Poll: Voters still favor conflicting initiatives

Tuesday, Oct. 26, 2004 | 11:16 a.m.

Three Nevada ballot measures that deal with the damages for pain and suffering a victim of medical malpractice could receive are all leading in a new statewide poll.

This is despite the fact that they are inherently conflicting.

In addition, a majority of those polled support limits on damages for pain and suffering, even though two of the ballot questions they back could eliminate those caps.

A Las Vegas Sun/Channel 8 Eyewitness News/KNPR Nevada Public Radio poll of 600 very likely voters found that ballot Questions 3, 4 and 5 were favored by the majority of those polled. The poll, conducted by Washington-based polling firm Belden Russonello & Stewart from Oct. 16 through Oct. 19, had a margin of error of 4 percentage points.

"The poll results could be because of how confusing the ballot initiatives are," Kate Stewart, a partner in the polling firm, said. "The voters are confused and they are looking for clues such as, 'What does this stand for?' and 'What will be the impact on me personally?' "

Question 3, the "Keep Our Doctors in Nevada" initiative proposed by doctors, was favored by a margin of 59 percent to 30 percent. In a poll the firm took last month, the measure was ahead 67-27. Doctors hope the measure lowers their medical malpractice insurance rates to help them stay in business.

The doctors' initiative seeks to change a 2002 state law that established a $350,000 cap on damages that an injured person could receive for pain and suffering from medical malpractice, with exceptions to the cap for gross negligence and for special circumstances as determined by the court.

The 2002 law, crafted in a special legislative session, did not impact the amount of actual damages an injured plaintiff could collect for past and future medical bills and lost wages. Question 3 would not apply to actual damages. It would remove the exceptions to the cap on damages for pain and suffering and apply the cap to each case, rather than to each plaintiff and defendant, as is the case under the 2002 law.

"This is very consistent with what we're seeing," Ryan Erwin, spokesman for Keep Our Doctors in Nevada, said of the poll. "Even though there was a special session (of the 2002 Legislature) the problem was not fixed. Everybody is seeing the rising cost of health care in Nevada along with how hard it is to get specialty medical services. We think this is an important step toward finding a solution."

The latest poll found that Question 3's strongest support comes from people who are in the 40 to 59 age range (60-27), Republicans (67-23) and rural residents (69-24). It enjoys a big lead in Clark County (57-31) and is favored more by supporters of Republican President Bush (66-23) than by backers of Democratic presidential challenger John Kerry (52-35).

Question 4, "The Insurance Rate Reduction and Reform Act" proposed by plaintiffs' lawyers through a group called People for a Better Nevada, was also ahead in the latest poll by a margin of 59-27. Last month's Sun poll had this initiative ahead 61-29.

This initiative seeks to amend the Nevada Constitution, so it would have to pass next month and in the November 2006 general election before taking effect.

One part of this initiative would remove the caps on damages for pain and suffering from medical malpractice unless insurance companies agree in the first year the law takes effect to lower the malpractice insurance rates they charge doctors by 10 percent to justify the existing caps on damages.

Question 4 also aims to roll back automobile, homeowner and business casualty insurance to their rates as of Dec. 1, 2005 (assuming it passes next week and in 2006), and then lower those rates by 20 percent. Good drivers would receive an additional 20 percent discount.

But the Legislative Counsel Bureau, the Legislature's legal arm, has issued an opinion stating that it does not believe the automobile insurance rollback would occur because of the way the Nevada Insurance Division applies the law.

"What this poll is telling me is consistent with what we're finding at the doors we knock," Gail Tuzzolo, campaign manager for the sponsor of Questions 4 and 5, said. "Voters may not be sure what they're voting on because the well-funded insurance opposition has deceived voters about what this is about."

Support for this initiative cuts across gender, age, locale and party affiliation but is strongest among individuals aged 18 to 39 (71-17), Democrats (62-22) and rural residents (64-26).

The measure is leading in Clark County by a margin of 59 percent to 26 percent. It is also getting slightly more support among Kerry backers (60-22) than Bush supporters (56-33).

But Jim Denton, spokesman for Nevadans Against Fraud and Higher Insurance Costs, a group of insurance companies and other businesses that opposes Questions 4 and 5, said he believes the tide is turning against Question 4 and that it will be defeated. Insurance companies oppose Question 4 because they believe that rate rollbacks are unconstitutional and would prevent them from making a fair return.

"This has nothing to do with insurance rate rollbacks," Denton said. "It has to do with dismantling the medical malpractice reforms that were passed in 2002."

Question 5, the Stop Frivolous Lawsuits and Protect Your Legal Rights initiative, also proposed by plaintiffs' lawyers, had a 45-38 lead in the latest poll.

The initiative would void any changes in state law from Jan. 1, 2004, to Dec. 1, 2006, that would limit the amount of damages a plaintiff may recover as the result of the negligent or wrongful conduct of others.

It would also allow the Nevada Legislature to increase damages a plaintiff could receive as the result of the negligent or wrongful conduct or repeal any laws that limit damage awards. This initiative would apply to construction defect cases as well as to medical malpractice claims.

Question 5 also would require attorneys who file frivolous lawsuits to pay the attorneys' fees and court costs of the aggrieved party. Proponents say it would also embed the definition of a frivolous lawsuit in the state constitution to make it easier for judges to throw out cases that are meant solely to harass the opposing party or to seek financial gain unrelated to the merits of the lawsuit.

Like Question 4, this initiative would amend the Nevada Constitution if approved next month and in November 2006. Supporters say Question 5 would save insurance companies money by making it easier for judges to determine frivolous lawsuits while preserving the rights of plaintiffs to use the courts.

Tuzzolo said she thought support for Question 5, as reflected in the poll, showed a narrow lead because many people are concerned that it will be much harder for them to file lawsuits. She said she didn't think most people who file lawsuits would be impacted by this initiative.

"Most attorneys don't believe that they file frivolous lawsuits," Tuzzolo said.

But Denton predicted that Question 5 also would be defeated. Opponents have argued that the initiative would do nothing to stop frivolous lawsuits and would preserve the ability of plaintiffs' attorneys to make high legal fees.

"Any time you see a ballot question dip under 50 percent approval that ballot question has a problem," he said.

Support for Question 5 is stronger among men (49-36) than women (42-41), and stronger among Republicans (50-39) than Democrats (43-39).

The measure is winning among individuals aged 18 to 39 (48-39) and 40 to 59 (48-37) but losing narrowly among individuals aged 60 and older with 41 percent opposed and 39 percent in support.

There is also support for the measure in Clark County (46-37) and in rural Nevada (56-31) but it is losing by a wide margin in Washoe County, where it is opposed by 50 percent and supported by only 33 percent.

The doctors want a more restrictive cap on damages for pain and suffering because they believe that will help lower their medical malpractice insurance rates. The plaintiffs' lawyers say caps on damages are unfair to plaintiffs and place unconstitutional restrictions on juries. Insurance firms, which side with the doctors and want caps on damages, also say that a rollback of insurance rates is unconstitutional because it would prevent them from making a fair return.

When individuals were told that the state does not place limits on damage awards for medical bills and lost wages but can limit damages for pain and suffering, the majority of those polled said they favored limits on damages for pain and suffering by a margin of 60 percent to 28 percent.

Of those polled, 35 percent strongly favor limits, 25 percent somewhat favor limits, 15 percent strongly oppose limits and 13 percent somewhat oppose limits.

Among those who strongly favor limits, there is a higher percentage of men than women (38-31) and Republicans than Democrats (44-28). In Clark County, 34 percent strongly favor limits and 24 percent somewhat favor limits.

"The voters of Nevada believe that there should be limits on what people can recover for pain and suffering," pollster Stewart said. "The poll numbers are pretty straightforward."

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