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Tuesday, March 31, 2009 | 2 a.m.
Dr. Dipak Desai, the majority owner of the Endoscopy Center of Southern Nevada, leaves a hearing at Las Vegas City Hall on March 3, 2008.
Sun Topics
Sun Archives
- Citing dangerous care, state board mulls suspension of Vegas surgeon (3-10-2009)
- Hepatitis outbreak spurs moves to toughen regulation (3-1-2009)
- Deadline spurs endoscopy lawsuits (2-28-2009)
- For malpractice info, you'll have to phone (3-9-2008)
- Officials: Hepatitis outbreak highlighted need for changes (2-4-2009)
- Doctor faces charges in usage of drugs (12-15-2004)
- Boards' failure to discipline could cost Nevadans (10-16-2003)
Sun Coverage
Ad aired to fight caps on medical malpractice
Personal injury lawyers still cringe when they recall 2004’s eye-catching television ads of doctors walking out of town along the highway, fleeing from high malpractice insurance costs.
A congressional study and a national consumer advocacy group found at the time that the health care industry had spent millions of dollars exaggerating the malpractice crisis in Nevada and elsewhere in the country. Doctors overall weren’t actually leaving Nevada at a high rate.
But the hard-hitting television campaign of five years ago, produced by influential Republican strategist Sig Rogich, helped persuade voters to overwhelmingly approve an industry-backed ballot initiative imposing a $350,000 cap on malpractice damages for pain and suffering. Advocates said the intent of the measure, patterned after 1975 tort law changes enacted in California that imposed a $250,000 cap, was to reduce multimillion-dollar verdicts against doctors, which would lower their insurance premiums and reduce health care costs for the public.
Health care leaders say the initiative has done that and more in Nevada. They commissioned a study that concluded the cap on noneconomic damages is saving roughly $381 million a year in medical costs. The study showed the cap also has stabilized the medical profession and improved access to health care here.
A new health care crisis surfaced in the wake of the ballot initiative, however — the life-threatening hepatitis C outbreak, which the lawyers blame on a drop in accountability of the medical profession created by the cap.
With no incentive to settle cases, “the doctors have a license to kill and maim now,” personal injury lawyer Robert Eglet said.
Today, Clark County’s court system is struggling to deal with massive malpractice litigation over the hepatitis scare, which occurred at endoscopy clinics run by Dipak Desai, a doctor who at one time was politically connected. Thousands of former patients of Desai’s clinics, telling horror story after horror story, are suing him over cost-cutting measures they allege endangered their lives.
The litigation has added to a lingering backlog of medical malpractice cases that this week prompted the Nevada Supreme Court to step in and try to resolve through a special “settlement marathon.”
Trial lawyers blame the backlog on the cap, which has allowed doctors and their insurance companies to avoid settlements and drag out the malpractice suits as long as possible.
But the hepatitis crisis has put the lawyers in a mood to fight and attracted the interest of the Nevada Legislature, which is considering a bill this session to eliminate the $350,000 cap. The measure also would increase the time limit for bringing a malpractice case to trial after it is filed. Instead of having two years, plaintiffs would have up to five years to get to trial.
AB495 was introduced only last week by the Assembly Judiciary Committee, but doctors have been hard at work lobbying lawmakers. And so have the trial lawyers, who were outmanned and outspent five years ago.
“It’s going to be a battle royal,” said Judiciary Chairman Bernie Anderson, D-Reno, who will hold a hearing on the bill Monday. The measure has to be voted out of the committee by April 10 if it’s to have any further legislative life, and Anderson wouldn’t rule out the possibility that the bill could end up including a retroactive provision allowing the endoscopy plaintiffs to pursue malpractice claims without the cap.
Passions are high on both sides, but this time the trial lawyers believe the political climate favors removing the cap.
“In light of the endoscopy scandal, the eyes of the voters have been opened,” said Reno attorney Bill Bradley, who lobbies for the Nevada Justice Association, the group formerly known as the Nevada Trial Lawyers Association. “The voters now realize that health care providers who violate known standards of safety should never be given the protection of laws that don’t hold them fully accountable.”
To Bradley and other personal injury attorneys such as Ed Bernstein, a lead plaintiff’s lawyer in the endoscopy litigation, this fight is not between lawyers and doctors, but rather between doctors and their insurance carriers and the patients who have been victims of negligent care.
“The only people willing to step up for the victims are the lawyers, who have seen the horrible pain caused by the health care industry,” Bradley said.
Bernstein added that the cap did not stop frivolous lawsuits against doctors, as the health care industry argued it would five years ago, but instead hurt the people who were injured the most by doctors.
“We have a lot of victims who are not being fairly compensated,” he said.
Had there been no cap on damages, lawyers and lawmakers say, it’s possible Desai and the other doctors at his now-closed Endoscopy Center of Southern Nevada would not have been so eager to reuse the syringes and vials that allegedly infected patients with hepatitis C.
“You’re not going to be pushing the envelope to save nickels and dimes,” Anderson says.
Gerald Gillock, another plaintiff’s lawyer in the endoscopy litigation, says removing the cap will also bring accountability to the insurance industry, which pays malpractice judgments against physicians.
“The insurance companies will have to go out and make sure the doctors meet appropriate standards of care,” he says. “They will have to do mandatory inspections.”
That might have helped prevent the tragedy of one of Gillock’s clients — a 25-year-old woman with two young children who went for surgery to straighten a curved spine a year ago, only to wind up paralyzed from the waist down.
“The doctor told her she would be out of the hospital and walking within two days, but she never walked again,” Gillock says. “And now the most money she can get is $350,000.”
Assemblywoman Sheila Leslie, D-Reno, brought to light plenty of horror stories last year when her interim health care committee held hearings on the endoscopy scandal.
“I heard loud and clear from the people of Las Vegas that this is a concern,” she says. “They were furious when some of the cozy relationships between the doctors came out.”
Some of the doctors who played a role in the endoscopy scandal had helped fund the expensive 2004 ballot initiative, Leslie notes.
In Desai’s case, it began with a $25,000 contribution in August 2004 to the political action committee Keep Our Doctors in Nevada, which wrote the ballot initiative and funded the high-profile television campaign, according to records on file with the secretary of state’s office.
Eglet, whose firm represents nearly 3,500 former patients suing Desai over the hepatitis scare, says it was well known within the legal and medical communities that Desai also persuaded other physicians to contribute to the ballot campaign.
In recent years, Desai has had a friendly relationship with Rudy Manthei, a well-known Las Vegas ophthalmologist who serves as Keep Our Doctors’ president.
Both Desai and Manthei were on the health care working group of Gov. Jim Gibbons’ transition team in 2006. Manthei headed the group. And in 2007, Desai and Manthei joined the board of directors of the new Bank of George, along with several other high-powered Las Vegans. Desai later left the board.
Last year, in the wake of the endoscopy scandal, Manthei bought one of Desai’s newer surgical centers.
Desai also has maintained a close relationship with Las Vegas surgeon S. Daniel McBride, who says he has been a board member of Keep Our Doctors since 2004.
State records list McBride and Desai, who maintained offices in the same building at 700 Shadow Lane, as original board members of Nevada Mutual Insurance Co., which incorporated in April 2002. The company provides liability coverage for doctors. Both men, however, left the board last year, following the endoscopy scandal. McBride was its chairman.
McBride, a member of the Nevada Medical Examiners Board, which was criticized last year for not moving swiftly to discipline Desai, acknowledged the endoscopy crisis has given the lawyers political fodder.
“This is what they’ve been waiting for to challenge the cap,” he says. “The publicity around the endoscopy center has revived their argument, but I don’t think it makes it more true.
“If this bill passes, it would absolutely destroy the progress that we’ve made in maintaining access and improving the quality of care in this state.”
State Sen. Barbara Cegavske, R-Las Vegas, who supports the health care industry, agrees.
“We’ll go right back to the trouble we had before the initiative, and we can’t do that,” she says.
Manthei insists the Desai case was isolated and not indicative of the entire medical profession here.
“If you penalize all of health care based on the actions of a few, you ultimately jeopardize access to health care,” Manthei says. “Why do you want to change something that is working?”
Its time to move the cap to 100 thousand. reducing the cap again would help contain medical costs.
Its all moot as when Obama's state run medical system arrives there can be no suits brought under the socialist system, lawyers become useless and can no longer cause escalating costs.
Let's see - the endoscopy docs, the docs who lied under oath, the valley eye center lasik docs, the doc and his wife who were just sentenced to jail for using fake botox, the docs who had to pay back medicare for fraud, the docs who abused the foreign doctors, and the list goes on. I would say that these are not the actions of a few, but a trend towards bad doctors and bad medicine. There is no quality of health care in this state.
McBride: "If this bill passes, it would absolutely destroy the progress that we've made in maintaining access and improving the quality of care in this state."
Wow, I wonder if this doctor even realized what he said. Improving the quality of care??? Ahh, yes, reusing syringes and vials, the epitome of "quality care."
The endoscopy clinic practice of re-using syringes occurred in large part BEFORE enactment of tort reform and damage caps. In other words, having liability for a high damage amount did nothing to disuade the GI doctors from that behavior.
All reversal of tort reform will do is hurt the 'little guys": docs that run small practices, who see a moderate number of patients, and take time with each patient. Because these doctors aren't running high-volume "mills", they won't make the income to be able to afford the higher malpractice rates.
Therefore, the only docs left in town at that point will be those that run patients through their clinics like cattle. Sure, they'll make mistakes at that rate of speed, and miss some diagnoses, but heck, the extra cash they get will allow them to get the expensive insurance that'll cover their butts anyway.
Be afraid, very afraid, of the unintended consequences of the trial lawyers' zeal to reverse these sensible reforms.
clydeperkins -- I do like the way you think.
Maybe I missed it, but nothing in this article said a word about how these attorneys usually get a percentage of the final award.
As long as the bona fide victims receive justice, I'm all for reform that actually works in a manner that's fair to all parties.
Of course the ambulance chasing attorneys want this change. The endoscopy fiasco causes the public to be outraged at the onset, but only a few people were actually hurt by this flub up. Let them collect their money. Why penalize the innocent health practicioners who have hurt no one?
It surprises me how stupid some people in ths country have become, how easily they are led - how and why would "innocent doctors" be penalized? When someone harms another, through negligence or malfeasance, they are dealt with by a jury that hears the evidence, and finds based upon the same.
As you can see by comparing the ratio of thoughtful responses to the very few idiots who took another chance to throw bombs at the people who are responsible for their liberty and safety: Lawyers.
Are you scoffing now, you layabout, fox-news watching, no-mind, conservative zombies?
Sure you are - you don't need lawyers to make products and processes the safest in the world - you can trust big business: they wont cut corners and sacrifice consumer safety to enhance their bottom line;
You don't need lawyers to keep the government from violating your privacy and your rights - the government would never go forward with a case against an innocent man, or sacrifice the rights and privacy of large numbers of people in the hopes of catching a very small number of potential crooks or terrorists;
And you don't need lawyers to protect you from medical malpractice - trust the insurance companies and the doctors to police themselves, and insurance rates will drop, and care will improve.
How foolish - I hope each of you gets what you deserve: yourself or a loved one heinously injured through doctor negligence.
the cap is not on actual damages, there is no cap on damages(measureable loss)-the cap is on the immeasurable damage called "pain and suffering".
Two examples will show what a subtle job of confusion is being foisted on the public by this article.
example one: I make 3 million dollars per year. I have a surgery, which through neglect causes me not to be able to return to work- I have a stroke.
I have a measureable damages, the loss my ability to perform my 500k per year job- no pain or suffering is needed, the loss is measurable and this loss is what will be paid + 350k for pain and suffering under the current cap. if I could work for another 10 years I would have measureable damages of 5 million + 350k.
example two: I am a drug addict who robs houses for a living. I have no documented income and do nothing for others. I develop an infection in my arm from shooting drug and go to the hospital, my arm can't be saved and I undergo an amputation. It is discovered I was given the wrong antibiotic for one day and I sue for malpractice and claim I had a great deal of pain and suffering, infact 3 million dollars worth. Never mind I don't have a job, make no income and own nothing- that is I have no documentable loses or measureable damages...I will receive a maximum of 350k for this "pain and suffering" under the current cap;but without the cap I can get 3 million and this has actually happen!
Few physicians want to take care of these types of patients ( self destructive )and when you are sued for pain and suffering, you quit. Why? Because, unfortunately no matter what they tell you about insurance covering your losses- there is no such thing as insurance; rather whatever the "insurance company" pays on your behalf in a malpractice claims is charged back to you in higher insurance premiums. Just consider the cost of auto insurance if you have an accident. Whatever is paid out is recovered in the future from you through higher premiums. Unfortuantely when the insurance company get through paying 3 million for pain and suffering to Mr. Drug addict, you the physician become uninsurable. Because after this "hit" you can't purchase insurance at any reasonable price. You, and the medical care you provide, have been taken out by pain and suffering, which no one can measure and anyone can claim. No free lunch.
We need to lower the cap, not raise it. If someone is damaged they are compensated under the current system.
Almost all doctors carry malpractice with a limit of 1 million dollars per occurence and 3 million dollars in the aggregate. If Dr. Desai loses 100 cases at $500,000 each ($150,000 for actual damages and $350,000 for pain and suffering which is the limit), he will owe $50 million dollars. The insurance company will pay $3 million dollars. He will have to pay the remaining $47 million. He does not have that much money. If Nevada had no limits for pain and suffering and he lost 100 cases at $1,150,000 each ($150,000 for actual damages and $1,000,000 for pain and suffering), he would owe $115 million. He does not have that much money either. THE LIMITS WOULD HAVE NO EFFECT IN A CASE LIKE DR. DESAI'S. Only jail time is a significant deterrent for crimes which he allegedly did.
stevius -- your post makes you sound like a buffoon.
Listen to someone who's had an attorney flub a case in front of a judge who can't read the papers you paid dearly to put in front of him, or the law, and has forgotten his oath. You'll learn fast when you run out of money you just ran out of rights. Then your hear that dread word "appeal" and it all gets worse.
Then spend years studying law on your own and drafting the papers for your case. You find
Our judiciary is hopelessly corrupt from bottom to top, with few exceptions. Lawyers are not responsible for the justice found in this country, despite what your TV tells you. Ordinary people pushed too far are the ones who should be thanked.
I get a laugh out of you clowns that want lower the awards, I did get it when I went to get a colonoscopy.If you little whimps would be singing a differnt tune if it happened to you.There is no treatment for me as I can't go off my other meds long enough to take the treatment.If you read the law the judge can throw out the cap if he thinks its gross neligance,And don't forget the county and the state for not giving proper inspections there going down too!
Overkill.
Attorneys get from a min. 50% to a max of 70% of the winnings in a malpractice case. That is all the winnings not just the punitive damages.
LOL....it is all about the money.
Sad that the reporter does not report those facts.
Hmmmmmm....perhaps they do not to give the full picture to the readers. Perhaps, they are trying to push an agenda.
I think you are mistaken about attorney winning percentages jfnance32. Medical malpractice attorney fees in this state are capped by statute (NRS 7.095) to not exceed the following fee schedule.
* 40% of first $50,000 recovered.
* 33 1/3% of the next $50,000.
* 25% of the next $500,000 recovered.
* 15% of the amount of recovery that exceeds $600,000.
As you can see, attorney fees are capped well below the 50% to 70% you quoted. Let's keep it factual.
ajonate.......you might be correct on the percentages that you list but I'm suspect. However as long as we're being 'factual', you forgot to mention that the attorneys also collect 'costs', which can reach into the $100's of thousands of dollars. When you charge 1/6 of an hour, at $300/hr (non-partner rate), for a 1/4 page template document, and $1.50/page for copies, it adds up to astronomical amounts. So the percentages you offer are nothing but icing on the cake and you really have the audacity to state that it's not about money?! LOL!!!