittee meeting, Buckley said she expected that the Legislature would pass a cap, although she also said it remains the most contentious issue on the table. Doctors want a $250,000 cap on non-economic damages that has been in effect in California since 1975, arguing that it has stabilized insurance rates in that state.

But some Assembly Democrats have argued that that number is too low. Trial lawyers, who oppose caps, say that amount would be $862,000 today based on inflation.

"It's too soon for me to speculate on what the final number will be with regard to caps," Buckley said. "I know there are a number of legislators, as well as Gov. Guinn, who feel we need to do our best to put forth a bill that will reduce anxiety and improve the level of health care, keep physicians in the community while protecting the victims of medical malpractice.

"The governor has indicated to Speaker Perkins and myself that he does not want this to be a partisan battle and we believe him."

Having said that, Buckley said there was no guarantee that the Republican governor and state Senate and the Democratic Assembly would pass a cap that would hold up constitutionally. Although the California Supreme Court has upheld the legality of the cap in that state, Buckley said caps have been ruled unconstitutional in Alabama, Florida, Illinois, New Hampshire, Oregon, Texas, Washington and Wyoming.

"Either our Supreme Court will say caps are constitutional or unconstitutional," Buckley, a lawyer, said. "It doesn't matter how we write the bill."

Lobbyist Billy Vassiliadis, who attended the subcommittee hearing and is representing trial attorneys in this dispute, also said he expects the Legislature to pass a cap because Guinn said he wants one. Guinn has said, however, that he didn't think the cap would be $250,000, citing other states such as Utah that have caps that are adjusted for inflation.

"If the governor says there will be a cap, I think it's pretty likely there will be a cap," Vassiliadis said. "He hasn't lost a lot of legislative battles."

But Vassiliadis said lawyers would not work out a "deal" to extract a trade-off for caps. Lawyers, for instance, want insurance industry reforms and mandatory reporting of medical errors.

"The lawyers will never deal for a cap that is part of legislation," he said. "It runs counter to everything they believe in. It limits the actions of a jury. It limits a jury's scope and lawyers believe that issue has been constitutionally determined. I don't think there is a cap in the United States that hasn't been constitutionally challenged."

The lawyers are certain to get an assist from families willing to tell lawmakers about the victims of medical malpractice. In addition to Phillips, the subcommittee fielded testimony from Las Vegan Kristie O'Neill, mother of 3-year-old Kevin. O'Neill, accompanied by her wheelchair-bound son, has sued a doctor for malpractice, alleging that a complicated birth left Kevin with cerebral palsy.

"It brings me to tears because of how much he has suffered and how much he will suffer," she testified. "It has turned not only his life around but that of his entire family. It's extremely difficult because what happened to my son was completely preventable. He does not live like a 3-year-old should.

"I don't think doctors should pay high rates because insurance companies made bad investments, but I don't think my son should pay for bad investments either."

In arguing against caps, O'Neill said her son "deserves much more than just adequate care."

"My son had no choice when he was born, but the doctor did and he made a bad choice. I don't know how you can put a cap on pain and suffering."

Among other highlights of the subcommittee hearing:

Hale urged the lawmakers to adopt legislation that would permanently extend UMC's $50,000 liability cap to physicians who work in the trauma center and emergency room as well as to those who treat indigent patients. He also wants lawmakers to pass "joint and several liability" provisions that would make physicians at UMC legally liable only for the percentage of damages as determined by juries.

"The trauma center could be drastically reduced or eliminated if solutions aren't found for the physicians of our community," Hale said.

Nowins said much of the problem has to do with the fact that obstetricians are not getting enough reimbursement from state-funded Medicaid and managed care insurers to cover costs.

Medicaid insurers countered that they increased payments by 40 percent to obstetricians this year. There was also testimony to the effect that physicians could do a better job adopting risk management strategies to reduce medical errors.

The legislative subcommittee initially was to have made its recommendations in December to be considered for the regular session next year. But because of the special session, the subcommittee now plans to submit its "consensus" recommendations to the Legislature next week.