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November 28, 2014

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Law may not prevent doctors’ exodus

WASHINGTON -- Nevada's new medical malpractice law likely will not meet its goal of keeping doctors in the state, a consumer watchdog report said.

The report released this week by Washington-based advocacy group Public Citizen aims to debunk the theory that the malpractice "crisis" nationwide -- skyrocketing insurance rates doctors can't afford -- is driven by greedy lawyers and juries awarding bigger payouts.

Insurance rate increases are more often caused by doctor errors and unsafe practices, coupled with insurance market factors and bad money management by the insurance companies, the report said.

To illustrate its point the report highlighted Nevada as one of five state case studies, along with Florida, Pennsylvania, Mississippi and West Virginia.

The report argues that doctors share blame in the malpractice crisis by saying that the crisis should be measured not by the rising insurance rates paid by doctors, but by the cost of malpractice to consumers. It cites statistics compiled by the Washington-based Institute of Medicine:

Insurance companies, too, share blame, the report said. A single corporation, St. Paul Companies, Inc., triggered a crisis in four states -- Nevada, Mississippi, Pennsylvania and West Virginia -- when it decided to pull out of the market in those states in 2001, the report said.

"That decision had more to do with St. Paul's reckless cash flow policies than it did with malpractice claims or jury awards," the report said. The company insured about 40 percent of Nevada doctors.

St. Paul's has denied that and said that it wasn't making money in the states.

The report said Nevada doctors pressured the Legislature, meeting in emergency session last summer, to cap insurance awards at $350,000 for non-economic damages, which it did.

But the law is not likely to halt an exodus of Nevada doctors, the report said. Jury award caps are not an answer in the long-term, Public Citizen legislative counsel Jackson Williams said.

"Caps do not lead to lower premiums, and in many cases actually lead to high premiums," he said in an interview.

It's true that insurance rates continue to rise in the Silver State. Nevada officials, including Gov. Kenny Guinn, have said the law needs a few years to work.

"The governor believes in this law and that it will work," Guinn spokesman Greg Bortolin said. "The law isn't even four months old."

The report's assertion that the law would ultimately fail to keep doctors in the state was completely unfair, said Ikram Khan, a Las Vegas surgeon who led an effort to urge the Nevada Legislature to cap jury awards. Khan said insurance companies are waiting for the Nevada law to be tested in court before they lower doctor premiums.

"(The law) was a major, major step in the right direction," said Khan, who was a liaison to Gov. Kenny Guinn during contentious debate about the issue during an emergency session of the Nevada Legislature last summer.

The report's hypothesis that lawyers aren't to blame is flat wrong when applied to Nevada, several doctors said. In Nevada, statistics prove that jury awards and settlements, often in frivolous cases, are getting higher, Khan said.

"There's no question about it," Khan said. "It's statistically proven."

The Public Citizen report is "pure BS," said John Nowins, president of the Clark County OB/GYN Society. Patients are suing doctors far more often and making "fat-cat lawyers" rich, Nowins said.

"We have doctors who are being sued for stretch marks," Nowins said. "We have people suing because they don't like their scars. Doctors spend a lot of time worrying about lawsuits. They don't have time to practice medicine. The real losers in this are the patients." Nowins is less optimistic than Khan about the ultimate success of Assembly Bill 1. Insurance rates, especially for OB/GYNs, are still going up and driving doctors out. Rates for OB/GYNs will increase between 25 and 90 percent this year, Nowins said.

"There was a lot of hope when AB 1 passed," Nowins said. "But frankly, right now, I don't see how it's going to work. If they waited years to find out what happened with AB 1, then obstetricians would be paying $200,000 to $250,000 in insurance, just to do their job in Clark County -- that's if anybody's left."

Guinn spokesman Bortolin added that doctors who want insurance can get it in the state-backed Medical Liability Association of Nevada insurance plan, an initiative by Guinn last year. About 550 doctors are enrolled in the plan, Bortolin said.

Bortolin said Guinn would be watching closely as the Nevada Legislature is forced to reopen its debate on medical malpractice in this year's session. Lawmakers must act on a petition signed by more than 77,000 Nevadans demanding that the $350,000 cap on pain and suffering awards be firm, without exceptions that currently exist.

-- The Public Citizen report also said that states need to do a better job of policing bad doctors, especially doctors who repeatedly are the targets of malpractice charges and go undisciplined. Public Citizen said 32.4 percent of Nevada malpractice cases involved doctors who had lost or settled at least two malpractice cases already. That's above the national average of 29.7 percent.

"An opportunity exists in Nevada to reduce medical liability payments through better policing of the state's worst doctors," the report said.

The report, "Medical Misdiagnosis: Challenging the Malpractice Claims of the Doctors' Lobby," is available online at: www.citizen.org.

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