Lawyers, doctors dispute bill

Tuesday, July 30, 2002 | 10:59 a.m.

CARSON CITY -- Gov. Kenny Guinn and Nevada's other leading state lawmakers wore smiles when they announced a bipartisan bill to address rising medical malpractice insurance rates Monday, but ensuing testimony from lawyers and doctors proved that no one was doing cartwheels over the proposal.

Among the leading combatants, however, doctors were clearly happier about the proposed $350,000 cap on damages for pain and suffering than were lawyers, who said that the limit is certain to face a constitutional challenge.

"The governor has made an historic and bold decision in proposing his bill and I look forward to the legislative bodies consolidating the bill," Las Vegas surgeon Ikram Khan said. "The $350,000 cap is a meaningful cap in the context of the whole package. We have been given to understand from the insurance industry that rates would start coming down with a cap."

The agreement embraced Monday by Gov. Kenny Guinn and top Republican and Democratic lawmakers in the state Senate and Assembly was announced six hours into the special session that the governor called to resolve the medical liability dilemma. The proposal, which includes numerous exceptions to the cap, was reached after closed-door meetings that also involved representatives of lawyers and doctors but not insurers.

"We have come to agreement on a very comprehensive reform bill that can hopefully set the tone for tort reform that will be fair to as many people as possible," Guinn said. "We have to make sure it works so we don't have to come back in six months."

The bill was introduced in the state Senate on Monday where the Senate, sitting as a committee of the whole, received testimony. The bill was introduced this morning in the Assembly.

After hearing lawyers complain later about a cap of any size and listening to doctors state their preference for the $250,000 limit adopted in California, state Senate Majority Leader Bill Raggio, R-Reno, questioned why no one who testified was fully embracing the proposed compromise.

"We haven't heard any testimony of that kind so have we been led astray here?" Raggio said. At another point during testimony, Raggio quipped: "So far we've heard no testimony of a compromise from both sides."

Lawyers certainly weren't pleased, arguing that a cap places undue limits on the civil justice system and therefore reduces an individual's constitutional rights. Las Vegas attorney Dean Hardy, past president of the Nevada Trial Lawyers Association, told the Senate that with adoption of a cap, "You are trampling on a sacred document, the Constitution."

"Please do not take lightly that we are limiting people's access to judgment," Hardy said. "When you eliminate access to a court, you are trampling on the Constitution."

Fellow Las Vegas attorney Jim Crockett was armed with statistics that revealed that the average liability premiums for general surgeons last year was $26,746 in states with caps on non-economic damages but only $26,144 in states without caps. He and other lawyers argue that caps, therefore, will do nothing to lower insurance rates.

"We are not a government of the insurance industry, by the insurance industry and for the insurance industry," Crockett said.

After testifying, Hardy said that "the constitutionality of the cap is not for me to decide but it's for the Nevada Supreme Court to decide and I think they will be given that opportunity."

"I cannot imagine that this will not see some kind of court challenge at some point," Hardy said.

Guinn and Assembly Speaker Richard Perkins, D-Henderson, both said they were not concerned about possible legal challenges of the bill.

"We did not come here with the intent to pass a law that would not pass constitutional muster," Perkins said. "All we can do is prepare the law and let the litigants take it to court. We have a Supreme Court that is reasonable.

"In a perfect world there is no cap and we'd let a jury decide what is appropriate. But we don't live in a perfect world and with the civil justice system we have today it isn't working."

Doctors said they believe the legislative proposals would help keep physicians in the state and permit University Medical Center's trauma center to remain open. As of earlier this month, 29 doctors had left Nevada and 14 others took "early retirement" because of rising medical liability premiums, according to the Nevada State Medical Association.

"That will be an individual decision based on the impact on insurance premiums over the next few months," Khan said of any possible future departures. "Those of us whose insurance is not up for another six to eight months are in no rush to leave."

Khan, however, testified that he was prepared to leave the state next spring if caps were not imposed. Las Vegas obstetrician Dr. Florence Jameson told senators her malpractice insurance rose from $42,000 last year to $137,000 this year even though she has never had a claim filed against her.

"I'm looking at this beautiful health care system implode like one of our casinos," she testified.

Afterward, Jameson said she was not overly concerned about the proposed exceptions to the cap because for the most part the maximum exposure doctors would be limited to in those cases would be $1 million.

The proposed exceptions to the cap include: brain damage, paralysis affecting one side of the body, paraplegia or quadraplegia, death of a parent, spouse or child, total blindness, loss of a limb, including a foot or hand, permanent loss or damage to a reproductive organ resulting in sterility, gross malpractice and cases where the court determines "by clear and convincing evidence" that an award for pain and suffering above $350,000 is justified.

"The greatest concern I had was exceeding my $1 million insurance limit, but now I won't likely have to file for bankruptcy or lose my house," Jameson said. "The $350,000 cap is not what we wanted but I think it will be reasonable and I think I will continue to practice in Las Vegas.

"It's like the movie, 'Waiting to Exhale.' I feel I can exhale for the first time in six months."

Also breathing easier is Dr. Michael Daubs, president of the Nevada Orthopedic Society and an orthopedic surgeon at the UMC trauma center. He was one of the orthopedic surgeons whose resignations forced the trauma center to close on July 3 after he and other surgeons argued that they could no longer afford to treat the high-risk patients. The center reopened on July 13 when UMC's $50,000 liability cap was extended to Daubs and other trauma surgeons on a temporary basis.

"There are still some issues as far as the exact language of the trauma center is concerned but that can be amended to make sure the trauma center stays open," Daubs said. "We think the bill will give us the stability in insurance rates that we want.

"The overall bill is definitely an improvement over what we have now and it gives us further protection. Obviously, we were going for California's MICRA (Medical Injury Compensation Reform Act). I would be doing cartwheels if we had MICRA, Nothing is perfect but we're heading in the right direction."

In the Senate, every senator except Joe Neal, D-North Las Vegas, signed on as a co-sponsor of the legislation. Neal said he had a few questions.

In the Assembly, 41 of the 42 members co-sponsored the bill. Assemblyman Greg Brower, R-Reno, did not co-sponsor the bill. The Assembly started taking testimony this morning.

Despite the support of the governor and legislative leaders, lawmakers conceded that the reason testimony needs to still be taken is to give the public a chance to air their opinions on the proposals and for kinks to be worked out.

In addition to the cap and exceptions, the bill's other major components include:

There is also a chance other issues will be added, including a statewide system to collect and analyze medical errors.

Lawmakers approved spending $160,000 for the special session, expecting the session to last three days. Every day after Wednesday will cost an estimated $40,000.

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