Newsletter XXX July 2002
Contents
CCMS Welcomes New Officers at 2002 Installation Dinner
CCHD Disease Statistics – May 2002
CCMS Welcomes New Officers at 2002 Installation
Dinner
(Photos not available online.)
Above: 2002-2002 Board members at the Installation Dinner on June 1, 2002 at the Las Vegas Country Club Right: President Dr. Raj Chanderraj passes the gavel to incoming President Dr. Warren Evins. Below: CCMS CEO Dr. Weldon Havins with Dr. Marietta Nelson and NSMA President Robert Shreck Left: CCMS Alliance president Karen Schroeder displays a Disappearing Doctors poster.
Referral Tallies
The following referrals were provided to CCMS members in the second quarter of 2002 (through June 12)
Specialty Referrals
Addiction Medicine 0
Allergy 0
Anesthesiology 0
Cardiology 7
Cardiovascular Surgery 1
Colon & Rectal Surgery 3
Dermatology 5
Diagnostic Radiology 0
Endocrinology 7
Family Practice 17
Gastroenterology 5
General Surgery 9
Geriatrics 2
Gynecologic Oncology 0
Hematology 1
Infectious Medicine 1
Internal Medicine 19
Nephrology 0
Neurology 5
Neurosurgery 3
Ob-Gyn 49
Oncology 6
Ophthalmology 7
Oral/Maxillofacial Surg. 0
Orthopaedic Surgery 15
Otolaryngology 3
Pain Management 4
Pathology 0
Pediatrics 1
Ped. Endocrinology 0
Ped. Surgery 0
Physical Med/Rehab 0
Plastic Surgery 11
Preventative Medicine 0
Psychiatry 14
Pulmonology 4
Radiology 1
Rheumatology 5
Toxicology 1
Urology 5
Vascular Surgery 0
Totals 211
New Members
Congratulations and Welcome to the Clark County Medical Society New Members for June 2002
- Donald Roberts, MD, Ob-Gyn, 1707 W. Charleston Blvd. #110, Las Vegas, NV 89107
- Hamidreza Sanatinia, MD, Internal Medicine, 58 N. Pecos Rd., Henderson, NV 89074
- Naresh Singh, MD, Pulmonology, 2000 Goldring Ave., Las Vegas, NV 89106
Reinstated Member
- R. Garn Mabey, MD, Ob-Gyn, 2881 N. Tenaya Way, Las Vegas, NV 89128
Member Applicants
If you have any pertinent information about the following membership candidates, please contact:
Clark County Medical Society, 2590 E. Russell Rd., Las Vegas, NV 89120
- Armen Hovanessian, MD, Diagnostic Radiology
- David Marmaduke, MD, Pathology
- Michael Schunk, MD, Diagnostic Radiology
- Jonathan Strauss, MD, Pathology
President’s Message
By Warren Evins, M.D., 2002-2003 CCMS President
I feel that I have been given a great honor by being chosen as the next President of the Clark County Medical Society, and I thank the membership. My term of office and the terms of the newly elected officers and members of the Board of Trustees will begin on July 1 and run for one year. I am especially delighted to share tonight's program with the Honorable Kenny Guinn, Governor of the State of Nevada, and the 2002 recipient of the NSMA Nicholas Horn Award.
I owe a debt of gratitude to the staff of the CCMS:
Dot Freel, our office manager
Deborah Barton, our Public Relations specialist
Marlaina Burns, our receptionist and membership specialist
And especially Don Havins, MD, JD, an absolutely essential part of CCMS without whose dedicated efforts, over and above the call of duty, we would find ourselves to be a far less successful organization.
And also to the officers; current, returning and outgoing members of the Board of Trustees, Committee chair persons and Committee members.
Participation of the members in the affairs of the CCMS has not been as high as I would like to see, so during my term as President, I would like to strongly encourage more doctors to participate. Although not every committee of the CCMS meets on a regular basis, I will appoint members to committee positions where they are willing to serve.
Congratulations to the newly elected and returning officers, Members of the Board of Trustees, Committee chairs and members. Ed Kingsley- President-Elect, Kevin Hyer- Secretary, Lon Ashton- returning Treasurer, Cyriac Chemplavil- Executive Council Member and Delegate Chair, and Past President Raj Chanderraj.
Committees are:
1. Building
2. Bylaws, Policies and Procedures
3. Community Relations/ Community Health
4. Credentials
5. Government Affairs
6. Internal Affairs (officers only)
7. Membership
8. Mini-Internship
9. Nominating (already elected by the membership)
10. Professional Standards
11. Scholarship (designated officers only)
12. and others as to be determined on an interim basis.
The Mission of the CCMS is to serve the needs of physicians, their patients, and the Clark county community with responsibility and integrity.
Our Vision is to strive
1. To be the advocate for physicians, their patients, and the health of the entire community
2. To preserve the physician/patient relationship and to ensure quality health care in both traditional and managed care environments
3. To be the representative and voice of the medical community
4. To be an important source of unbiased quality continuing medical education, especially filling physicians' needs that are not elsewhere met.
Our Values are
1. Quality Care
2. Integrity
3. Respect
4. Professionalism
5. Leadership
6. Unbiased Quality CME
Our Goals are to
1. Provide advocacy for and quality education to physicians, medical professionals and the public
2. Identify and address common health problems.
3. Improve communication with members and the community [one of my special goals]
4. Promote leadership and participation among members [another special goal of mine]
5. Establish stronger professional networks
The Society effects its purposes through CME and public education, information and referral services, research, civic and legislative analysis, peer review, and negotiations with entities having fiduciary or regulatory relationships with the profession of medicine [such as the Nevada State Board of Medical Examiners, which met yesterday and today in Reno;] and the various offices and organizations working on Medical Liability Reform patterned after California's MICRA, which has been working well in California for over 25 years, such as the Taskforce, Department of Insurance and the Governor's office.
What should CCMS do? We are a democratic organization. We have members with many differing opinions and voices. However, we need to work together. There is strength in numbers and unity. A House divided against itself cannot stand.
There are some who believe that only their viewpoint and position is legitimate. They believe that opposing viewpoints are intolerable and biased, and that doctors with these opinions should be prevented from participating in CCMS.
We as a Society have many problems. Communication with our members is very difficult. We will try to improve communication with broadcast faxes, newsletters, mailers, and sometimes even telephone calls, which are very time consuming. However, our members are very busy and sometimes our faxes and newsletters are not read. Please try to at least scan the faxes and newsletters to find what is of interest and importance to you.
We have financial and budget problems in trying to do what we want and need to do. There were, and continue to be, large expenses associated with the Medical Liability CRISIS. Our aging Medical Society home has needed unplanned repairs and upkeep. We have a future need for renovation and updating of our building.
There is a considerable GAP between what we WANT to do and what we CAN do and even what we CAN AFFORD to do.
At a recent meeting, a representative of the AMA PAC spoke to us about physician and attorney participation in political action and election campaign. I do not remember the exact figures (I misplaced them in a recent house move… I know it is still there in one of those hundred or so unpacked boxes) but there are about TWICE as many attorneys as medical physicians. Yet The AVERAGE YEARLY CONTRIBUTION of attorneys was about $2,000 to $3,000. And that of Doctors was $7.
We have a Clark County MED PAC. There is a State of Nevada NSMA affiliated NEM PAC. There are FOUR-count them-FOUR Doctors and at least two Doctors' spouses running for the Nevada Legislature and US Congress. We NEED to support these candidates and other candidates who support our political ambitions.
I ask for your help in these endeavors.
THANK YOU!!
Warren H. Evins, MD, PhD, FACP
President, Clark County Medical Society
CEO Editorial
By Weldon (Don)
Havins, M.D., J.D., CCMS Executive Director/CEO and Special Counsel
NSMA and CCMS Presents Governor
with the Nick Horn honorary award
Governor Guinn received a richly deserved Nick Horn award for service to the medical community. Once Governor Guinn recognized the medical malpractice crisis, he used his powerful office to establish an insurance association to provide medical liability coverage to those unable to obtain insurance in the primary market. St. Paul Company's relatively precipitous departure from Nevada, while understandable from an economic sense, created a vacuum unfilled by skittish existing insurers. St. Paul has been accused of predatory pricing, making illegal payments to unlicensed agents, and billing for unapproved rate increases. The Governor has ordered the State to sue St. Paul for these transgressions. This suit has been filed.
Governor Guinn has met repeatedly with physicians, insurers, and members of the Nevada Trial Lawyers Association in an attempt to find common ground upon which to base a solution to the crisis. There appears to be no agreed upon common ground among the disputants. Governor Guinn, responding to physicians' concerns about tail coverage expense, initiated an MLAN (Medical Liability Association of Nevada) audit of prior closed claims which resulted in the company now offering prior acts coverage on all specialties. MLAN also has reduced the claims made mature rate premium of 18% to around $88,600. With prior acts coverage and no limitation on deliveries up to 225 per year, MLAN has become a viable option for OBGYNs.
Recently, Governor Guinn took a public position supporting physicians' desire for a $250,000 cap on noneconomic damages. Following this news conference announcement, the Governor convened a joint group of physicians, NTLA trial attorneys, and insurers to attempt to obtain a substantial consensus on a package of proposed medical liability reforms. The Governor pledged to convene a special session of the Legislature should the group be successful in this effort. The Governor gave the group 45 days to develop this package.
A few physicians have criticized the Governor for initially not recognizing, or not admitting the existence of the medical liability crisis. We physicians should look to some of our brethren in the non-high risk specialties who, while inconvenienced by the difficulty in the availability and affordability of medical liability insurance, still do not appreciate the seriousness of the crisis. When we do, the Governor's apparent tardiness in admitting the existence of the crisis shrinks to insignificance. Others have criticized the Governor for not recognizing the "tail coverage problem" until recently. Indeed, OBGYNs, in particular, have been perplexed by MLAN's (the Governor's Insurance Plan) tardiness at offering "prior acts" or "nose coverage". In fact, actuarial analysis of the risk of underwriting such coverage was not completed until the beginning of June. MLAN's Board of Directors reported the results to the Governor and received immediate permission to offer "prior acts" coverage, which is now available in all specialties. Actuarial analysis also suggested that OBGYN mature claims made premiums could be lowered 18%. The Governor authorized immediate implementation of this benefit.
While every other insurer in Nevada has recently, or is now, increasing premium rates, MLAN is the first, and only, to offer an actual premium rate reduction (to OBGYNs). Actuarial analysis concluded the other mature premium rates for physicians are appropriately priced for Clark County. Thus, the Governor implemented MLAN, a non-profit insurer, determined that premium rates are appropriate for the risk in Clark County. Contentions by some that the "insurance industry" is taking advantage of physicians is simply not sustained by these independent, not-for-profit, actuaries. The cost of current Clark County medical liability premiums apparently is justified by the "sky is the limit" lack of control over recent jury awards and settlements in Clark County.
Several OBGYN physicians, the Nevada Board of Medical Examiners, and others criticized the Governor for proposing reduced residency requirements for (OBGYN) medical licensure in Nevada. This request did not generate any change to the current Nevada Revised Statutes requirements for medical licensure. One can reasonably conclude the desperation in this proposal mirrors the desperation for some relief sought by many of the high risk specialty physicians in Clark County.
As a politician running for re-election, the Governor has expended political capital far beyond reasonable expectations. Governor Kenny Guinn deserves the praise and thanks of every man and woman in Nevada.
----------------------------------------------------------------------------------------------------------------------------------------
Are Health Care
Providers Subject to Joint and Several Liability in
Nevada; i.e., are health care providers "deep pockets" for other
health care providers that are under-insured, bankrupt, or covered under a
sovereign immunity cap of $50,000?
The answer is: it depends. Under NRS 41.141, concerted acts of heath care providers are subject to several liability only (no "deep pocket") when the answer to the complaint asserts comparative negligence on the part of the plaintiff. Talking with both plaintiff and defense medical malpractice attorneys, one learns that more than a simple assertion is required. The plaintiff must be capable of comparative negligence, the defense of comparative negligence must be asserted in the answer to the medical malpractice complaint, and sufficient evidence must be admitted at trial to obtain a comparative negligence of the plaintiff jury instruction. If this is not done, these attorneys contend, joint and several liability ("deep pockets") apply to health care providers.
The interpretation of this statute has been challenged in a recent $6,000,000 verdict against a birthing center and two OBGYNs. The mother sued the birthing center and the doctors in one cause of action. The jury found the plaintiff mother 75% comparatively negligent. Under NRS 41.141, a plaintiff more than 50% at fault collects nothing. The brain damaged infant sued (his mother sued in his name). Because an infant cannot be comparatively negligent (arguably children up to age 8 cannot be comparatively negligent in Nevada), the answer did not assert comparative negligence. The jury awarded $6,000,000 in the case, finding the birthing center 90% at fault, and each of the two OBGYNs 5% at fault. Under several liability, each of the OBGYNs would be liable for $300,000. However, the birthing center is bankrupt. The judge ruled that NRS 41.141 did not apply and that the OBGYN doctor were jointly and severally liable. One of the OBGYNs settled out of the case for his $1,000,000 policy limits. The judge granted the other OBGYN a new trial based on an evidentiary conflict.
The intent in adopting this legislative change in S.B. 511 of 1987 was to eliminate joint liability among health care providers. Before the Senate Judiciary Committee, Pat Cashill, President of Nevada Trial Lawyers (NTLA), and Jim Cashman, Chairman of the Coalition for Affordable and Available Liability Insurance (CAALI), explained S.B. 511 and the negotiations involved in its drafting. Mr. Cashill made clear that the key concept of the bill "is that joint liability will be eliminated subject to the various exceptions . . .." Mr. Cashman concurred, reiterating that subsection (4) "removes joint liability." In response to that broad statement, Mr. Cashill emphasized that the abrogation of joint liability was with the exceptions in subsection (5) from which health care providers are specifically now exempted. Mr. Cashill made no other qualification. Mr. Cashill and Mr. Cashman assured the committee that "all of the people who discussed this bill are in concert [sic] with their testimony...." Sen. Jud. Co. Min. May 13, 1987; Leg. Hist. at 19. The principal parties in the negotiations included: for CAALI: Cashman, Ed Pearce, Mitch Cobeaga, Howdy Wells, and Gary Voss; for the medical community: Bob Barengo, Rich Pugh, Dr. Slaughter and Dr. Potenza; for the National Federation of Independent Businesses: Marty Bibb; and for the Nevada Insurance Industry: Jim Wadhams.
While all parties apparently agreed with the intent of the legislation, the wording of the law in NRS 41.141 appears to conflict with that stated intent. Established legal principles provide that the law shall be interpreted and enforced according to its clear meaning. Only when an ambiguity exists in the terms of the law shall the courts resort to legislative intent to assist in interpreting the law. CCMS and NSMA have signed an amicus curiae (friend of the court) brief supporting a brilliantly reasoned Writ of Mandamus submitted by, arguably, the best appellate lawyer in Nevada, Dan Polsenberg, Esq. The Writ requests the Nevada Supreme Court to consider this issue and to rule that joint liability does not apply to health care providers. Normally, appellate courts, such as the Nevada Supreme Court, will not entertain Writs because the case has not concluded in District Court. We hope, in this current crisis, that the Nevada Supreme Court will make an exception, hear the issue, and decide that only several liability applies to health care providers acting in concert providing health care to a plaintiff. Until the Nevada Supreme Court rules on the issue, or until the legislature changes the law, health care providers should assume that joint and several liability applies whenever the plaintiff is less than eight years of age and when there is no substantial admissible evidence of comparative negligence of a plaintiff over the age of seven.
When a non-governmental-employed physician is sued for medical malpractice along with a health care provider covered under a sovereign immunity cap ($50,000 in Nevada for state and county employees), the non-governmental-employed physician can expect to be the "deep pocket" for the award or settlement. The only exception would be under the comparative negligence provisions of NRS 41.141.
Does the Medical
Dental Screening Panel Work?
It depends on your definition of "work". We accept the empirical formula: (Frequency x Severity) + Insurance "Costs" = Insurance Premiums Total that must be paid by physicians. Insurance "costs" include administrative costs, reserves for incidences, commissions to brokers, profits, and indemnity payments, among others. An inverse "cost" consideration concerns the success of investments within an insurance company's portfolio. When investments are positive, insurance companies can afford to maintain level premiums (or even reduce premiums), even in the face of rising medical costs (the major component of economic damages). When investment portfolios fall, such as in an economic downturn, insurance companies must increase revenues from premium sources (raise premiums) at a rate greater than increasing medical costs in order to maintain the same level of fiscal solvency. The greater the uncertainty in claim "frequency" and/or "severity" requires insurers to increase premiums to meet reasonably anticipated financial liabilities.
Stability in claim "frequency" is a major factor permitting insurers to more accurately estimate or project financial liabilities. The following chart indicates that claim frequency, considering the Medical Dental Screening Panel experience in Las Vegas (Southern Panel) and Reno (Northern Panel), has been relatively stable (and thus, predictable) in both areas of the state. However, claim frequency in the Las Vegas panel area has always been greater than frequency in the Northern panel area. (See exhibit 1)
Exhibit 1: Division
of Insurance 1986-2001 MDSP Filings per 100,000 Population
for Las Vegas vs. Reno Panels
When compared to other states, claim frequency in Nevada is not particularly low. Nevada ranks 33rd in frequency of claims per 100,000 population. (See exhibit 2) If one were to distinguish Clark County from the remainder of the state, the frequency of claims would be even higher. Nevertheless, the relative stability of the frequency permits insurers to more accurately predict the incidence of claims in the future.
Exhibit 2: Medical
Malpractice FREQUENCY, 2000
(Source: Pennsylvania
Medical Society, State Statutes)
|
|
MEDIAN PAID |
TOTAL PAID |
# Cases |
STATE POP. |
Cases/100K Pop. |
|
Wisconsin |
$
62,857 |
$ 9,309,938 |
57 |
5,250,446 |
1.1 |
|
Alabama |
$200,000 |
$
34,839,809 |
174 |
4,369,862 |
4.0 |
|
Minnesota |
$100,000 |
$
19,099,414 |
191 |
4,775,508 |
4.0 |
|
Virginia |
$150,000 |
$
45,457,891 |
303 |
6,872,912 |
4.4 |
|
Oregon |
$141,500 |
$
22,962,782 |
162 |
3,316,154 |
4.9 |
|
North
Dakota |
$143,750 |
$ 4,719,024 |
33 |
633,666 |
5.2 |
|
Alaska |
$100,000 |
$ 3,244,459 |
32 |
619,500 |
5.2 |
|
Maine |
$262,482 |
$
18,947,319 |
72 |
1,253,040 |
5.8 |
|
Kansas |
$175,000 |
$
27,218,617 |
156 |
2,564,052 |
6.1 |
|
Tennessee |
$100,000 |
$
35,219,509 |
352 |
5,483,535 |
6.4 |
|
Arkansas |
$ 91,880 |
$
15,220,747 |
166 |
2,551,373 |
6.5 |
|
North
Carolina |
$132,500 |
$
68,044,766 |
514 |
7,650,789 |
6.7 |
|
Idaho |
$100,000 |
$ 8,553,166 |
86 |
1,251,700 |
6.8 |
|
Missouri |
$130,000 |
$
48,927,635 |
376 |
5,468,338 |
6.9 |
|
Mississippi |
$127,750
|
$
24,560,080 |
192 |
2,768,619 |
6.9 |
|
Oklahoma |
$121,000 |
$
28,664,501 |
237 |
3,358,044 |
7.1 |
|
Hawaii |
$120,000 |
$
10,101,623 |
84 |
1,185,497 |
7.1 |
|
Georgia |
$166,667
|
$
92,601,367 |
556 |
7,788,240 |
7.1 |
|
Nebraska |
$115,250 |
$
14,137,915 |
123 |
1,666,028 |
7.4 |
|
South
Dakota |
$100,000 |
$ 5,416,283 |
54 |
733,133 |
7.4 |
|
Vermont |
$ 75,000 |
$ 3,318,284 |
44 |
593,740 |
7.5 |
|
South
Carolina |
$100,000 |
$
29,083,405 |
291 |
3,885,736 |
7.5 |
|
Massachusetts |
$250,000 |
$120,874,822
|
483 |
6,175,169 |
7.8 |
|
Delaware |
$150,000 |
$ 9,324,166 |
62 |
753,538 |
8.2 |
|
Illinois |
$250,000 |
$271,050,075
|
1084 |
12,138,370 |
8.9 |
|
Maryland |
$150,000 |
$
70,318,417 |
469 |
5,171,634 |
9.1 |
|
Arizona |
$159,000 |
$
68,920,361 |
433 |
4,778,332 |
9.1 |
|
Michigan |
$ 85,000 |
$
79,040,011 |
930 |
9,863,775 |
9.4 |
|
Iowa |
$100,000 |
$
27,218,617 |
272 |
2,869,413 |
9.5 |
|
Washington |
$
90,000 |
$
50,356,170 |
560 |
5,756,361 |
9.7 |
|
Texas |
$110,000
|
$217,518,136
|
1977 |
20,044,141 |
9.9 |
|
Colorado |
$
84,997 |
$
34,590,151 |
407 |
4,056,133 |
10.0 |
|
Nevada |
$175,000 |
$ 37,090,955 |
212 |
1,998,527 |
10.6 |
|
West
Virginia |
$100,000
|
$
19,370,928 |
194 |
1,806,928 |
10.7 |
|
Kentucky |
$ 75,000 |
$
32,651,014 |
435 |
3,960,825 |
11.0 |
|
Connecticut |
$200,000
|
$
72,233,556 |
361 |
3,282,031 |
11.0 |
|
California |
$ 55,000 |
$200,832,512
|
3652 |
33,145,121 |
11.0 |
|
Louisiana |
$
99,999 |
$
51,362,457 |
514 |
4,372,035 |
11.7 |
|
New
Mexico |
$100,000
|
$
20,602,974 |
206 |
1,739,844 |
11.8 |
|
Florida |
$175,000
|
$321,079,151
|
1835 |
15,111,244 |
12.1 |
|
New Hampshire |
$111,000 |
$
16,972,268 |
153 |
1,201,134 |
12.7 |
|
Utah |
$ 90,000 |
$
25,442,649 |
283 |
2,129,836 |
13.3 |
|
New
Jersey |
$175,000
|
$191,540,088
|
1095 |
8,143,412 |
13.4 |
|
Indiana |
$
75,001 |
$
59,935,317 |
799 |
5,942,901 |
13.4 |
|
Montana |
$125,000
|
$
15,805,913 |
126 |
882,779 |
14.3 |
|
Pennsylvania |
$192,755
|
$352,309,905
|
1828 |
11,994,016 |
15.2 |
|
Ohio |
$115,000
|
$205,148,823
|
1784 |
11,256,654 |
15.8 |
|
Rhode
island |
$100,000 |
$
17,826,074 |
178 |
990,819 |
18.0 |
|
New
York |
$150,000
|
$632,996,221
|
4220 |
18,196,601 |
23.2 |
|
Wyoming |
$100,000 |
$
15,650,157 |
157 |
479,602 |
32.6 |
|
Bold
indicates States in crisis according to the American Medical Association |
|
||||
|
Italicized
States are those currently without a problem according to the AMA |
|
||||
Stability of
frequency of filing claims with the Medical Dental Screening Panel established, what do we know about the incidence of claims filed in
District Court following MDSP Findings?
Experience in Southern and Northern panels are similar. Almost 25% of MDSP Findings concerning physicians are "a reasonable probability of malpractice occurred" and the claimant was injured thereby i.e., the malpractice caused the claimant’s injury. Almost 25% of the Findings return "unable to decide" whether malpractice occurred and the claimant was injured thereby. Slightly over 50% of the Findings are "no reasonable probability of malpractice and the claimant was injured thereby; i.e., in over one-half the allegations made against physicians, the panel finds there was "no probable malpractice." The incidence of these claims being filed in District Court anyway, alleging physician malpractice, has risen steadily since the implementation of the MDSP. In Clark County, the incidence of going forward with a claim for medical malpractice has risen from a low of 4 percent in 1987 to a high of 72 percent in 2002. (See exhibit 3)
Exhibit 3: Las Vegas
MDSP 1986-2001, Percent of No Probable Malpractice Findings of MDSP Filed in
District Court
Furthermore, the significance Clark County juries allot to findings of no probable malpractice appears problematic, at least since April 2000 when a jury awarded $2,000,000 against a highly respected ophthalmologist, Dr. Kurt Buzard, in the face of a panel finding of no probable malpractice. MDSP Panel findings of "probable malpractice" and