Monday, Sept. 20, 2004 | 11:02 a.m.
CARSON CITY -- After a highly critical decision from the Nevada Supreme Court on Saturday, the secretary of state's office has rewritten the explanation on the ballot question on tightening medical malpractice laws.
The secretary of state's office and the attorney general's office worked 15 hours Saturday to clear up what the Supreme Court said were misleading statements explaining the question to the voters.
Secretary of state workers then e-mailed the newly written explanations to the county clerks so the ballots could be printed in time for absentee and early voting for the November election. The process of printing the ballots has started already in several counties.
The change in wording more than doubled the lengthy of the explanation that will be on the ballot, officials with the secretary of state's office said.
Senior Deputy Attorney General Vicki Oldenburg said Sunday she and officers of the secretary of state's office worked on the language to bring it in line with the ruling of the Supreme Court.
The court on Saturday told Secretary of State Dean Heller to either correct the explanation or take the issue off the ballot.
Heller could not be reached for comment Sunday. But Oldenburg said Heller did not want to pull the question off the ballot.
Bill Bradley, attorney for opponents of the ballot issue, said Sunday, "We were real concerned with the misrepresentation, and it's nice to have the explanation from an independent source."
He said it was unfortunate to have the supporters of the initiative petition misrepresent "the people's access to health care." He was referring to a statement that was going to be on the ballot that noted doctors are leaving the state in large numbers because of the rising medical malpractice insurance premiums.
"Use of scare tactics to get their initiative is wrong," Bradley said.
Larry Matheis, executive director of the Nevada State Medical Association, could not be reached for comment.
The new language will mean that some ballots will have to be reprinted. Clark County's absentee ballots were printed over the weekend.
Registrar of Voters Larry Lomax said that could cost the county at least $500,000, and he said the county will miss a deadline in state law that requires absentee ballots to reach their destinations at least 40 days before Election Day.
Lomax said he didn't know what the impact of missing that deadline would be.
There could be issues with other initiatives as well.
Claudia Briggs, spokeswoman for the Nevada State Education Association, said her group filed an appeal with the attorney general's office on Aug. 26 to amend the argument against Question 2, which would require Nevada to fund schools at or above the national average.
"We have yet to receive a response," she said.
Briggs said she did not know if the group would file a lawsuit to change the language.
Campaign consultant Gail Tuzzolo on Aug. 3 sent a letter to Heller suggesting changes in the language on Questions 4 and 5.
She suggested that the language on the condensation of Question 4 be changed. This is the question that calls for a 20 percent decrease in insurance rates and to eliminate the medical malpractice reforms enacted in 2002 unless the medical malpractice insurance rates were reduced by 10 percent.
Tuzzolo also asked that language on Question 5, which would fine lawyers who file frivolous lawsuits, be changed.
Renee Parker, chief deputy secretary of state, said this morning it made a change in Question 5 in defining vexatious lawsuits. She said there were some minor changes. She said the suggestions by Tuzzolo would have made the ballot "more one sided."
Tuzzolo said People for a Better Nevada, which is sponsoring Questions 4 and 5, also might file a lawsuit to challenge the arguments against their measures.
"I'm just waiting to hear from attorneys on what we might do," Tuzzolo said this morning. "We might go back to the Supreme Court."
Saturday's ruling had the court split. Three justices ruled in favor. Two wrote a concurring opinion with some dissent. Another wrote a concurring opinion with some dissent. One justice dissented.
Parker said the Supreme Court "clearly wanted to kill" the malpractice question. She said the court ordered only critical statements to be included in the explanation of the question.
"Now it (the explanation) is not neutral," she said Sunday.
The court said the initial explanations of the ballot question by the secretary "actually misinform the voters about that law that is subject to being changed and about what may occur if the initiative is approved."
Nevada doctors, who have seen their medical malpractice insurance rates rise dramatically, circulated an initiative petition to set limits on what may be collected in court judgments. The 2003 Legislature declined to adopt the plan so it went on the 2004 ballot.
Trial attorneys filed suit in the Supreme Court claiming the explanation of the ballot question by Heller carried misleading statements and that the arguments in favor of the ballot question were inaccurate.
The court noted there was a short time to prepare the ballots but said that Heller contributed to the "instant emergency." It said he had a duty to prepare a fair explanation by Aug. 1. The court, in the majority opinion signed by Justices Nancy Becker, Mark Gibbons and Michael Douglas, said he failed on both counts.
The decision said, "Allowing a defectively presented ballot question to proceed through the election process would serve no public or political good."
Justice Bill Maupin dissented, saying, "We should not, in any case, order that the measure be stricken from the ballot in the event the secretary is unable to amend the condensation and explanation in time for printing."
He said the explanations and arguments may be misleading but that "does not prevent the citizens of the state from reading the measure itself and obtaining information for and against it."
The law requires the secretary of state's office to write an explanation of the ballot.
In this case, the court said Heller failed to include all of the information. For instance, the court said the explanation states the initiative would limit judgments for noneconomic damages to $350,000 in medical malpractice cases. The law already does that but it presently allows a higher collection of damages in cases of gross negligence and exceptional circumstances "shown by clear and convincing evidence."
Heller, in the explanation, makes no mention that these exceptions would be eliminated in cases for injured patients to collect more than the $350,000.
The court said the explanation makes no mention that Medicaid, private insurance or workers' compensation would no longer be permitted to recover expenses paid on behalf of a victim of medical malpractice.
"One effect of this provision would be an increased burden on state Medicaid fund, which consists of taxpayers' dollars," said the court. Currently a victim of medical malpractice could be required to repay the medical expenses that insurance or the state picked up.
The Heller explanation, said the court, "does not indicate that abrogating joint and several liability for economic damages imposes the risk to the injured plaintiff, of a defendant's nonpayment." In the current law a medical malpractice judgment must be paid in full if it is entered against several parties. Even if one of the parties cannot pay, the others must pick up the balance.
The ballot question seeks to hold the doctor or the other negligent party responsible for paying only his or her share. If the measure passed, the doctor found to be 20 percent negligent would pay 20 percent of the damages.
Chief Justice Miriam Shearing and Justice Bob Rose concurred in part and dissented in part from the majority. They attacked the arguments on the ballot as written by the proponents. Those for and those against the ballot write arguments in support of their case.
Justice Deborah Agosti agreed that the explanations must be corrected but she disagreed with the majority that the secretary of state be given the option to pull the question from the ballot.
Taking the question off the ballot deprives the public "of their constitutional right to vote on the initiative in the upcoming election," Agosti said.
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