Poll shows support for contradictory measures

Tuesday, Oct. 5, 2004 | 2:55 a.m.

Most Nevadans, if given a choice, favor limits on damages for pain and suffering in medical malpractice lawsuits.

Likely Nevada voters also strongly back two somewhat contradictory statewide ballot measures -- one that would place more restrictions on existing caps for pain and suffering damages, and another that would remove the caps altogether if insurance companies don't reduce malpractice insurance rates for doctors.

That's what is shown in a statewide Las Vegas Sun/Channel 8 Eyewitness News/KNPR Nevada Public Radio poll of 600 very likely voters. The poll was conducted Sept. 20 through Sept. 28 by the Washington-based polling firm Belden Russonello & Stewart.

Question 3, known as the Keep Our Doctors in Nevada initiative, is favored by 67 percent of the likely voters and opposed by only 27 percent, with a margin of error of 4 percentage points. If Question 3 passes in the November general election, it would amend the state constitution and take effect immediately.

That initiative would limit attorneys' fees in medical malpractice lawsuits and cap malpractice damages for pain and suffering at $350,000 per case. Existing state law -- which established the $350,000 cap in 2002 to encourage doctors to stay in Nevada -- provides exceptions to the cap in cases of gross negligence or for exceptional circumstances as determined by the court. The existing cap also applies separately to all plaintiffs and all defendants in each case.

Question 4, known as the Insurance Rate Reduction and Reform Act, is favored by a margin of 61-29. This initiative also would amend the state constitution but must additionally be approved in the November 2006 general election to become law.

This initiative would roll back casualty insurance rates for drivers and homeowners to Dec. 1, 2005, levels and then reduce them by an additional 20 percent. In conflict with Question 3, it would also eliminate caps on malpractice damages for pain and suffering unless insurance companies show that they have lowered malpractice insurance rates for doctors as a result of the 2002 law. So far, insurance rates for doctors have not been reduced.

This sets up the possibility that if Question 3 is approved this November, it may be negated if Question 4 also passes this election and in 2006.

The poll found that there is broad support for both ballot questions regardless of gender, age, party affiliation, ideology and locale.

Question 3 drew its strongest support from people who identified themselves as Republicans and backers of President Bush, who has made tort reform a priority of his re-election campaign.

Question 4 received its heaviest support from likely voters aged 18 to 39 -- younger people in general pay higher than average automobile insurance rates -- and from backers of Democratic presidential challenger John Kerry, a Massachusetts senator.

But no demographic group that was polled opposes either ballot measure.

"It's not terribly surprising, given the number of ballot issues voters will be faced with in Nevada as well as the complexity of those issues," Kate Stewart, a partner in the polling firm, said. "They may not have been focusing specifically on what each of these measures would do.

"They may not have understood at first that the two questions conflict with each other."

When the poll also asked likely voters for their opinion on medical malpractice damages separate from the two ballot questions, 40 percent indicated they strongly believed there should be limits on damages and 21 percent said they somewhat backed limits. Only 18 percent were strongly opposed to limits and 15 percent were somewhat opposed.

"That shows that there is strong support for limits on damages in Nevada, not withstanding the fact that people may cast conflicting votes on these measures," Stewart said. "On the insurance rate reduction question, people are most likely focusing on cutting their insurance rates."

Ryan Erwin, spokesman for Keep Our Doctors in Nevada, said he was not surprised by the poll results. That's because the doctors' concerns about medical malpractice insurance costs and the ability of physicians to stay in business have been in the news for the past three years.

"People understand that there is a health care crisis when they aren't able to get a doctor to deliver their baby or they're having to leave the state for at-risk services," Erwin said. "In order to save the health care system you have to cap damages at some level and Nevadans are willing to do that.

"People understand that this will make access to doctors easier. The trial lawyers realize they can't win on capping damages so what they're hoping to do is to confuse voters."

Trial lawyers oppose Question 3 because they believe caps on damages with no exceptions are unconstitutional. They support Question 4 and believe doctors should too because it would force insurers to reduce their medical malpractice premiums.

So said Las Vegas attorney Gerald Gillock, president-elect of the Nevada Trial Lawyers Association.

Gillock said Question 4 would not be in conflict with Question 3 "if insurance companies weren't lying to the people of Nevada." Gillock and other lawyers have maintained that insurance companies broke a vow to lower malpractice premiums if caps on damages were instituted by the state but haven't done so since the 2002 law went into effect.

"The only way the caps would be removed is if insurers don't lower their insurance rates," Gillock said of Question 4. "I can't imagine why any doctor would oppose Question 4. I can't imagine any Nevadan not tied to the insurance industry being opposed to Question 4."

Gail Tuzzolo, campaign manager for People for a Better Nevada, the sponsor of Question 4, said she was not surprised at the broad support for that initiative.

"It's clear that Nevadans want insurance reform and they want lower insurance rates," Tuzzolo said. "They believe insurance companies should be held accountable."

But Jim Denton, spokesman for Nevadans Against Fraud and Higher Insurance Costs, a coalition of insurers and other businesses opposed to Question 4, said that the Nevada Supreme Court has already ruled that insurance rate rollbacks are unconstitutional because they hamper the ability of insurers to get a fair rate of return on their business activities. But if Question 4 is enforced, he predicted it would drive insurance companies out of the state.

Denton said insurance companies support caps on damages for pain and suffering because it makes it easier for insurers to predict how much they will have to pay to cover lawsuits. Predictability would help lower insurance rates, he said.

"People don't understand what Question 4 would do," Denton said. "The real intent is to dismantle the medical malpractice legislation. It's a game that the lawyers are playing."