Lawsuit filed to remove another petition

Kirsten Searer

Thursday, Aug. 19, 2004 | 11:15 a.m.

Yet another lawsuit has been filed over a petition scheduled to appear on the November ballot.

A group filed for a writ of mandamus from the Nevada Supreme Court on Wednesday, asking the court to immediately pull the Keep Our Doctors in Nevada petition from the ballot.

The initiative, which qualified for the ballot, would cap non-economic damages from medical malpractice suits at $350,000.

Opponents of the initiative argue that it violates a provision in the state constitution that requires initiatives that have an expenditure to raise revenue to cover the cost.

The writ petition argues that the initiative would so severely limit the amount of money that injured patients can receive that the state would have to step in to help pay for medicine, doctors visits, equipment and rehabilitation that is often covered by large settlements in catastrophic cases.

"The taxpayers are going to end up paying for the consequences of the medical malpractice," attorney Gerald Gillock said.

The writ petition also alleges that the petition erodes protections that allow multiple doctors as well as hospitals or clinics to share the burden of malpractice suits. That means that patients could have trouble collecting their settlements if one of the parties is underinsured, Gillock said.

The group behind the suit includes the Nevada chapter of the AFL-CIO, the National Organization for Women, the Progressive Leadership Alliance of Nevada and a few people who have won medical malpractice suits in court.

Scott Craigie, a consultant working with the Nevada State Medical Association, which is sponsoring Keep Our Doctors in Nevada, said that the initiative would actually save the state money, partly because it would curtail expensive lawsuits that drag through state courts.

Plus, he said, the state cannot keep up its growth if it loses doctors driven away by high malpractice insurance.

"Without these protections we know that the insurance costs for physicians and medical practices of all types, including health care facilities such as hospitals and treatment centers, will continue to increase," Craigie said.

"You have to be able to attract health care providers when you're the fastest growing state, fastest growing economy in America," he said.

The writ petition also alleges that the initiative contained "misleading" wording that could have confused voters who signed to put it on the ballot.

And it contends that Keep Our Doctors in Nevada violates several other constitutional provisions, including the rights of a trial by jury, due process, equal protection and separation of powers.

Craigie argues that similar bills exist in other states such as California, so the constitutional arguments probably won't hold in court.

"I know it not to be a problem in other states," he said. "In California, that law has been in place there for over a quarter century."

One of the plaintiffs challenging Keep Our Doctors in Nevada is Jason Phillips, guardian of Brittany Phillips, who suffered a stroke and permanent neurological damage after she was misdiagnosed for ear pain when she was 4 years old.

Another plaintiff is Jesse Ornelas, guardian of Howard Gabriel Watts, who suffered severe and permanent brain damage when he was born in May 1997, "due to the combined alleged negligence of multiple tortfeasors, including a Las Vegas 'birthing center' and two physicians," according to the suit.

Both families understand the expenses of a major medical error, Gillock said.

Regardless of the lawsuit's outcome, Craigie and others have said it's clear that the battle over Keep Our Doctors in Nevada, as well as two other initiatives that address insurance rates, will be expensive this election season.

"There is this tight battle going on now between health care industries in this state and trial lawyers," Craigie said. "The trial lawyers have made no secret of the fact that they have to kill these efforts in order to expand the lawsuit process in Nevada."

But Bob Fulkerson, executive director of the Progressive Leadership Alliance of Nevada, argues that Keep our Doctors in Nevada would hurt low-income families who cannot afford medical expenses not covered by lawsuits.

"We see this as very much disproportionately affecting low income people," he said. "Our state, through Medicaid, pays for that and it's already strapped for funding. This would make a bad situation worse."