Deadlines set on malpractice cases

Molly Ball

Thursday, Feb. 3, 2005 | 11:06 a.m.

Faced with a glut of medical malpractice lawsuits, the county court on Wednesday began a new initiative to process the cases by setting firm deadlines to get them resolved.

Three District Court judges heard from attorneys on both sides of about 180 lawsuits on Wednesday, giving them trial dates that the judges said were both realistic and ironclad. The judges hope to get through the rest of the more than 300 cases today.

"There are far too many medical malpractice cases currently set for trial in the system," District Judge Nancy Saitta told the roomful of about 60 lawyers on Wednesday morning as she opened the session to address what she called a "medical malpractice tsunami."

The point was to prevent a pileup, Saitta said.

Previously, each of the 18 judges who hear such cases did his or her own scheduling. That created situations where one lawyer was supposed to be in three or four different courtrooms at once, forcing some scheduled trials to be postponed and wasting judges' time with the resulting gaps in their schedules.

And the cases' parties -- the health care providers and the patients and their families suing them -- had to wait and wait for their day in court.

"It's very harmful to both sides for these cases to drag out," District Court Chief Judge Kathy Hardcastle said in an interview. "It's very traumatic to be sued, and it's very traumatic to be injured and wait years for resolution."

The firm trial dates don't mean every case will go to trial. More commonly, the trial setting creates a deadline for the settlement talks that ultimately resolve the great majority of cases.

"A trial is just one way of resolving a case," Hardcastle said. More than 90 percent of the time, malpractice cases are resolved through mediation, arbitration or dismissal by the judge.

The medical malpractice caseload has been cited as one of the biggest problems for the overburdened district court, which is requesting seven new judge positions from the Legislature to alleviate caseloads that are about 75 percent above the national average.

Adding a new judge costs about $1.3 million, including the expenditures necessary for staff and support, according to the court's administrators. The state Supreme Court is also asking for an extra $1.2 million for more part-time district judges.

There are many factors in the accumulation of malpractice cases. Generally, lawsuits are on the rise in Clark County, with an 11 percent increase in civil filings in 2004 compared with 2005. Court officials do not have an explanation for the rise, which was more than they expected due to growth alone.

Malpractice cases have skyrocketed since 2002, when a panel that screened such cases and ruled on whether they had merit was eliminated. Critics charged that the screening panel was ineffective, but the number of lawsuits filed more than doubled in the following year.

The county Medical Society and some lawmakers are seeking to restore the panel in the coming legislative session and to give it more "teeth" to combat what doctors claim is a surge of frivolous lawsuits.

Other legislative actions have created traffic jams in the courts. Under Nevada law, all civil lawsuits must be resolved in five years or be automatically dismissed. But starting in October 2003, the Legislature created a special time limit of three years for medical malpractice, although dismissal is not automatic if that deadline is not met.

That means all cases filed in 2001 and late 2003 must be resolved by 2006. And in October 2006, the cut-off will be reduced to two years.

Yet to be seen is what effect last year's successful Question 3 will have on the caseload. That ballot initiative capped non-economic damages in malpractice suits at $350,000 in an attempt to lower doctors' insurance rates.

Plaintiff's attorneys say the new rule makes it harder to bring malpractice lawsuits, but may send more of the cases to trial because insurance companies have less to lose by refusing to settle.

Hardcastle, Saitta and District Judge Betsy Gonzalez worked with other judges and their clerks to create the new medical malpractice system, which allows them to schedule trials in the courts of all 18 of the judges that hear such cases.

Most of the time, the District Court judges operate relatively independent fiefdoms. But they agreed that coordination was necessary to manage the malpractice logjam, Hardcastle said.

"This is the first time the in history of the court that we've done this type of thing," the judge said. "We got permission from the other judges to set trials on their stacks (schedules)."

The judges also require both sides to fill out a "case plan," which sets deadlines for finding evidence, interviewing witnesses and other milestones.

The three-judge panel expects to conduct its second scheduling session in August or September and then repeat the process annually.

The arrangement is similar to the court's special arrangement for construction defect lawsuits, which has been used as a model nationwide. Three district judges -- Saitta, Michael Cherry and Allan Earl -- annually status-check all of the cases, in which faulty construction is blamed for problems with buildings.

According to the court, the construction-defect system has halved the average time such lawsuits take to resolve.

The difference between that court and the new malpractice panel is that those same three judges hear all the construction-defect trials, whereas the malpractice panel assigns cases to all the district judges who hear civil cases. That's because a construction defect trial can last up to six months, while the typical malpractice trial takes one to three weeks.

The construction defect judges said it took a couple of go-rounds for lawyers to realize they were serious about the scheduling deadlines they imposed. That was clearly the case with the new medical malpractice panel too, as attorneys gave it a mixed reception.

Plaintiffs' lawyer Breen Arntz said he was skeptical. "If this is different, if it actually works, then I support it," he said.

Attorney Dave Mortensen, who defends health-care providers, was more generous. "I'm hopeful," he said. "Right now I have six cases a month, and probably none of them are going to go" because of scheduling.

"Now, they'll either get settled or tried," he added.

Judge Gonzalez said she was confident the lawyers would be convinced. "We have to show them that the commitment we've been given by the judges is there," she said.