Suit to keep malpractice question from ballot is rejected

Wednesday, Aug. 25, 2004 | 9:09 a.m.

CARSON CITY -- The Nevada Supreme Court has issued an opinion highly critical of a group that waited more than one year to sue to disqualify a medical malpractice petition from the ballot.

The court Tuesday dismissed the petition, filed by a group that included the Progressive Leadership Alliance of Nevada, the Nevada State AFL-CIO and local chapters of the National Organization for Women.

Larry Matheis, executive director of the Nevada State Medical Association, called the court's decision good news.

"It was not a well thought-out challenge," Matheis said of the effort to bar the "Keep Our Doctors in Nevada" ballot question.

The question seeks to limit the fees that could be paid a lawyer in a malpractice settlement or court award, permit doctors' attorneys to present evidence of other compensation the victims may get and provide for payments to be made, instead of lump sums.

In addition, under the initiative, an attorney would be limited to 40 percent of the first $50,000 recovered; one-third of the next $50,000; 25 percent of the next $500,000; and 15 percent of the amount in excess of $600,000.

The proposal also would eliminate joint and several liability in a medical malpractice suit. At present, a defendant may be responsible for only 10 percent of the malpractice. But if the other parties don't have any money, the individual could be hit with the full cost of any judgment.

Doctors, worried about the rising cost of medical malpractice insurance, started the petition in 2002 and gathered enough signatures to get the measure on the 2004 ballot. After the 2003 Legislature declined to approve the plan, the petition was placed on the ballot.

Bob Fulkerson, executive director of the Progressive Leadership Alliance, said he was disappointed that the court did not want to hear the arguments. But he added he was aware how "strapped for time" the court is.

The court, noting that the petition was placed on the ballot in 2003, said the opponents "presented no reason or excuse for why they waited more than a year" to file the challenge only two weeks before the general election ballots are scheduled to be printed.

The court, in a 6-1 decision, said the group, backed by trial attorneys, presented many complex arguments "which should not be evaluated in haste."

"Were we to entertain this petition on the merits, we would be forced to either rush our consideration of important issues or disrupt the election proceedings by delaying our decision beyond the deadlines already in place," the court said.

In explaining the delay, Fulkerson said it took several months to write the briefs.

Robert Peck, an attorney for the Center for Constitutional Litigation, a Washington, D.C., law firm, said there were "so many flaws" in the petition that it took time to gather the experts and the evidence to present to the court the many errors.

"It took longer than we expected," Peck said.

Peck said the secretary of state's office has not yet produced the language giving the pros and cons of the ballot question. He said that may be subject to a legal challenge.

The court said that if the malpractice initiative is passed by the voters, then a legal challenge can be brought. Fulkerson said his groups will wage a public education program to defeat the measure.

Justice Mark Gibbons dissented, saying he would have considered the merits of the petition.

Matheis said the petition had been presented to the Legislature and no one challenged its constitutionality. It was drafted in an effort to end the "liability crisis" in which insurance premiums skyrocketed.

He said California has enacted a similar law that puts restrictions on malpractice. He said the trial lawyers have placed two opposing measures on the election ballot for November.

One would repeal the $350,000 limit in the law that can be awarded victims of medical malpractice if malpractice insurance premiums have not been lowered by at least 10 percent. The other initiative would restrict the Legislature from enacting laws that would limit a victim's damages in a lawsuit involving negligent or wrongful acts.