AG’s office argues against lawsuit over ballot question

Friday, Sept. 17, 2004 | 9:24 a.m.

CARSON CITY -- The attorney general's office said Thursday opponents of a proposed law to shield doctors more in malpractice suits are launching "one last futile attempt" to keep the voters from deciding the issue in November.

Senior Deputy Attorney General Victoria T. Oldenburg asked the Nevada Supreme Court to reject a lawsuit that says the petition should be removed from the election ballot because its wording is not factual.

Four people, supported by Nevada trial lawyers, filed the lawsuit to sidetrack Question 3, which if approved would give more protection to doctors when they are sued for malpractice.

They objected to the statement in the arguments written for the ballot that physicians continue to leave Nevada at an alarming rate despite the 2002 law aimed at curing the medical malpractice problem.

Oldenburg, representing Nevada's chief election officer Secretary of State Dean Heller, said Heller reviewed the arguments both for and against the question and they "did not contain statements that he believed were libelous or factually inaccurate."

"The secretary is not in a position to weigh the credibility of the evidence presented, only that it is accurate. Nor should the secretary reject a statement that is merely opinion or argument," Oldenburg wrote.

Oldenburg said the suit, filed Tuesday, "is simply too late" for the Supreme Court to rule because the election ballots in Clark County have already gone to the printer for the absentee and early voting.

She also said the secretary of state's office followed all of the proper procedures in preparing the question for the ballot.

The four who filed the suit against the initiative petition were Kathleen Murphy Jones, Jeffrey W. Stempel, Sri Aizley and Richard Myers, all of Clark County. They say the explanation of Question 3 by the secretary of state's office does not fairly describe the initiative petition and its ramifications.

Oldenburg said opponents of the proposed law tried unsuccessfully in August to keep the initiative off the ballot. She said statements prepared by Heller to explain the question "accurately reflect definitions and provisions of the initiative, including those relative to professional negligence, damages, joint and several liability and the statute of limitations."

Heller appoints the committees to write the "for" and "against" arguments for the ballot questions.

According to the Web site of the state Board of Medical Examiners, there were 3,113 licensed physicians practicing in Nevada in 1999 and that rose to 3,546 in 2002, the latest year available. The board also said that in 1999 there were 800 licensed doctors who were in active status out of state. That number by 2002 rose to 991.

Tony Clark, executive director of the Nevada State Medical Examiners Board, said that since Jan. 1 this year, 41 physicians have notified the board they are leaving the state.

He said the current count of practicing doctors in Clark County is 2,489 and 932 in Washoe County. He said there are now more than 4,000 practicing physicians in the state.

The suit also objects to proponents' arguments on the ballot that the initiative would stop "double dipping" by informing juries if the injured party is receiving money from other sources. It also claims there are other misleading statements and that the ballot measure fails to identify any fiscal impact on the state.

Jones, one of the plaintiffs in the suit, was chairwoman of the committee that wrote the arguments against the initiative petition.

Oldenburg said, "As long as there was a factual basis to support the pro committees' argument and rebuttal, it was entirely reasonable for the secretary to accept the argument and rebuttal for placement on the 2004 general election ballot."