Doctors take 2nd swing at Nevada tort reform

The petition is one part of physicians' continuing efforts to address medical liability insurance woes in the state.

By Tanya Albert, amednews staff. Nov. 11, 2002.

A group of Nevada physicians, patients and health care workers believe they've collected enough signatures to ensure that their state Legislature takes another look at tort reform.

Earlier this year, Nevada enacted court system reforms for medical malpractice cases in an effort to keep medical liability insurance available and affordable. But some doctors say the reforms need to be strengthened if the state is serious about keeping physicians in Nevada.

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Topic: Liability crisis
Region: West

And as long as slightly more than 61,000 of the 80,000 signatures that the group collected are valid, legislators will be required to vote on the reforms on the petition in the first 40 days after their session begins in February 2003.

Nevada's $350,000 cap on noneconomic damages applies to what each defendant pays to each plaintiff.

If lawmakers vote the reforms down, the petition will go before Nevada voters in the 2004 general election. At press time, the state was still verifying signatures.

The tort reform bill the Legislature passed this summer "was a start, but it's very weak and it's ineffective," said Henderson, Nev., ophthalmologist Rudy Manthei, DO, who leads the coalition, which is called Keep Our Doctors in Nevada. "We have to do something."

The petition contains five points:

Cleaning up language associated with the $350,000 cap on noneconomic damages so that it applies to each injury. Now the cap applies to what each defendant pays to each plaintiff. In California -- the state physicians point to as an example of successful tort reform -- the cap applies to each injury. "As they say, the devil is in the details," said Robert Kessler, DO, a family physician in Boulder City, Nev., who recently completed the Osteopathic Heritage National Health Policy Fellowship through Ohio University College of Osteopathic Medicine, Athens, Ohio. "Nevada's law encourages multiple plaintiffs to file multiple suits."
Deducting disability and health insurance payments from jury awards to prevent the patient from "double dipping." The current law excludes sources that have "subrogation clauses." "That excludes payments from virtually all health and disability insurance policies sold in Nevada," Dr. Kessler said.
Holding physicians liable only for the portion of economic damages for which they are responsible. Nevada's new law holds physicians responsible for their portion of damages only on the noneconomic portion of an award. "In Nevada, physicians are still jointly liable for economic damages," Dr. Kessler said. So when it comes to economic damages that can be in the millions, physicians who were responsible for a small portion of an error could be held financially responsible for a large portion of the jury award.
Creating a graduated fee payment for lawyers so that a larger portion of jury awards goes to injured patients.
Allowing periodic payments so that jury awards would be paid over time rather than in one lump sum.

Rallying for and against changes

The arguments for and against the petition's provisions are similar to the points the two sides made in Nevada earlier this year when the Legislature considered the issue in a special session. They echo the arguments the opposing sides are making nationwide.

The American Medical Association, which is pushing for reforms on the national level, earlier this year said that 12 states -- including Nevada -- are in the midst of a medical liability crisis that has physicians leaving the state, retiring early or discontinuing high-risk procedures. The Association identified another 30 states and the District of Columbia as showing signs that they are headed toward crisis.

Physicians, other health care professionals, patients and business leaders in Nevada say tougher tort reform standards are needed than the ones passed earlier this year because rising jury verdicts and settlements in medical malpractice cases are forcing insurance companies to increase premiums to meet their payments.

Nevada does not limit physicians' responsibility for the economic portion of an award.

Groups including the Nevada State Medical Assn. and the Nevada Osteopathic Medical Assn. support the petition. It will take two or three years to see how effective this summer's legislation will be and to see whether the court declares the law constitutional.

Lawrence P. Matheis, NSMA's executive director, said the petition provides a back-up provision if the existing law doesn't have the effect people believe it will to keep physicians in Nevada. Also, if the court does find the existing law unconstitutional, the issue would be guaranteed to go before voters.

"The petition is one part of a range of activities to ensure that once we are done dealing with this crisis in Nevada, we will never have to face it again," Matheis said.

In the coming months, the state will continue to address medical liability problems by looking at insurance reform and other issues that the Nevada Legislature did not address in its special session earlier this year.

Trial attorneys and some consumer groups say the courts aren't to blame for a spike in costs and that the issues addressed in the petition won't help physicians.

"It will enable the insurers to make a lot of money," said Dean Hardy, a past president of the Nevada Trial Lawyers Assn. "Claims did not drive up the costs."

Hardy said efforts should be focused on better regulating the insurance industry, which he believes underpriced insurance in the 1990s and saw investments go sour as the stock market cooled off. Nevada's problems started when St. Paul pulled out of the state. The company insured 60% of the physicians in the southern part of the state.

More oversight from the state's insurance department could have helped alleviate some of the problems, Hardy said.

Political experts aren't optimistic that the Nevada Legislature will pass the reforms that Keep Our Doctors in Nevada is calling for. But organizers of the effort are relieved that if lawmakers don't make the changes, the voters will get a chance to consider the issue in 2004.

"A big concern is people not having access to care," Dr. Manthei said. "We feel very strongly that people have the right to vote on the issue."

ADDITIONAL INFORMATION:

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Nevada State Medical Assn. position statement on Keep Our Doctors in Nevada initiative, in pdf (http://www.nsmadocs.org/Newsletters/PLIUpdates/PLI_43.pdf)