State’s doctors declare victory

Wednesday, Nov. 3, 2004 | 11:01 a.m.

Nevada physicians scored a major victory Tuesday when voters overwhelmingly approved statewide ballot Question 3, placing tighter limits on the amount of money an injured patient can collect in damages for pain and suffering from medical malpractice.

The victory was made sweeter by the resounding defeat of two other statewide ballot initiatives backed by plaintiffs' attorneys, Questions 4 and 5, that could have allowed injured patients to receive unlimited damages for pain and suffering.

"This is a definite win for the physicians of Nevada and for the people of Nevada," Dr. John Nowins, president of the Clark County OB/GYN Society, said. "The people put their trust in the physicians and voted with their hearts. This will stabilize health care in a big way.

"We hope this effort will be duplicated in other crisis states across the country."

But Las Vegas attorney Gerald Gillock, president of the Nevada Trial Lawyers Association, predicted that constitutional challenges to Question 3 would be filed in Nevada courts within a year. Gillock said the measure deprives injured patients of their constitutional rights by placing absolute limits with no exceptions on the amount of damages they can recover for pain and suffering.

"It is unconstitutional and I think it will cost Nevada taxpayers millions of dollars because it will prevent the state from getting fully reimbursed in cases involving indigent patients," Gillock said. "There will be constitutional challenges on behalf of patients."

Physicians hope Question 3, the "Keep Our Doctors in Nevada" initiative approved by a margin of 465,321 votes to 318,189 votes will help lower their medical malpractice insurance rates by making it easier for insurers to predict the financial outcome of malpractice lawsuits.

"We're going to present the facts to the insurance companies," Nowins said. "It appears that we now have a solid tort reform platform in Nevada and the insurance companies now need to do their part and give physicians a break on their premiums."

By lowering their malpractice insurance costs, Nevada physicians in high-risk specialties such as obstetrics/gynecology and surgery, believe it will be easier for them to stay in business.

The vote means that a 2002 law crafted in a special session of the Nevada Legislature will now be amended. That law established a cap on damages for pain and suffering of $350,000, with exceptions for gross negligence and for special circumstances as determined by the court.

By approving Question 3, voters have removed the exceptions from the $350,000 cap. The cap also will be applied only once per case, rather than multiplied by the number of plaintiffs and defendants in a case, as was provided under the 2002 law.

The new law will also mean the following:

A health care professional who has been sued for malpractice will be liable for both economic damages -- such as for medical bills and past and future lost wages -- and damages for pain and suffering at no more than his or her percentage of fault for the malpractice. Under old Nevada law, doctors could be held liable for a percentage of economic damages exceeding their percentage of fault for the malpractice if other defendants were unable to pay their share of the judgment or settlement.

The fees that can now be collected by plaintiffs' attorneys will be limited depending on the size of the judgment or settlement. Under the old law, there was no limit on attorneys' fees.

In cases where an injury is not immediately apparent, the injured patient has one year to file a medical malpractice lawsuit from the time he or she should have known about the injury. Under the 2002 law the time limit was two years.

It is now possible for defendants as well as plaintiffs, in cases where the award is at least $50,000, to request that the payments be made periodically rather than in a lump sum.

Defendants will now be able to inform juries about payments that have already been made to the plaintiffs.

Plaintiffs' lawyers hoped to counter the doctors' initiative with Questions 4 and 5, a pair of proposed amendments to the Nevada Constitution that would also have had to pass in the November 2006 general election before taking effect.

But both were defeated soundly. Question 4 was voted down 513,252 to 273,051 while Question 5 was rejected 494,598 to 292,548.

Jim Denton, spokesman for Nevadans Against Fraud and Higher Insurance Costs, a group of insurers opposed to Questions 4 and 5, said he was not surprised that those measures were defeated.

"At the end of the day the voters saw Questions 4 and 5 for what they were," Denton said. "They saw that Questions 4 and 5 were disingenuous and represented special interests, and they didn't want to amend the Nevada Constitution accordingly."

But Gail Tuzzolo, campaign manager for People for a Better Nevada, which sponsored the defeated ballot measures, said her group intends to put these measures before voters again in 2006.

"We were outspent six or seven to one by the insurance industry," Tuzzolo said. "The voters were duped."

Question 4, "The Insurance Rate Reduction and Reform Act," involved two issues rolled into one initiative.

One would have eliminated any caps on damages for pain and suffering for medical malpractice that was in effect as of Dec. 1, 2006 unless insurers lowered their malpractice rates by at least 10 percent in the first year the measure took effect. So unless insurers lowered their rates, the effect of this initiative would have been to cancel out the portion of the doctors' initiative that dealt with caps on damages for pain and suffering.

The other major aspect of Question 4 would have rolled back automobile, homeowner and business casualty insurance rates to Dec. 1, 2005, levels, assuming the measure would have passed again in 2006. Those insurance rates then would have been lowered by 20 percent, with an additional 20 percent discount for good drivers.

Supporters of Question 4 vowed that no insurer would be prevented from making a fair return. But insurers argued that this provision would have been an unconstitutional restriction on their businesses.

The companion Question 5, the "Stop Frivolous Lawsuits and Protect Your Legal Rights Act" also backed by plaintiffs' attorneys, was designed in part to make it easier for judges to determine frivolous lawsuits. It would have forced lawyers who filed frivolous lawsuits to pay the attorneys' fees and court costs of the aggrieved party.

But it also would have voided any changes in state law between Jan. 1, 2004, and Dec. 1, 2006, that decreased the amount of damages a plaintiff could collect as the result of the wrongful or negligent conduct of others in cases involving medical malpractice and construction defects.

It also would have allowed the Legislature to repeal any laws that limited damage awards or pass laws to increase the limits.

The lawyers argued that this measure would have saved insurers money by eliminating frivolous lawsuits while preserving an individual's right to file litigation. But insurers and other businesses said the measure would have done nothing to eliminate frivolous lawsuits and also would have preserved the attorneys' ability to charge unlimited legal fees.

Medical malpractice insurance in Nevada began to skyrocket by as much as 300 percent for some physicians after St. Paul Cos., the state's largest malpractice insurer, abruptly pulled out of the market in late 2001.

As insurers began leaving the state and doctors saw their rates go up, many physicians complained that they could no longer stay in business in Nevada. Physicians blamed their plight on high jury awards in malpractice cases and the high volume of cases that were filed.

Plaintiffs' lawyers, arguing that the impact on Nevada health care was overblown, said the real culprits were insurance companies that were trying to compensate for sluggish investment returns in bonds and stocks. The lawyers also blamed insurers for fighting cases before juries that could have been settled for much less money out of court.

The battle pitting doctors against lawyers was supposed to have come to a resolution in 2002, when the Legislature met in special session in an attempt to forge a compromise. But both sides came away unhappy -- the doctors have not seen their malpractice insurance rates go down and plaintiffs' lawyers say any limits on damage awards place unconstitutional restrictions on their clients' rights.

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