Wednesday, Sept. 22, 2004 | 11:03 a.m.
CARSON CITY -- Nevada doctors hailed a decision by the Nevada Supreme Court on Tuesday to allow an initiative on medical malpractice laws to remain on November's ballot.
The court unanimously rejected the petition of the Nevada Trial Lawyers Association to pull the medical malpractice initiative, Question 3, off the ballot. The court also refused the request to issue a contempt of court citation against Secretary of State Dean Heller.
"This is fantastic and people will now get a chance to vote," said Dr. Michael Fischer, president of the Nevada Medical Association.
He said doctors will conduct an aggressive campaign to inform the voters on why the medical malpractice law needs to be strengthened.
If it passes, Question 3 would change the medical malpractice law the state Legislature passed last year. The initiative would restrict the amount of pain-and-suffering damages that could be awarded in medical malpractice cases and limit the plaintiff's attorney fees.
Dr. John Martin of Las Vegas, one of several doctors who rallied at the Lloyd George Federal Building on Tuesday, said the initiative was aimed at bringing down medical malpractice insurance rates, which have skyrocketed in the last few years.
Doctors say the law would help keep premiums in check by helping insurance companies estimate their costs.
"I don't think we're against malpractice," he said. "If a doctor does something heinous to a patient, something should be done."
Heller said he was happy with the decision and "common sense" has prevailed. He said it turned out to be a good thing that the trial lawyers filed their petition to sanction him and kick the medical malpractice issue off the ballot.
"It showed how out of line and ridiculous the lawyers were," Heller said.
Jim Crockett, a Las Vegas attorney, said the decision of the Supreme Court on Tuesday doesn't say why the court denied the petition to remove the issue from the ballot.
He said the court didn't say whether the revised language in the explanation of the question satisfied the concerns of the court or if the court felt it was too short a time before the election.
The trial attorneys had successfully argued that the original ballot explanation was wrong and misleading. After the new explanation was finished, the attorneys said Heller didn't do what the court asked and and asked for the initiative to be pulled.
The Supreme Court's two-sentence decision Tuesday was unanimous.
"Petitioners have filed a motion to hold the secretary (of state) in contempt and to direct him to strike Question 3. We deny the motion."
The order came after a hectic week involving the question. Last week, the Nevada Trial Lawyers Association asked the court to pull the measure, saying the explanation on the ballot was misleading and inaccurate. On Saturday the court ordered Heller to either pull the question off the ballot or rewrite the explanation.
The court's decision pointed out what the justices saw as problems with the explanation. Heller's staff and the attorney general's office worked over the weekend to rewrite the explanations and had a new draft by Monday morning. Heller said the trial lawyers were invited to work on the new draft but declined.
The trial lawyers sued Monday, saying Heller failed to follow the court order.
With the court's order, counties can now start having ballots printed.
Larry Lomax, Clark County's registrar of voters, said Tuesday night his staff would start preparing the 288 different versions of the ballot that will appear in Clark County.
He said they could start printing the ballots as early as today and start mailing ballots early next week.
The order came within two hours after about 100 doctors and medical staff held a rally in front of Supreme Court in Carson City.
Senior Deputy Attorney General Victoria Oldenburg filed a petition at noon asking the court to dismiss the petition by the trial attorneys to find Heller in contempt of court. She said Heller should be praised for reworking the explanation on the ballot on the malpractice question, rather than eliminating the issue from the ballot.
Nevada trial lawyers asked the court to sanction Heller for allegedly not following the orders of the Supreme Court on Saturday to either revise the ballot question or pull it off the ballot. Heller's staff worked 11 hours to revise the explanation on the ballot but the trial lawyers said the new explanation did not follow the guidelines outlined by the Supreme Court. The lawyers asked the question be stricken from the ballot.
Heller, in a statement Tuesday before the court issued its decision, said the "ultimate goal of the Nevada Trial Lawyers Association is not to make the explanation more clear, but to keep you from voting on the issue."
The decision by the court helps county clerks and registrars meet a Friday deadline to mail absentee ballots 40 days before the election to the military overseas and other voters.
Carson City Clerk Alan Glover said missing that deadline could spark a federal lawsuit. He has requests for about 1,100 ballots and they have not been printed yet.
Clark County is likely to miss that deadline by at least a few days. The county has requests for more than 28,000 mail-in ballots.
The deadline for requesting a ballot is Oct. 26. The deadline for returning the absentee ballots is 7 p.m. on election night. Heller has informed Gov. Kenny Guinn that an executive order may be required to allow military and overseas citizens the ability to vote via fax or overnight mail so they can get their ballot in on time.
Glover said there is a provision in Nevada law that allows voters to fax in their absentee ballots if they waive confidentiality. That has happened in the past in some unusual cases.
Glover also said that a federal court could be asked to allow the absentee ballots to be received and counted after the election deadline. He said that happened in a Pennsylvania case where the absentee ballots were counted after election day.
That could happen in a close election.
Glover says he may only be able to send out the sample ballots a few days before early voting starts.
Clark County started printing the ballots last weekend and had to destroy those. The cost of replacing the ballots has been estimated at $500,000. Heller said he would "not be surprised" if Clark County filed a claim with the state for reimbursement, and said the county "could make a reasonable case."
Lomax said the office is running "at least a week late."
Clark County Manager Thom Reilly briefed the county commission about the problems Tuesday.
Reilly told the commission that the cash-strapped county at least has a shot at getting its money back from the now-destroyed first ballot.
That is a decision that the commission can mull over at leisure, he said.
"We want to concentrate on getting the ballots out and deal with that later," Reilly said.
Doctors rallied Tuesday at the federal courthouse in Las Vegas and at the Supreme Court building in Carson City.
At the protest in front of the Supreme Court, Dr. Jack Davis of Carson City said the physicians got 77,000 signatures on a petition to revise the medical malpractice laws. "We went to the people. They (the people) want to vote on it. To kick it off the ballot would be outrageous."
About 50 doctors and health care workers rallied just after noon Tuesday in front of the federal courthouse in Las Vegas to say the trial lawyers should stop fighting the ballot initiative in court.
Martin, an OB/GYN who grew up in Las Vegas and has practiced here for eight years, said his malpractice insurance has jumped from $46,000 a year three years ago to $83,000 a year now -- despite a discount he receives because he has never been sued.
His insurance didn't go down after the Legislature put caps on noneconomic damages in 2002 because there are still too many loopholes and insurance companies can't plan for how much they might have to expend in lawsuits, he claimed.
Martin said doctors don't want caps on all injuries -- just noneconomic.
Dr. Jerry Jones, another OB/GYN, also said he has no lawsuits in his 16 years of practice, yet his insurance went from $32,000 three years ago to almost $90,000 a year.
About 77,000 people signed the petition to put the initiative on the ballot, Jones said.
"The voters have a right to go to the polls and vote for or against Question 3," he said.
Radiologist Steven Davis is part of a growing group of doctors that hopes to hire a few radiologists in the coming years. But he said doctors regard Nevada as having a "hostile" legal climate toward doctors.
"It's been really hard for our group to recruit qualified candidates," he said.
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