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 of "no probable malpractice" are admitted into evidence during medical malpractice trials and become part of the public record available to anyone desiring to review the case file at the Clark County Clerk's office. (See exhibit 4)
Exhibit 4: Clark County
Medical Malpractice Jury Awards 1996-2001
Trial Date Case Name Jury Award MDSP Finding Econ Dam Nonecon
Dam
(per
LV R-J) (per
District Court files)
Nov 1996 Brooks v HCA Nevada $225,000 (Past
Dam=$75,000 Future Dam=$75,000)
Mar 1997 Ross v Sparkhul $545,042 Unable
Dr.
Sparkhul 0 0
Valley
Hosp $29,926 0
Nov 1998 Schmitz v Ebert $500,000 Unable (Past Dam=$100,000 Future Dam=$150,000)
Dec 1998 Fox v Donner $3,000,000 $500,000 $2,899,600
Feb 1999 Estate of McCrae v Jonak sealed
verdict Prob
Mal
May 1999 Burney v Kramer $5,350,000 Prob Mal $350,000 $5,000,000
Jun 1999 Cleveland v Capanna $450,000 Unable (Past Dam=$100,000 Future Dam=$350,000)
Jul 1999 Schrader v Swain $3,406,255 Prob Mal $750,000 $2,000,000
Dec 1999 Puckett v Valley Hosp $983,000 Prob
Mal $0 $983,000
Mar 2000 Marquez v Southwest Med $1,200,000 (Past
Dam=$400,000 Future Dam=$800,000)
Dr.
Richard Roberts Prob Mal
Dr.
Robert Litt Unable
Dr.
Jamesetta Tate Unable
Mar 2000 Gainey
v Valley Hosp $55,000 Prob $55,000 0
Apr 2000 Ruppert v Buzard $2,000,000 No Prob
Mal (Past
Dam.=$1,000,000
Future Dam.=$1,000,000)
Apr 2000 Makuch v Fremont Med Ctr $130,000
Dr.
Ray Nicholl No
Prob Mal $64,000 $66,000
Jul 2000 Rice v Torres $205,000 No Prob
Mal ($205,000 total damages)
Sep 2000 Fowler v Egtdar $1,237,220 Prob Mal $284,720 $952,500
Sep 2000 Suprien
v Poon $715,000 Prob
Mal $100,000 $415,000
Feb 2001 Watts v Reliable Med Ctr $6,000,000
Dr. Adam Levy No
Prob Mal
Dr.
Ken Turner Prob Mal
(Dr.
Turner settled for policy limits of $1,000,000; Dr. Levy was granted new trial)
Mar 2001 Spradlin
v Hito $1,500,000 Prob Mal $450,000 $1,050,000
May 2001 Irving v Sunrise
Hosp $78,047 Prob
Mal $3,047 $75,000
Jul 2001 Banks v Sunrise Hosp $5,412,031 No
Prob Mal $2,664,030 $2,748,000
Aug 2001 Conn v Schiff $2,000,000 Prob Mal $1,660,000 $340,000
Oct 2001 Kay v Etiaiha $1,520,000 Unable $20,000 $1,500,000
Oct 2001 Debourg
v Southwest Med $4,564,128 $1,339,128 $3,225,000
Against
an APN – not a MDSP case
Bold cases
are those with an MDSP finding of “Unable to Decide”
or “No Probable Malpractice”
Additionally, the efficiency of MDSP Panels has steadily deteriorated since their implementation. A sampling of cases in each year of the Panel's existence demonstrates that it now takes, on average, almost a year and one-half from filing the claim with the Division of Insurance until a Panel renders a formal Finding. Adding the provisions of NRS 41A, as to time, reveals that the time from filing a claim with the panel to finding of the panel should be less than six months. (See exhibit 5)
Exhibit 5: MDSP
Approximate Months Filing to Finding
In summary, eliminating the MDSP would increase the incidence (frequency) of claims of medical malpractice filed in District Court. This would exacerbate the medical liability premiums physicians would be required to pay. Clearly, however, the MDSP is not functioning with the intended efficiency intended. Neither injured patients, nor their attorneys, accused physicians, nor their attorneys, nor even insurers benefit from this inefficiency.
While the MDSP should be retained because of its moderating effect on frequency, there is a compelling need to improve the efficiency of the MDSP.
Is There an
Award/Settlement SEVERITY Crisis in Clark County Medical Liability lawsuits?
In the Clark County Medical Malpractice Jury Awards, 1996 - 2001, one will note that the sum of years 1996 - 2000 does not equal the jury awards in the year 2001. A chart of the year 2000 indicates that Nevada rated 43rd in severity. One can infer the awards in Clark County have been more severe than the awards in Nevada counties outside Clark County by insurers' premiums being substantially higher. That being true, one could reasonably conclude that Clark County, Nevada may have one of the greatest severity of claim experiences in the United States in 2001. (See exhibit 6)
Exhibit 6: Medical
Malpractice SEVERITY, 2000
(Source: Pennsylvania
Medical Society, State Statutes)
|
|
MEDIAN PAID |
TOTAL PAID |
# Cases |
|
J/S Abol |
C/S Discl |
Fee Lim. |
|
California |
$
55,000 |
$200,832,512
|
3652 |
250K |
? |
X |
X |
|
Kentucky |
$ 75,000 |
$
32,651,014 |
435 |
|
|
|
|
|
Vermont |
$ 75,000 |
$ 3,318,284 |
44 |
|
X |
|
|
|
Indiana |
$
75,001 |
$
59,935,317 |
799 |
250K
pp |
|
X |
X |
|
Colorado |
$
84,997 |
$
34,590,151 |
407 |
250K |
X |
X |
|
|
Michigan |
$ 85,000 |
$ 79,040,011
|
930 |
280K |
|
|
|
|
Utah |
$ 90,000 |
$
25,442,649 |
283 |
250K |
X |
X |
X |
|
Washington |
$
90,000 |
$
50,356,170 |
560 |
|
|
|
|
|
Arkansas |
$ 91,880 |
$
15,220,747 |
166 |
|
|
|
|
|
Louisiana |
$
99,999 |
$
51,362,457 |
514 |
500K
total |
|
|
|
|
Alaska |
$100,000 |
$ 3,244,459 |
32 |
400K |
X |
|
|
|
Idaho |
$100,000 |
$ 8,553,166 |
86 |
400K |
X |
|
|
|
Iowa |
$100,000 |
$
27,218,617 |
272 |
|
? |
X |
|
|
Minnesota |
$100,000 |
$
19,099,414 |
191 |
|
|
X |
|
|
New
Mexico |
$100,000
|
$
20,602,974 |
206 |
500K |
? |
|
|
|
Rhode
island |
$100,000 |
$
17,826,074 |
178 |
|
|
X |
|
|
South
Carolina |
$100,000 |
$
29,083,405 |
291 |
500K |
|
? |
|
|
South
Dakota |
$100,000 |
$ 5,416,283 |
54 |
500K |
? |
X |
|
|
Tennessee |
$100,000 |
$
35,219,509 |
352 |
|
X |
X |
X |
|
West
Virginia |
$100,000
|
$
19,370,928 |
194 |
|
|
|
|
|
Wyoming |
$100,000 |
$
15,650,157 |
157 |
|
|
|
X |
|
Texas |
$110,000
|
$217,518,136
|
1977 |
|
? |
|
|
|
New
Hampshire |
$111,000 |
$
16,972,268 |
153 |
500K |
X |
|
|
|
Ohio |
$115,000
|
$205,148,823
|
1784 |
|
|
|
|
|
Nebraska |
$115,250 |
$
14,137,915 |
123 |
|
X |
X |
|
|
Hawaii |
$120,000 |
$
10,101,623 |
84 |
375K |
X |
|
|
|
Oklahoma |
$121,000 |
$
28,664,501 |
237 |
|
|
X |
|
|
Montana |
$125,000 |
$
15,805,913 |
126 |
250K |
? |
|
|
|
Mississippi |
$127,750
|
$
24,560,080 |
192 |
|
|
|
|
|
Missouri |
$130,000 |
$
48,927,635 |
376 |
465K |
|
|
|
|
North Carolina |
$132,500 |
$
68,044,766 |
514 |
|
|
|
|
|
Oregon |
$141,500
|
$
22,962,782 |
162 |
|
? |
|
|
|
North
Dakota |
$143,750 |
$ 4,719,024 |
33 |
500K |
X |
X |
|
|
Delaware |
$150,000 |
$ 9,324,166 |
62 |
|
|
X |
|
|
Maryland |
$150,000 |
$
70,318,417 |
469 |
500K |
|
|
|
|
New
York |
$150,000
|
$632,996,221
|
4220 |
|
? |
X |
X |
|
Virginia |
$150,000 |
$
45,457,891 |
303 |
|
|
|
|
|
Arizona |
$159,000 |
$
68,920,361 |
433 |
|
|
X |
|
|
Wisconsin |
$162,857
|
$ 9,309,938 |
57 |
350K |
|
X |
X |
|
Georgia |
$166,667
|
$
92,601,367 |
556 |
|
? |
|
|
|
Florida |
$175,000
|
$321,079,151
|
1835 |
300K |
? |
|
|
|
Kansas |
$175,000 |
$
27,218,617 |
156 |
|
X |
|
|
|
Nevada |
$175,000 |
$ 37,090,955 |
212 |
|
? |
|
|
|
New
Jersey |
$175,000 |
$191,540,088
|
1095 |
|
? |
|
X |
|
Pennsylvania |
$192,755
|
$352,309,905
|
1828 |
|
|
|
|
|
Alabama |
$200,000 |
$
34,839,809 |
174 |
|
|
|
|
|
Connecticut |
$200,000
|
$
72,233,556 |
361 |
|
|
X |
X |
|
Illinois |
$250,000 |
$271,050,075
|
1084 |
|
|
X |
X |
|
Massachusetts |
$250,000 |
$120,874,822
|
483 |
500K |
|
X |
|
|
Maine |
$262,482 |
$
18,947,319 |
72 |
|
|
|
X |
|
States
in bold type are in crisis according to the AMA |
|
|
|
|
|
||
|
States
in italics are not having medical liability problems currently |
|
|
|
|
|||
Division of Insurance data indicate a progressively increasing average closed claim experience in Nevada from 1986 - 2001. (See exhibit 7) Clark County jury awards have risen substantially since 1997, especially so in 2001. (See exhibit 8) Large claims closings from 1998 - 2001 have risen significantly in both the $250,000 to $1,000,000 range and in the over $1,000,000 range. (See exhibit 9)
Exhibit 7: Average
Closed Claims, 1986-2001
Exhibit 8: Clark
County Medical Malpractice Jury Awards, 1996-2001
Exhibit 9: Nevada
Large Claim Size Distribution, 1998-2001
Medical liability insurers' annual premium rates for new and mature claims made policies exemplify the severity problem in Clark County. The Medical Insurance Exchange of California (MIEC), a non-profit insurer, annual premiums are three times higher in Clark County than in San Diego County or Los Angeles County. (See exhibit 10) The Doctors Company's annual premiums for Clark County are also approximately three times as expensive as the annual premiums in San Diego and Los Angeles. The Doctors Company has a substantial premium increase for Clark County pending at the time of writing this editorial. (See exhibit 11)
Exhibit 10:MIEC (Medical Insurance Exchange of California) Claims Made
Policy $1,000,000/$3,000,000, 5-22-02
|
|
SAN DIEGO
|
LOS ANGELES |
NEVADA OUTSIDE |
CLARK |
|
|
|
|
|
|
|
FIRST
YEAR - Class 09 |
$
5,816.00 |
$
6,744.00 |
$ 10,912.00 |
$ 18,124.00 |
|
FIFTH
YEAR - Class 09 |
$ 17,056.00 |
$ 19,784.00 |
$ 32,004.00 |
$ 53,160.00 |
|
|
|
|
|
|
|
FIRST
YEAR - Class 10 |
$
6,460.00 |
$
7,496.00 |
$ 12,124.00 |
$ 20,140.00 |
|
FIFTH
YEAR - Class 10 |
$ 18,948.00 |
$ 21,980.00 |
$ 35,560.00 |
$ 59,068.00 |
|
|
|
|
|
|
|
FIRST
YEAR - Class 11 |
$
9,304.00 |
$ 10,792.00 |
$ 17,456.00 |
$ 28,996.00 |
|
FIFTH
YEAR - Class 11 |
$ 27,284.00 |
$ 31,652.00 |
$ 55,204.00 |
$ 85,056.00 |
|
|
|
|
|
|
|
FIRST
YEAR - Class 12 |
$ 12,920.00 |
$ 14,988.00 |
$ 24,244.00 |
$ 40,276.00 |
|
FIFTH
YEAR - Class 12 |
$ 37,896.00 |
$ 43,960.00 |
$ 71,116.00 |
$118,132.00 |
|
|
|
|
|
|
|
FIRST
YEAR - Class 13 |
$ 15,504.00 |
$ 17,984.00 |
$ 29,092.00 |
$ 48,328.00 |
|
FIFTH
YEAR - Class 13 |
$ 45,472.00 |
$ 52,748.00 |
$ 85,336.00 |
$141,760.00 |
|
|
|
|
|
|
|
Class 09
= ER, FP/GP with 5% or more surg, ENT |
|
|
|
|
|
Class
10 = FP/GP with rural OB, GYN only |
|
|
|
|
|
Class
11 = Colon & Rectal Surg, FP/GP with OB, GS,
Hand Surg, Ortho exc
spinal surg, PS, Thor. Surg
exc CVS |
||||
|
Class
12 = CVS, Ortho with spinal surg |
|
|
|
|
|
Class
13 = OBGYN |
|
|
|
|
Exhibit 11: The
Doctors Company $1,000,000/$3,000,000 Claims Made Policy Premiums as of 5-22-02
|
|
SAN DIEGO
|
LOS ANGELES |
NEVADA OUTSIDE |
CLARK |
|
FIRST
YEAR - Emergency Medicine |
$ 11,216.80 |
$ 10,792.60 |
$
6,894.30 |
$ 13,635.65 |
|
FIFTH
YEAR - Emergency Medicine |
$ 32,048.00 |
$ 30,836.00 |
$ 19,698.00 |
$ 38,959.00 |
|
|
|
|
|
|
|
FIRST
YEAR - Fam. Prac. with OB |
$ 13,064.80 |
$ 13,262.55 |
$ 11,030.95 |
$ 17,793.30 |
|
FIFTH
YEAR - Fam. Prac. with OB |
$ 37,328.00 |
$ 37,893.00 |
$ 31,517.00 |
$ 50,838.00 |
|
|
|
|
|
|
|
FIRST
YEAR - Gen. Surg. |
$ 14,130.90 |
$ 14,344.75 |
$ 10,913.70 |
$ 24,659.95 |
|
FIFTH
YEAR - Gen. Surg. |
$ 40,374.00 |
$ 40,985.00 |
$ 31,182.00 |
$ 70,457.00 |
|
|
|
|
|
|
|
FIRST
YEAR - CVS |
$ 13,382.60 |
$ 14,878.85 |
$ 10,913.70 |
$ 23,267.65 |
|
FIFTH
YEAR - CVS |
$ 38,236.00 |
$ 42,511.00 |
$ 31,182.00 |
$ 66,479.00 |
|
|
|
|
|
|
|
FIRST
YEAR - OBGYN |
$ 20,986.00 |
$ 22,317.00 |
$ 17,257.00 |
$ 39,420.00 |
|
FIFTH
YEAR - OBGYN |
$ 59,959.00 |
$ 63,764.00 |
$ 49,305.00 |
$112,628.00 |
Why are Medical Malpractice
Premiums So High in Clark County and Would MICRA- type Legislation Bring
Premium Price Down?
Premiums required to be paid by health care providers equal (severity of claims times the frequency of claims) plus insurer's "costs" (which include expenses, reserves on incidences, payments on claims, profits, commissions to brokers, portfolio losses, etc.). Insurers must also price their premiums to be competitive in the market. Instability in any of these elements will likely justify an increase in premiums. Thus, increasing or unpredictability of claim frequency will result in an increase in premiums levied upon the health care provider. Instability and unpredictability in the severity of claims, such as have occurred recently in Clark County, result in premium increases. Many insurers in Clark County have simply found the risk of losses to be so large and unpredictable that they have chosen to leave rather than write insurance in such a market.
Undoubtedly, a factor in the rise of medical malpractice insurance premiums has been the downturn in the stock market. Insurance company portfolios have undoubtedly suffered to some degree. However, to ascribe Clark County's medical malpractice insurance crisis wholly to insurance company investment losses denies the comparatively large (but, admittedly, relatively predictable) frequency of claims in Clark County and the progressive claim severity problem in Clark County. Premium costs within Nevada but outside of Clark County are often one-half of those within Clark County. The insurer's investment losses cannot account for this differential. The differences between Nevada's premium rates and those in California, by the same medical malpractice insurance company, cannot be due to the insurer's investment losses. Nor can these differences in premium rates likely be explained by insurer "mismanagement" since the corporate management is the same in all the states in which the insurer writes. The premium charts of MIEC and The Doctors Company, above, illustrate the difference.
Why are premiums
lower in California?
The lower premiums are ascribed to California's medical liability reform laws, commonly known as "MICRA". The main provisions of California's Medical Liability Compensation Reform Act (MICRA) of 1975 are:
i. limitation on noneconomic damages (pain and suffering, inconvenience, humiliation, and other non-tangible injury/damages) of $250,000 per case;
ii. disclosure to the jury of other (collateral) sources of payments or reimbursements to the plaintiff;
iii. a sliding scale limitation on attorney fees;
iv. periodic payment of awards over $50,000 at the request of either party;
v. a ninety-day notice to sue; and
vi. a provision for voluntary binding mutual arbitration agreements.
California physicians have consistently constituted about 15% of the physicians in the United States since 1974. In 1974, before the passage of MICRA, California physicians were responsible for about 29% of claims paid in the U.S. After the passage of MICRA, this relative percent of claims paid decreased until about 1981 when California physicians paid about 15% of the claims paid in the U.S. This percentage decreased over the next couple years, then rose when the provisions of MICRA were before the California Supreme Court to test their "constitutionality."
After the provisions of MICRA were found constitutional, the percent of claims paid by California physicians steadily decreased as a percent of all U.S. claims paid. California physicians, still about 15% of U.S. physicians, now pay only 9% of total U.S. claims. (See exhibit 12) The percent of U.S. premiums paid by California physicians fell at a nearly parallel rate. California physicians now pay about 8% of the total U.S. medical malpractice premiums. (See exhibit 13)
Exhibit 12:
California Physician Malpractice Loss Payments as a Percent of Total
Physicians, 1975-1994
(Source: Journal of
the American Academy of Actuaries, Fall 1996)
Exhibit 13:
California Malpractice Premiums and Malpractice Loss Payments as a Percent of
U.S. Total, 1975-1994
(Source: Issue Brief
of the American Academy of Actuaries, Fall 1996)
The Doctors Company reports that injured patients receive 17% more in award than in states with limitations on attorney fees. Additionally, the amount of payments to injured patients for economic damages (wages and medical expenses) has far exceeded the consumer rate of inflation: from 1984 to 2000 the consumer rate of inflation totalled 64%; the health care inflation rate totalled 142%; the payments to injured patients totalled 144%. (See exhibit 14)
Exhibit 14: Payments
to Injured Patients Have Increased Faster Than Inflation
(U.S. Cities CPI vs. The Doctors Company Claims Payments)
New York, similar to Nevada, has not passed a package of medical liability reforms and has no noneconomic damage cap in place. A chart and graph from their share of claim payments reveals New York physicians to consistently pay more than their share of medical liability claims. (See exhibit 15)
Exhibit 15: New York
Malpractice Loss Payments as a Percentage of U.S. Total,
1975-1994
(Source: Issue Brief
of the American Academy of Actuaries, Fall 1996)
The American Academy of Actuaries published medical liability reform recommendations as follows:
1. A package of reforms is more likely than individual reforms to achieve savings in malpractice losses and insurance premiums, and;
2. Key among the reforms in the package are a cap on noneconomic awards and a mandatory collateral source offset rule wherein the jury is informed of collateral sources, and;
3. The cap on noneconomic damages should be established on a per-medical-injury basis at a level low enough to have an impact (e.g., $250,000).
Other academic articles have concluded that effective medical liability premium reduction requires effective medical liability reform:
1. Capping physician liability reduced premiums for general surgeons, OBGYNs, and general practitioners by 13% in the year following enactment of that reform and by 34% over the long term.
Zuckerman, S., Bovbjerg, R., and Sloan, R., "The Effects of Tort
Reforms and Other Factors on Medical Malpractice Insurance Premiums,"
Inquiry 27 (Summer 1990): 167-182.
2. Looking at closed claims, caps on noneconomic damages reduced insurer payouts by 31% and reduced payouts plus expenses by 23%. Caps on total damages reduced payouts by 38%.
Sloan, F., Mergenhagen, P., and Bovbjerg,
R., "Effects of Tort Reforms on the Value of Closed Medical malpractice
Claims: a Microanalysis," Journal of Health Politics, Policy and Law 14
(Winter 1989): 663-669.
3. Direct reforms, which include caps on noneconomic or total damages, reduced the likelihood that a physician in a state adopting a direct reform was sued by 2.1%. Within three years, premiums in direct reform states declined by 8.4%.
Kessler, D., and
McClellan, M., "the Effects of Malpractice Pressure and Liability Reforms
on Physicians' Perceptions of Medical Care," Law and Contemporary Problems
60 (Winter 1997): 81-106.
4. States adopting direct reforms exhibited reductions in hospital expenditures of 5% to 9% within three to five years. If generalizable to all medical spending, a $50 billion reduction in national health spending could be achieved through such reforms.
Kessler, D., and
McClellan, M., "Do Doctors Practice Defensive Medicine?" Quarterly
Journal of Economics, May 1996, 353-389.
5. The CBO (Congressional Budget Office), in 1998, asserted that caps on noneconomic damages have been extremely effective in reducing the severity of claims and medical liability premiums.
Congressional Budget
Office, "Preliminary Cost Estimate, H.R.
4250 Patient Protection Act of 1998," July 24, 1998.
For Nevada and other states in crisis and without meaningful medical liability reform laws in place, physicians should know that in no case has liability reform produced significant, immediate reductions in premium levels. However, without such reforms the chance of spontaneous reduction of medical liability premiums appears remote. For Nevada physicians in particular, if the recent past is prologue, medical liability premiums are likely to continue ascending to record levels without medical liability reform.
Candidate Profile
Lonnie Hammargren, MD and Lt. Governor
Emeritus, Candidate for Assembly District 15
Physicians must be advocates for quality and affordable health care. Children's medical services need improvement. Seniors are struggling with the high cost of utilities, services, prescription drugs, dental care, visual and hearing aids.
Doctors have been unable to pass on the steady increase in overhead expenses, while receiving less per unit of services. I received more reimbursement for a lumbar laminectomy in 1971 than I am receiving in 2002. Physicians are retiring or leaving the State because of the current malpractice crisis. I survived the malpractice crisis of 1975 and insured with the Nevada Medical Liability Association.
During the 1995 Legislature, as Lt. Governor and President of State Senate, I strongly supported Tort Reform Legislation. It received insufficient support from my medical colleagues and ferocious attacks from trial lawyers. I called them liars, which caused quite a controversy. I discovered truth and plain English is not the language of politics.
In response to the malpractice crisis of 2002, I have founded a Doctors mutual insurance company and have a license to solicit insurance. It is called the Nevada Doctors Mutual Insurance Company and will have competitive rates with the Governors plan, Medical Liability Association of Nevada, which is a temporary solution until private insurance is readily available.
I enjoy public service. I have served Nevada as an elected member of the State Board of Education 1984-1988, Board of University Regents 1988-1994 and Lt. Governor 1995-1999. I commend Doctors Ellerton, Hardy and Mabey who have decided to run for the Nevada State Assembly. It is not without sacrifice. It takes massive amounts of time away from our medical practice and family, but collectively we can tackle these health care issues head on from the Physician, the care givers point of view in the 2003 Legislative Session. The time to ACT is NOW.
How can Doctors help? Contributions of course, but personally get involved in the political process. Encourage your family, staff, patients, and fellow medical professionals to "Get Involved"- Volunteerism. LET'S ROLL!
WATCH FOR A DOCTOR'S GONG SHOW FUND RAISER --- COMING SOON
Contributions & Volunteers:
Lonnie Hammargren, M.D.
3196 Maryland Parkway #106
Las Vegas, NV 89109
392-2383
“Dr. Rotten Apple” Follow-Up
By Deborah Barton, CCMS Public Relations Coordinator
In the April 2002 County Line, we published a guest column from Richard Myers, Esq. of Crockett & Myers that spoke of a “Dr. Rotten Apple” and his impact on creating this crisis. Dr. Benjamin Venger wrote “A Second Opinion” response to this article in our June edition. (Both are available online at www.clarkcountymedical.com in the Newsletters section.)
Myers recently identified “Dr. Rotten Apple” as Francis D’Ambrosio, MD, who currently resides in California. Dr. D’Ambrosio was the subject of a recent complaint issued by the Nevada Board of Medical Examiners. Below is the text of the NBME complaint, Dr. D’Ambrosio’s Voluntary Surrender of License While Under Investigation, and a letter to the Board from Dr. D’Ambrosio regarding the surrender of his license.
Upon a review of disciplinary action taken by the Board posted by Las Vegas Review-Journal on its web site, this appears to be the first and only action against Dr. D’Ambrosio.
Before the Board of Medical Examiners of the State of Nevada
In The Matter of The Complaint Against Francis
G. D'Ambrosio, M.D., Respondent.
Case No. 02-7897-1
Filed 22 March 2002
Larry D. Lessly, Executive Director
COMPLAINT
Pursuant to the provisions of chapter 630 of the Nevada Revised Statutes, and by virtue of the authority vested in it by said chapter, the Investigative Committee of the Board of Medical Examiners of the State of Nevada, composed of Joel N. Lubritz, M. D., Chairman, Robin L. Titus, M.D., and Donald H. Baepler, Ph.D., members, having a reasonable basis to believe that FRANCIS G. D'AMBROSIO, M.D., has violated the provisions of said chapter, hereby issues its formal Complaint, stating the Investigative Committee's charges and allegations, as follows:
1. That Respondent's license to practice medicine is no longer active, having become suspended because of non-renewal for the biennial renewal period beginning July 1, 2001, but at all times alleged herein, Respondents held an active license to practice medicine in the state of Nevada, and did in fact practice medicine in the state of Nevada.
2. That NRS 630.267 provides that when a holder of a license fails to pay the fee for biennial registration after it becomes due, his license to practice medicine in this state is automatically suspended. The holder, may, within 2 years after the date his license is suspended, upon payment of twice the amount of the current fee for biennial registration to the secretary-treasurer, and after he is found to be in good standing and qualified under the provisions of Chapter 630, be reinstated to the practice medicine in this state.
3. That NAC 630.240(2), states that the failure to renew a license does not preclude the board from hearing a complaint for disciplinary action made against the licensee.
4. That prior to October 1, 1997, NRS 630.301(4) stated that it was grounds for disciplinary action if a licensee committed gross or repeated malpractice.
5. That some, but not all of the Counts in this complaint alleging Malpractice occurred prior to October 1, 1997, and, therefore, the greater burden of gross or repeated malpractice of NRS 630.301(4), as it read prior to the October 1, 1997 amendment, is applicable to those Counts.
6. That effective October 1, 1997, NRS 630.301(4) was amended to state that it is grounds for disciplinary action if a licensee commits malpractice.
7. That NRS 630.301(4), as that statute read prior to October 1, 1997, stated further that the commission of malpractice may be evidenced by claims of malpractice settled against a practitioner, and after October 1, 1997, that the commission of malpractice may be evidenced by claims settled against a practitioner.
8. That NAC 630.245, for purposes of chapter 630 of NRS, as that regulation existed prior to October 1,1997, and exists to this date, defines "malpractice" to mean the failure of a physician, in treating a patient, to use the reasonable care, skill, or knowledge ordinarily used under similar circumstances.
9. That NRS 630.306(7) states that it is grounds for disciplinary action if a licensee continually fails to exercise the skill or diligence or use the methods ordinarily exercised under the same circumstances by physicians in good standing practicing in the same specialty or field.
COUNT ONE
10. The allegations set forth in paragraphs 1 through 9 are incorporated herein as if set out in full.
11. That Respondent performed surgery at L5-S1 on Patient A, on September 15, 1995.
12. That as a result of Respondent's surgery on Patient A, Patient A had complications that resulted from the surgery, including, but not necessarily limited to cauda equina syndrome.
13. That a complaint for medical malpractice was filed by Patient A against Respondent with the Medical Dental Legal Screening Panel of the State of Nevada case number L97-09-1363.
14. That the complaint for malpractice filed by Patient A against Respondent with the Medical Dental Legal Screening Panel of the State of Nevada, case number L97-09-1363, was settled for the sum of SIX HUNDRED AND SEVENTY-FIVE THOUSAND DOLLARS ($675,000.00).
15. It is alleged upon information and belief that Respondent failed in treating Patient A, to use reasonable care, skill, or knowledge ordinarily used under similar circumstances, which resulted in Respondent committing malpractice in his treatment of Patient A, a violation of the provisions of NRS 630.301(4).
COUNT TWO
16. The allegations set forth in paragraphs 1 through 15 are incorporated herein as if set out in full.
17. That Respondent performed surgery on Patient B on September 12, 1997 complications arose, and Respondent performed a second surgery on Patient B approximately four (4) days later.
18. That as a result of Respondent's surgeries Patient B suffered extensive edema with ischemia resulting in postoperative quadriparesis and bone graft impingement.
19. That a complaint for medical malpractice was filed by Patient B against Respondent with the Medical Dental Legal Screening Panel of the State of Nevada case no. L99-02-1626.
20. That the complaint for malpractice filed by Patient B against Respondent with the Medical Dental Legal Screening Panel of the State of Nevada, case number L99-02-1626, was settled for the sum of ONE MILLION NINE HUNDRED TWENTY SEVEN THOUSAND DOLLARS AND EIGHTY-NINE CENTS ($1,927,000.89).
21. It is alleged upon information and belief that Respondent failed in treating Patient B, to use reasonable care, skill, or knowledge ordinarily used under similar circumstances, which resulted in Respondent committing malpractice in his treatment of Patient B, a violation of the provisions of NRS 630.301(4).
COUNT THREE
22. The allegations set forth in paragraphs 1 through 21 are incorporated herein as if set out in full.
23. That Respondent performed several surgeries on Patient C over a period of time from March, 1995, through August of 1997.
24. That Respondent performed surgery on Patient C on March 29, 1997, for a pre-operative diagnosis of "traumatic pseudoarthrosis".
25. It is alleged upon information and belief that Respondent failed in treating Patient C, in March of 1997, to use reasonable care, skill, or knowledge ordinarily used under similar circumstances, which resulted in Respondent committing malpractice in his treatment of Patient C, a violation of the provisions of NRS 630.301(4).
COUNT FOUR
26. The allegations set forth in paragraphs 1 through 25 are incorporated herein as if set out in full.
27. That Respondent performed surgery on Patient D, the first time on September 9, 1997, with an apparent pre-operative diagnosis of lumbar spinal stenosis.
28. It is alleged upon information and belief that Respondent failed in treating Patient D, in performing the surgery on September 9, 1997, to use reasonable care, skill, or knowledge ordinarily used under similar circumstances, which resulted in Respondent committing malpractice in his treatment of Patient D, a violation of the provisions of NRS 630.301(4).
COUNT FIVE
29. The allegations set forth in paragraphs 1 through 29 are incorporated herein as if set out in full.
30. That Counts One, Two, Three, Four, above allege malpractice committed by Respondent prior to October 1, 1997.
31. That in order for there to be a violation of the provisions of NRS 630.301(4), there must be a finding of guilty of malpractice in two or more of the allegations of malpractice as alleged in Counts One, Two, Three, Four, which result in finding of repeated malpractice having been committed by Respondent.
32. That it has been alleged upon information and belief that Respondent has committed malpractice in Counts One, Two, Three, Four, and it is further alleged herein that Respondent has committed malpractice in all Four Counts, but that it is only necessary to find him Guilty of having committed malpractice in two or more of the counts to find him guilty of repeated malpractice.
33. That it is alleged that Respondent has committed repeated malpractice in his treatment of Patients A, B, C, D, or a minimum of two (2) of those patients, which malpractices constitute repeated malpractice, a violation of the provisions of NRS 630.301(4) as that statute existed prior to October 1, 1997.
COUNT SIX
34. The allegations set forth in paragraphs 1 through 33 are incorporated herein as if set out in full.
35. That Respondent performed multiple surgeries on Patient D, in the years 1998 through 1999, after the initial surgery he performed on Patient D as set out in Count Four above.
36. It is alleged upon information and belief that Respondent failed in treating Patient D, in performing one or more of the multiple surgeries he performed on Patient D in the years 1998 through 1999, to use reasonable care, skill, or knowledge ordinarily used under similar circumstances, which resulted in Respondent committing malpractice in his treatment of Patient D, a violation of the provisions of NRS 630.301(4).
COUNT SEVEN
37. The allegations set forth in paragraphs 1 through 36 are incorporated herein as if set out in full.
38. That Respondent performed a microscopic cervical decompression and fusion with placement of an anterior plate C4-C7 on Patient E on October 28, 1998. Respondent then followed that procedure with the application of halo traction, a bilateral posterior laminectomy C4-C5, C5-C6, and C6-C7, and posterolateral fusion using axis plates.
39. Following the above surgery Patient E was found to have post operative complications, and Respondent recommended further surgery, to which Patient E consented, and Patient E was later diagnosed as an asymmetrical quadriplegic.
40. That a complaint for medical malpractice was filed by Patient E against Respondent with the Medical Dental Legal Screening Panel of the State of Nevada case number L-00-10-1989.
41. That the claim for Malpractice filed by Patient E against Respondent was settled for the sum of THREE MILLION FIVE HUNDRED THOUSAND ($3,500,000.00) DOLLARS.
42. It is alleged upon information and belief that Respondent failed in treating Patient E, to use reasonable care, skill, or knowledge ordinarily used under similar circumstances, which resulted in Respondent committing malpractice in his treatment of Patient E, a violation of the provisions of NRS 630.301(4).
COUNT EIGHT
43. The allegations set forth in paragraphs 1 through 42 are incorporated herein as if set out in full.
44. That Respondent performed surgery on Patient F on March 5, 1999, with the diagnosis of L3-4, L4-5, L5-S1 degenerative disk disease. Surgical decompression and fusion was completed posteriorly L3-4, L4-5, L5-S1 with bilateral pedicle screw instrumentation and iliac crest bone grafting. The patient also underwent anterior lumbar interbody fusion with cage fixation apparently at L4-5 and L5-S1 levels as a second stage procedure. The patient nearly immediately in the early post-operative course began to complain of weakness, pain, and numbness in the left lower extremity.
45. That the patient had repeat visits with Respondent, and eventually released from Respondent's care,
46. It is alleged upon information and belief that Respondent failed in treating Patient F, to use reasonable care, skill, or knowledge ordinarily used under similar circumstances, which resulted in Respondent committing malpractice in his treatment of Patient F, a violation of the provisions of NRS 630.301(4).
COUNT NINE
47. The allegations set forth in paragraphs 1 through 46 are incorporated herein as if set out in full.
48. That Respondent performed two surgeries on Patient G, the first surgery being conducted on December 20, 1999, and the subsequent surgery being performed on February 28, 2000, with a pre-operative diagnosis of pseudoarthrosis, who was "status post previous attempt at fusion".
49. It is alleged upon information and belief that Respondent failed in treating Patient G, to use reasonable care, skill, or knowledge ordinarily used under similar circumstances, which resulted in Respondent committing malpractice in his treatment of Patient G.
COUNT TEN
50. The allegations set forth in paragraphs 1 through 49 are incorporated herein as if set out in full.
51. That the combination of the failure of Respondent to use reasonable care, skill, or knowledge ordinarily used under similar circumstances, which resulted in Respondent committing malpractice in his treatment of Patients A through G as alleged hereinabove, evidences a pattern by Respondent of continual failure to exercise the skill or diligence or use the methods ordinarily exercised under the same circumstances by physicians in good standing practicing in the same specialty or field, a violation of the provisions of NRS 630.306(7).
WHEREFORE, the Investigative Committee of the Nevada State Board of Medical Examiners prays that the Nevada State Board of Medical Examiners conduct a hearing on the Complaint as provided by statute, and that the Nevada State Board of Medical Examiners, after such hearing, take such action as may be just and proper, pursuant to Nevada Revised Statutes.
DATED this 22nd day of March 2002.
INVESTIGATIVE COMMITTEE OF THE NEVADA STATE BOARD OF MEDICAL EXAMINERS
Signed
By: JOEL E. LUBRITZ, M.D., Chairman
VERIFICATION
STATE OF NEVADA
COUNTY OF CLARK
JOEL N. LUBRITZ, M.D., under penalties of perjury, being first duly sworn deposes and says:
That he is the Chairman of the Investigative Committee of the Nevada State Board of Medical Examiners; that he has read the foregoing Complaint and knows the contents thereof that the same is true of his own knowledge, except as to those matters therein contained stated upon information and belief, and as to those matters he believes them to be true.
Signed
JOEL N. LUBRITZ, M.D.
VOLUNTARY SURRENDER OF LICENSE TO PRACTICE MEDICINE
IN THE STATE OF NEVADA WHILE UNDER INVESTIGATION
COMES NOW, FRANCIS G. D'AMBROSIO, M.D., the undersigned, who does state, represent and act as follows:
That he is aware that he is under investigation by the Nevada State Board of Medical Examiners for violations of the Medical Practice Act.
That it is his desire to surrender his license to practice medicine in the state of Nevada while under investigation.
Therefore,
Pursuant to the provisions of NAC 630.240, the undersigned, FRANCIS G. D'AMBROSIO, M.D., duly licensed to practice medicine in the state of Nevada, hereby voluntarily, absolutely, and irrevocably surrenders his license to practice medicine in the state of Nevada, said license being No. 6761.
This surrender is subject to all the provisions of NAC 630.240, applicable to voluntary surrender of a license to practice medicine in the state of Nevada.
Attached hereto is license No. 6761 issued to the undersigned.
DATED this 17th day of April, 2002
Signed
FRANCIS G. D'AMBROSIO, M.D.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On this 17th day of April, 2002 before me, a Notary Public in and for said State, personally appeared FRANCIS G. D'AMBROSIO, M.D., known to me to be the person who executed the foregoing instrument, and acknowledged to me that he executed the same for the purposes therein stated.
Signed
Howard R. Spanier Comm. #1307883
FRANCIS G. D'AMBROSIO
M.D.
Diplomate, American Board of Orthopaedic Surgery
Fellow, American Academy of Orthopaedic Surgeons
Diplomate, American Board of Spine Surgery
Fellow, American College of Surgeons
Fellow, American Academy of Disability Evaluating Physicians
23852 Pacific Coast Hwy # 793
Malibu, CA 90265
Phone (310) 457-2183
Fax (310) 457-2133
4/17/02
Mr. Richard Legarza,
In June of 2001 I sent a letter to the Nevada State Board informing them that I did not wish to renew my license. The Nevada State Board wrote back acknowledging my withdraw of my license and at that time I discarded my Nevada license.
Sincerely,
Signed
Francis G. D'Ambrosio M.D.
CME CALENDAR
Cardiovascular Consultants 691-9154
Clark County Medical Society 739-9989
Southwest Medical
Associates 242-7347
Some courses also approved for nursing CEUs.
7/11 - “The Gastroenterologist and Primary Care Partnership,” 7:30 a.m., 1 hour
Sunrise Hospital 731-8210
UMC 383-2604
Valley Hospital 388-4847
7/9 - “Vaginal Births After Cesarean Sections(V-Bacs),” noon
7/23 - “Making the Valley Hospital Web site Work For You and Your Patients,” noon
*Special Note: CCMS members can receive free CME courses on the internet with World Medical Leaders.
To have your CME courses listed on our calendar, please contact Deborah Barton at 739-9989 prior to the deadline of the 12th of each month.
CLARK COUNTY HEALTH DISTRICT DISEASE STATISTICS MAY
2002
DISEASE
CASES REPORTED YEAR TO DATE
5/
2001 5/2002 2001
2002
VACCINE PREVENTABLE DISEASES
DIPTHERIA 0 0 0 0
HAEMOPHILUS INFLUENZA 0 1 1 4
(invasive)
HEPATITIS A 3 0 32 9
HEPATITIS B 1 7 12 19
INFLUENZA 0 2 28 59
MEASLES 0 0 0 0
MUMPS 0 0 1 1
PERTUSSIS 2 1 3 1
POLIOMYELITIS 0 0 0 0
RUBELLA 0 0 0 0
TETANUS 0 0 0 0
SEXUALLY TRANSMITTED DISEASES
AIDS 4 20 64 102
CHLAMYDIA 314 401 1569 1947
GONORRHEA 116 157 680 701
HIV 0 21 40 77
SYPHILIS 0 1 1 5
(Primary & Secondary)
SYPHILIS (Early Latent) 0 1 5 4
ENTERICS
AMEBIASIS 0 1 0 8
BOTULISM-INTESTINAL 0 0 0 0
CAMPYLOBACTERIOSIS 19 11 60 43
CHOLERA 0 0 0 0
CRYPTOSPORIDIOSIS 1 0 2 2
E. COLI O157:H7 2 0 2 4
GIARDIASIS 6 9 42 35
ROTAVIRUS 18 40 281 296
SALMONELLOSIS 12 17 54 69
SHIGELLOSIS 3 2 15 3
TYPHOID FEVER 0 0 0 0
YERSINIOSIS 0 0 0 0
ANTHRAX 0 0 0 0
BOTULISM INTOXIFICATION 0 0 0 0
BRUCELLOSIS 0 0 0 0
COCCIDIOIDOMYCOSIS 1 4 11 14
ENCEPHALITIS 0 0 0 1
HANTAVIRUS 0 0 0 0
HEMOLYTIC UREMIC
SYNDROME (HUS) 0 0 0 0
HEPATITIS C 0 1 0 1
HEPATITIS D 0 0 0 1
LEGIONELLOSIS 0 0 2 0
LEPROSY (HANSEN'S DISEASE) 0 0 0 0
LEPTOSPIROSIS 0 0 0 0
LISTERIOSIS 1 0 4 0
LYME DISEASE 0 0 0 0
MALARIA 0 2 1 3
MENINGITIS,
ASEPTIC/VIRAL 1 6 16 26
MENINGITIS, BACTERIAL 1 1 10 12
MENINGOCOCCAL DISEASE 0 1 4 11
PLAGUE 0 0 0 0
RABIES (HUMAN) 0 0 0 0
RELAPSING FEVER 0 0 0 0
RSV (RESPIRATORY 35 68 1205 1661
SYNCYTIAL VIRUS)
ROCKY MOUNTAIN SPOTTED 0 0 0 1
FEVER
TOXIC SHOCK SYNDROME 0 0 0 0
TUBERCULOSIS 1 5 26 22
TULAREMIA 0 0 0 0
*Numbers include confirmed and probable cases
Classifieds
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- ESTABLISHED INTERNAL MEDICINE Practice for sale. Call 204-8109.
- BANK PROPERTY FOR SALE. (2) AFGA Drystar 3000 Large format dry imager for gray-scale imaging, (1) Biosound AU-3 Ultrasound Imaging System with two probes & a VCR, (1) Matrix Instruments Video Imager. Contact BankWest of Nevada, Jack Mishel at 702-451-0624.
- WANT TO PLACE AN AD? Call Deborah at 739-9989 for details.