Lawmakers debate medical negligence bill

By Cara McCoy, Cy Ryan

Published Monday, April 6, 2009 | 9:39 a.m.

Updated Monday, April 6, 2009 | 2:06 p.m.

No doctors accused of being involved in the hepatitis C outbreak in Clark County have had their licenses revoked, and that’s one reason to lift a limit on medical malpractice judgments, a lawyer says.

The licenses of two doctors have been suspended, says Bill Bradley, a lawyer and leader in a drive to change the law to take a $350,000 cap off malpractice awards for pain and suffering. Several people contracted hepatitis C and 50,000 patients of the two now-closed clinics were notified in 2008 they may have been exposed.

Bradley led a parade of witnesses Monday who told stories -- either first-hand accounts or recounting stories of family members -- of being the victims of malpractice by doctors or hospitals.

But doctors and insurance representatives told the Assembly Judiciary Committee that passage of Assembly Bill 495 would drive premiums up by 50 to 65 percent for physicians and physicians will leave Nevada. In Las Vegas, about 200 health care workers and their supporters gathered Monday outside the Grant Sawyer Building in Las Vegas to rally against the bill.

Dr. Rudy Manthei said the Legislature should not punish all doctors for the actions of a few.

“The bad physicians should be dealt with by the medical board,” he said, referring to the Board of Medical Examiners.

Hearing rooms in Carson City and Las Vegas were packed with supporters and opponents of the bill. The committee did not make a decision but must vote before Friday.

Angela Hopper, a 27-year-old mother of two, said after surgery she has been confined to a wheelchair and isn't able to participate in activities with her children, she said.

“It sucks,” she said “Grossly negligent doctors are not held accountable.”

Megan Gasper, a 33-year-old mother of two in Las Vegas, contracted hepatitis and told the committee it robbed her of a year of her life. She lost 12 pounds and had to self-inject her medicine. She said the state should no longer protect the health care industry.

Their testimony was similar to other patients who said they were harmed by the malpractice of doctors.

Dr. Manthei said passage of the bill would create another medical insurance liability crisis, such as the one he said existed before the law was change in 2002 to put a cap on pain and suffering.

“We will return to the days when doctors couldn’t afford to practice, when high-risk specialists were forced to practice in other states and when Nevada seniors, parents and children simply couldn’t get the care they needed,” Dr. Manthei said.

Robert Byrd, chairman of the Independent Doctors Insurance Exchange that covers about 15 percent of the physicians in Nevada, said there is a ceiling on what a doctor can pay. “Tort reform is working,” he testified.

Dr. James Swift, medical director of Sunrise Children’s Hospital in Las Vegas, said his malpractice insurance went to $75,000 during the malpractice crisis. But it has since dropped to $55,000-$60,000 compared to the average rate paid in adjoining states of $18,000.

Louis Ling, executive director of the medical examiners board, said a disciplinary hearing is set for June 22 for Dr. Clifford Carrol, who is still allowed to practice. The examiners board secured court orders to stop Drs. Dipak Desai and Eladio Carrera from practicing. Desai owned the two clinics where the outbreaks occurred.

The examiners board has set a July 20 hearing for Dr. Carrera.

Health advocates rally in Las Vegas

In Las Vegas, local trial lawyers say the bill is necessary to protect patients from careless doctors; doctors say the bill will destabilize the medical community and force many of them to either leave the state or quit performing procedures that involve risk.

This morning, holding signs that read, "Defeat AB495," "Reforms are working," and "We love our doctors," physicians in white coats and nurses in scrubs made it clear which side of the issue they stood on. They broke out in the occasional chant of "Keep Our Doctors in Nevada," which also is the name of the group that organized the rally.

But Gerald Gillock, an attorney representing about 40 patients of the Endoscopy Center of Southern Nevada who were exposed to hepatitis C, said adding the two exceptions for gross negligence and increasing the time limit for bringing a malpractice case to trial, which AB495 does, "will help give the victims of egregious acts a remedy."

"What 'Keep Our Doctors in Nevada' is saying is ... let's protect a doctor from criminal acts and ... not provide any relief or any for a patient who has been maimed or devastated from the acts of a doctor," he said.

The wording in the bill in front of the committee applies only to gross negligence, he said.

"We are not lifting the cap on damages," he said. "The Assembly Bill as amended only affects cases where the doctor is found to be grossly negligent."

Dr. Hugh Bassewitz, an orthopedic surgeon at Desert Orthopedic Center, was one of many doctors who attended the morning rally in a white coat. He said the decrease in medical malpractice premiums for liability insurance has been a boon to health care in Clark County and that the bill, if passed, would leave patients scrambling to find a good doctor.

"We'd probably be the most liberal tort state in the nation if this bill passed," he said. "I'm worried about the state of health care in the county -- it's already an under-served area, if you look at statistics around the country.

"To me, it doesn't make any sense to make it harder to attract qualified physicians to come Southern Nevada if we have another barrier to entry."

There are about 430 medical malpractice cases related to the Endoscopy Center of Southern Nevada and its affiliates pending in the Eighth Judicial District Court, said court spokesman Michael Sommermeyer.

"Trial lawyers are trying to play on emotion to convince lawmakers to have a knee-jerk reaction to a one-time instance," said Ryan Erwin, spokesman for the group Keep Our Doctors in Nevada. "Everybody here has been outspoken against punishing bad doctors. We're fine with that, in fact, that's a good thing. The problem is, we shouldn't be punishing all doctors, and worse than that, we shouldn't be punishing all patients with this horrible, horrible bill," Erwin said.

He cited numbers that current legislation has saved Nevada residents more than $381 million annually, adding that insurance rates are dropping and doctors are staying in the state, he said.

Gillock said those conditions would remain true under the bill.

"The good doctors will still be protected -- their insurance will still remain the same and these isolated instances of gross negligence will be an instance that will not affect premiums and will not affect medical care in the state of Nevada," he said.

Nevada's current statute is based on a California law that has been in place since 1975, which imposed a $250,000 cap intended to reduce multi-million dollar verdicts against doctors.

Pearl Horger, a medical assistant, was one of the many members of obstetrician and gynecologist Dr. Paul Chao's staff holding signs at the rally. She said she worries that AB495 would cause qualified doctors -- like the one she works for, she said -- to leave the state. That would not only leave Nevada without access to health care; it would leave her without a job, she said.

"If they leave the state, what are women going to do when they need to have babies? There's not a whole lot of gynecologists here now," she said, adding that many -- including her doctor's former partner -- left before the current legislation was passed.

Dr. Jerry Jones, who has been practicing in Clark County for 23 years, said as the county's population has increased, the number of doctors hasn't increased proportionally. That disparity will only get worse if the legislation goes forward, he said.

"Doctors are going to stop doing high-risk procedures -- they're going to stop doing lifesaving procedures, if you will -- to take care of patients in risky situations where they (are more likely) to get sued," Jones said. He said that if the bill passes, specialty services will go away.

"I think physicians will start looking at those cases very carefully and saying, 'I'm sorry, I can't.'"