Editorial: Reforms may need revisions

Wednesday, April 5, 2006 | 7:19 a.m.

The medical malpractice tort reform measures that Nevada lawmakers passed in 2002 and that voters stiffened in 2004 may not be working as everyone had hoped.

According to a story in Tuesday's Las Vegas Sun, medical malpractice insurance premiums have not decreased since the reforms went into effect. And reforms that imposed compensation limits and placed additional burdens of proof on patients before cases may be filed could be deterring people from making legitimate malpractice claims.

In 2002, after Nevada's doctors threatened to leave the state unless malpractice awards were capped by law, Nevada legislators convened a special session in which they set a $350,000 cap on noneconomic damages in malpractice cases. The cap included exceptions for "gross" negligence and "exceptional circumstances," under which juries could have issued victims awards for pain and suffering that exceeded the cap.

In 2004 Nevada's voters - who feared their physicians would leave the state because of continued high insurance premiums - passed a measure that rescinded the exceptions and imposed the cap on all awards. The 2004 reforms also placed an extra burden of proof on plaintiffs that was intended to reduce frivolous lawsuits.

The number of lawsuits has dropped almost by half, the Sun reported. Nevada Board of Medical Examiners' records show that Clark County courts historically fielded about 330 malpractice suits annually until the reforms went into effect. Last year the number of cases filed dropped to 160.

But it is difficult to tell whether the drop in that number has anything to do with whether patients' complaints are frivolous. Before the reforms, lawyers took such cases on contingency, meaning that they would be paid only if their clients won. But the amount of work that is now required before filing means that attorneys are either imposing retainers that clients can't afford or simply aren't taking malpractice cases.

Legitimate lawsuits may be among those discarded, and malpractice insurance premiums have continued to rise. These reforms don't seem to be producing the intended outcome.