Newsletter XXXIV November 2002
Applicants To Go Before Credentialing Committee
HMO Medicaid
and the Obstetrician
Clark County
Health District Disease Statistics – September 2002
We, the
Board of Trustees of the Clark County Medical Society, recognize that medical
care availability has significantly deteriorated in Clark County during the
last year. Unfortunately, we expect this
trend to continue. A major reason for
this deterioration in health care availability is the continuation of the
medical malpractice insurance crisis.
We
appreciate the efforts of the Governor and Legislature in the recent special
session. An overwhelming majority of
Nevadans understand that the new bill passed during this session addressing
this medical malpractice crisis (AB1) was a first step in ensuring we have
doctors in this state, but to fix the system we need additional reforms.
One of the
challenges of the special session included stopping the exodus of physicians
from Clark County, including premature retirements and physicians limiting
their scopes of practice. Since AB1 will
not accomplish these goals, the availability of quality health care in Clark County
will continue to decline. This is
especially true for certain groups of patients, such as pregnant women and the
economically disadvantaged.
As an
example, there has been a marked decline in obstetric physicians in Clark
County during the last year because of soaring medical malpractice insurance
premiums. This has limited the access of
proper medical care for pregnant women, including prenatal care. Obstetricians are now expected to pay, on
average, in excess of $100,000 per year for malpractice insurance, and
Obstetricians are being limited by some insurance companies in the number of
deliveries they can perform per year. We
expect that many more obstetric physicians in the near future will no longer be
able to afford to deliver babies.
This loss
of highly qualified obstetrical care in Clark County will threaten the health
care of pregnant women and their future children and result in a decrease in
the standard of care in Clark County.
This will eventually generate more medical malpractice suits and more
sick infants requiring extremely expensive care in neonatology units. This will further add to the financial burden
of the taxpayers of the State of Nevada.
This will also significantly limit the ability of the state to attract
new residents and tourists thus directly affecting the ability of business
firms to hire new employees. Ultimately,
this will adversely impact our local economy.
Although
obstetrics is the most dramatically affected, all specialties and areas of
medical practice have been impacted.
Crucial surgical specialties, imaging procedures, critical
subspecialties, and primary care, all have their particular areas of risk of
financial ruin.
The Board
believes that the State of Nevada must have meaningful medical liability reform
without exceptions or "loopholes" that prevent insurance companies
from predicting their risk like MICRA (Medical Injury Compensation Reform Act),
which was passed in California 27 years ago.
Under the recently passed medical malpractice tort law AB1, simple
mathematics dictates that insurance companies cannot predict their risk and
loss. Until the State of Nevada achieves
meaningful medical liability reform, the availability of health care provided
to the people of Clark County will continue to deteriorate. Informed residents of Nevada should become
familiar with the provisions of MICRA, which are as follows:
1. A limit of $250,000 per claim for
non-economic damages (pain and suffering) without exception.
2. Restructured attorney fee schedules so
that more of any financial award goes to the plaintiff.
3. Advising juries of collateral source
payments to prevent "double dipping".
4. Periodic payments of future awards.
5. Shortened statute of limitations.
In addition to these, Nevada needs a 6th provision:
6. Elimination of joint and several liability. (Deep pockets)
Medical
care in the Las Vegas area has reached an exceptional level in the last 15
years, mainly because many excellent Board Eligible and Board Certified primary
care physicians and specialist physicians have established practices in the Las
Vegas area. Access to medical care is
now rapidly regressing in Clark County and will continue to deteriorate if the
State government does not pass meaningful medical liability reforms that will
ultimately withstand challenge before the Supreme Court of Nevada.
The Clark
County Medical Society intends to keep attention focused on meaningful medical
liability reform, in the media as well as before the State government. We, as physicians, believe it is our
responsibility to protect the public health of all of the residents of Clark
County. We cannot, and will not, allow
any professional group claiming to protect the rights of the few, while at the
same time enriching themselves, ruin the health care of most.
We do not
accept the threat of "unconstitutionality" of the provisions of
meaningful medical liability reforms that have been found constitutional in
other jurisdictions. We have faith in
the integrity and the political independence of our Nevada Supreme Court
Justices, and we believe they will base their decisions in the law and in the
best interests of the citizens of Nevada.
We, the Board of Trustees of the Clark County
Medical Society, intend to represent, advocate for and protect the public
health at the next Legislative session, commencing in February 2003. Our county is growing at over 90,000 people
per year. Many of these new residents
are older, and we will need to attract qualified physicians to Clark County to
provide further health care.
The Clark County Medical Society endorses and supports the "Keep Our Doctors in Nevada" voter Initiative. We also plan on actively supporting legislators and political candidates who share our goals of preserving access to high quality medical care in Clark County. We intend to protect the health care of the residents of Clark County and will do whatever we can to achieve that result.
Congratulations and
Welcome to the Clark County Medical Society
Daniel L. Burkhead, MD, Pain
Management, 7456 W. Sahara Ave. #101, Las Vegas, NV 89117
James D. Curry, MD, General Surgery, 1111 Shadow Lane, Las Vegas, NV 89102
Aman Dhindsa,
MD, Diagnostic Radiology, 801 S. Rancho Dr. #D-1B, Las Vegas, NV 89106
Wilson H. Huang, MD, Maternal/Fetal Medicine, 400 Shadow
Lane #206, Las Vegas, NV 89106
Ronald M. Kline, MD, Pediatrics, 3059 S.
Maryland Pkwy. #202, Las Vegas, NV 89109
Wayne Wei-Teh Liou,
MD, Diagnostic Radiology, 801 S. Rancho Dr. #D-1B, Las Vegas, NV 89106
David M. Moon, MD, Diagnostic Radiology, 801 S. Rancho Dr.
#D-1B, Las Vegas, NV 89106
Kimberly A. Moseley, MD, General Surgery, 10001 S. Eastern
Ave. #201, Henderson, NV 89052
Philip R. Vaughn, MD, Neonatology/Pediatrics, 620 Shadow
Lane, Las Vegas NV 89106
Monica J. Wall, MD, Internal Medicine, 2200
W. Horizon Ridge Pkwy. #D, Henderson, NV 89052
Stephen M. Wold, MD, Maternal/Fetal Medicine, 400 Shadow Lane #206, Las Vegas, NV 89106
Honorary Membership
Hugo Paulson, MD, Dermatology, CCMS Member since 1973
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
Geoffrey C. Hsieh, MD, OB-GYN
Raimundo F. Leon, MD, Anesthesiology/Pain
Management
Bernard C. Ong, MD, Orthopaedic
Surgery
Wesley J. Robertson, MD, Pediatrics
Kathleen Wairmu, MD, Infectious Diseases
The Clark County Medical Society is saddened to announce the passing of Dr. Ronald S. Oseas. Dr. Oseas, pediatric hematologist/oncologist and member of CCMS since 2000, died on Tuesday, October 1, 2002. He was born Dec. 24, 1946, in Chicago and was a co-founder of Nevada Childhood Cancer Foundation.
By Warren Evins, M.D., PhD, 2002-2003 CCMS President
VOTE
The 2002
General Election will occur on November 5, 2002. Early balloting will run from October 19
through November 1. Remember and support
the four physician CCMS members who are running for Assembly: Garn Mabey, MD Clark County Assembly District (AD) 2, John Ellerton, MD AD 5, Lonnie Hammargren,
MD AD 15, and Joe Hardy, MD AD 20.
Please look at the NEMPAC and MedPAC
endorsements. We need to support
candidates who will work with physicians on our issues of concern. BE SURE THAT YOU VOTE.
PACs
MedPAC is the independent Political Action Committee (PAC)
associated with CCMS. A $200 non-tax
deductible contribution is required to join MedPAC. MedPAC is governed
by a ten-member Board elected biannually: four members are elected by the CCMS
Board of Trustees, four by the MedPAC members, one by
NSMA, and one by the CCMS Alliance. MedPAC invited candidates for interviews. The MedPAC Board
then selected candidates for financial support and endorsement. NSMA's associated
PAC, NEMPAC, is joined with a $100 non-tax deductible contribution. Neither CCMS nor NSMA dues are used to
support political contributions, nor are members of CCMS/NSMA members of the
PACs, unless they have individually joined the PACs. A few CCMS/NSMA members (but not PAC members)
have not supported all endorsements.
Legislative Special
Session
During the
Special Legislative Session two physician assembly candidates, John Ellerton, MD and Lonnie Hammargren,
MD, demonstrated their concern by joining other physicians lobbying for a fair
and meaningful Medical Liability reform bill.
We are grateful to Governor Kenny Guinn and the Nevada State legislature
for passing some needed reform measures.
Our goal was to get the State of Nevada to enact most of the provisions
of the Nevada Medical Liability Physicians Task Force's proposal for Nevada
tort reform patterned after California's Medical Injury Compensation Reform Act
(MICRA), which has worked successfully in California for 27 years.
Keep Our Doctors in
Nevada PAC
CCMS
participated in organizing the Keep Our Doctors in Nevada PAC and in writing
the Initiative proposal. We praise the extraordinarily hard work of the CCMS
Alliance and other participants in supporting Medical Liability reform.
Registered
voters representing at least 10% of the votes cast in each county in the 2000
Nevada general election must sign the Initiative. No fewer than 13 of Nevada's 17 counties must
meet this 10% requirement. The
Initiative will be on the 2004 Nevada general election ballot, if the 2003
legislature does not adopt its provisions.
Trial lawyers may submit competing or "poison pill" measures
to appear on the same ballot.
Both CCMS
and NSMA support the Initiative.
Continuing financial support of this PAC will be crucial for its
success.
Keep our Doctors in Nevada
P.O. Box 50154
Henderson, NV 89016
Tax ID # 47-0889225
The Initiative proposes
to:
1. Limit Runaway
Lawyer Fees
Those injured deserve their award - not trial lawyers. "Keep Our Doctors in Nevada" limits
lawyers' fees to 40% of the first $50,000, 33.3% of the next $50,000, 25% of
the next $500,000 and 15% of everything over $600,000.
2. Stop "Double
Dipping"
"Keep Our
Doctors in Nevada" ensures juries are told BEFORE a verdict - when damages
or medical expenses are already covered by insurance carriers or other parties
- to stop "double dipping" and restore fairness to our system.
3. Extend Payments
"Keep Our Doctors in Nevada" says that rewards
over $50,000 will be paid through regular installments, instead of a lump sum.
4. Stop Exceptions
"Keep Our Doctors in Nevada" strengthens the
$350,000 limits on non-economic damage awards - the real key to lowering
medical malpractice rates and restoring fairness to our system.
5. Create "Fair
Share" Liability
"Keep Our Doctors in Nevada" makes sure defendants
found liable pay damages in proportion to their fault - no more, no less.
Membership in
CCMS/NSMA
Medical Liability reform is very important to our membership. The 2003 Legislature is likely to consider important issues including: a gross revenue tax on doctors' practices, insurance and managed care physician payment limitations, medical error reporting revisions, stricter rules eliminating provider panel fees, etc. Physicians need to be members in order to have an effective voice at the Legislature.
By the Clark County
Ob-Gyn Society
Managed
care Medicaid has shown a recent rapid growth over the United States. According to HCFA 2000, there was a 40%
increase in Medicaid recipients that were covered with managed care Medicaid
during the 1990s. HMO Medicaid
represented only 10% of the Medicaid recipients in 1991 and now represents as
many as 56% of all recipients. The main
reason for this change in the Medicaid structure was due to desire for cost
control. In the early 80's, a six
percent increase in annual cost was noticed in the healthcare sector. Importantly, most of this increased cost is
apparently from disabled and the aged populations. In the private sector in the later 80's and
early 90's, there was considerable success in the area of cost control in the
private sector from managed care.
Medicaid soon followed this lead and in 1993 to 1996 was the biggest
increase in total Medicaid beneficiaries covered under an HMO type of program.
Additionally, another factor for the move to HMO Medicaid was to provide access
through case management and gatekeepers coordinating care. This appears to be a good model for people
with chronic disease requiring ongoing management. However, this is unlike the disease model
encountered in pregnancy that is a short-term process where delays can result
in worsening outcome.
Currently,
40% of all Medicaid births are covered by managed care Medicaid. The study of the effects of HMO Medicaid on
health outcomes in this population is exceedingly rare. Being that Medicaid programs historically
have poor access relative to private insurance, this switch to an HMO model for
pregnancy is somewhat counterintuitive.
Indeed, the implementation of the HMO Medicaid program for pregnancy in
Nevada has occurred prior to its impact on health outcomes being known. Kestner has
evaluated the data prior to 2002 on HMO Medicaid and pregnancy outcomes in a
report by the National Bureau of Economic Research. The pre-2002 studies are minimal and have
been shown by this Kestner to have severe
methodological research flaws or are too small to evaluate for any significant
effect. Moreover, previous studies on
pregnancy do not compare an HMO Medicaid group to a current fee-for-service
Medicaid group. Therefore, obstetricians
have been dealt a transfer to HMO Medicaid in the absence of scientific
information on the true effect of HMO Medicaid on pregnancy and pregnancy
outcomes.
It is
important to note that low and very low birth weight babies are the most
important factor to evaluate in regards to most pregnancy outcomes. This is because this category of infants has
significant early, as well as prolonged, lifelong problems. For example, an infant born at 24 weeks may
have a survival rate of 50% but may have a major handicap rate as high as
75%. These handicaps involve such
debilitating diseases as cerebral palsy, mental retardation, blindness, chronic
lung disease, and severe learning disability.
Furthermore, neonatal costs have accelerated to the point of being
approximately $2,500 to $5,000 a day.
Prior to 30 weeks of gestation, each day a fetus is kept in utero saves approximately three days for the infant in the
neonatal intensive care unit if born. It
is further important to note that $.17 of every insurance dollar over the
United States is spent on neonatal intensive care unit costs. In contrast, only $.03 of every insurance
dollar is spent on high-risk pregnancy care.
The limitation of access to prenatal care and spending on prenatal care
is well known and dramatic. The
Institute of Medicine stated that each dollar spent on prenatal care saves
$3.34 in neonatal care. Additionally,
the American Academy of Pediatrics states that every dollar spent on prenatal
care saves at least $2.00 and may save as much as $10.00 in overall long term
pediatric costs. An increasing burden on neonatal intensive care unit costs by
Medicaid patients also may have another insidious effect. Due to Medicaid paying less than most private
insurance plans for neonatal care, private plan costs may be raised as a way
for making up low Medicaid reimbursement as found in an article in 1992 from
The Journal of Pediatrics by Dr. Immershein.
Recently,
in May of 2002, a study from the National Bureau of Economic Research (NBER)
funded by a grant from the Robert Wood Johnson Foundation looked at a large
number of patients in an HMO Medicaid program versus a fee-for-service Medicaid
program for pregnancy outcomes. They
examined the years from 1990 to 1996.
This study was extremely well controlled and corrected for outcomes
based upon demographics including age, race, education, marital status, medical
risk factors and reproductive history.
Previous studies lacked these multiple controls or presented only
smaller sample sizes. The NBER study
measured the number of prenatal visits, preterm birth rate, low birth weight of
less than 2500 grams and cesarean section rates. These factors are not the "be all, end
all" in regards to healthcare but can give an overall snapshot of
care. This study found prenatal care visits
were roughly unchanged, although they did decrease 2% in the HMO Medicaid
groups. Strikingly, however, low birth
rate deliveries were increased by 25% and preterm birth rate was also increased
by 25%. The authors of the study tried
multiple data analyses to find omitted variables that may explain this finding
but could not readily account for this finding.
Furthermore, there was no change in the cesarean section rate in the HMO
Medicaid population.
Within
Nevada, the obstetrician/gynecologist has been a targeted specialty. Professional liability rates have skyrocketed
200% to 300% in this specialty.
Additionally, providers, at times, have taken up to a 33% discount from
HMO Medicaid companies in providing total obstetrical care. This does not count the additional added
burden of authorization, benefits checking, and payment history requiring
increased billing personnel and close follow up. Furthermore, there have been attempts by
managed care programs to change the rules of CPT coding to try to place global
charges upon non-low-risk pregnancies.
Hence, for most obstetricians, the provision of prenatal care and
delivery, especially to high-risk patients is becoming a money-losing
proposition. Adding more fuel to the
fire is the distrust of Nevada obstetricians for a program that applies only to
the Clark County area, the reasoning being that if this were such an
advantageous program, it would be provided to every county within the Nevada
region.
Overall,
HMO Medicaid has most importantly been found to increase the occurrence of poor
birth outcomes when compared to fee-for-service Medicaid. These low birth weight and preterm births
increase neonatal intensive care unit costs and increase long term costs of childhood
care. These dollars are a major cost to
insurance plans. This increase in poor
birth outcome is a reason for a possible shift of costs to private plans making
private plans less affordable.
Additionally, the low reimbursement in women's health care (HMO Medicaid
programs included) combined with the recent high rate in professional liability
insurance has led to an exodus of obstetricians from the Silver State. The combination of the aforementioned
problems with the increased burden and costs of provider service to an HMO plan
has been a major downfall. This is not
to say that HMO Medicaid plans do not have a place in our society. In fact, they have appeared in multiple
studies to lower costs in the aged and chronically ill populations. However, pregnancy does not appear to be a situation
similar to that and it appears that an HMO Medicaid environment may worsen
outcomes for pregnant mothers and their children in our state.
Pregnancy, especially, appears to be a special situation that HMO Medicaid may cause a worsening outcome and increase costs financially within our society. This, in addition to the increased burden and costs, as well as decreased reimbursement, has led to a disproportionate effect upon obstetricians/gynecologists. Lastly, within our state, 55% to 75% of patients do not even receive care until their 28th week of pregnancy when in an HMO Medicaid program (Division of Healthcare financing and policy memorandum - January 2001). In contrast, only 25% of the entire population of Nevada has this poor record in access -probably much of this is made up by the HMO Medicaid population (Nevada Kid's count data). Within the United States, the American College of Obstetricians and Gynecologists has named Nevada the worst place in the United States to practice obstetrics and gynecology. The exodus of the obstetricians appears to continue due to this multiplicity of factors. It appears a step in the right direction would be to carve out HMO Medicaid and revert this back to a fee for service outcome, not only for increased reimbursement and decreased costs to providers, but more importantly, to provide improved outcomes for the children of Nevada.
By Karen Schroeder, 2002-2003
CCMS Alliance President
Recently I had the
pleasure of attending Confluence in Chicago.
Confluence is the American Medical Association Alliance's national
training and networking meeting.
President-elect Annette Mohs and I attended
the meeting together and came back with a wealth of knowledge and many
ideas. We attended sessions on a variety
of topics including and not limited to:
a) Living in a Smoke-Free America
b) Bullying-Creating Worthwhile Programs
c) 101 Ways to Get and Keep Your Members
d) Strategic Planning
e) Parliamentary Procedure
f) Health Literacy
g) Youth Drug Use and Abuse
h) Positive Media Coverage
Some of our ideas include bringing a national speaker to a
membership dinner; implementing a mentoring program for our members, and
keeping our communications open with the media.
Any spouse
thinking about joining our Alliance board would have the opportunity to attend
this type of meeting, which is held twice a year in Chicago. During this dynamic conference, Annette and I
had the opportunity to speak with many women from across the United
States. An interesting underlying theme
is the need for TORT reform nationally.
Vast majorities of
Alliances are making a difference in their communities by educating children in
the elementary schools. Shaping up;
preparing for life subjects are taught to third, fourth, and fifth graders
including "hands are not for hitting; bullying; tobacco free; teen suicide; and television violence"
to name a few. Therefore, my appeal is
to those spouses who would like to make a difference in the health of our
community. Let’s act on our obligation
to the people of Clark County.
Currently we are supporting the Kids to Kids program. This program asks us to donate new and used children's books, which will be given to children in our "at risk" elementary schools. Each child will select books for their very own. Some children have taken books below their reading level so that they may help their mothers learn to read. Now that gives me goose bumps; how exciting to be a part of something so special. Come help us, I await your call.
State Legislation: Uniform
Law Commissioners Approve Act Allocating Tort Responsibility
Reprinted with the permission of the ATLA Advocate, October
2002
In August,
the National Conference of Commissioners on Uniform State Laws (NCCUSL) approved
the Uniform Apportionment of Tort Responsibility Act, which establishes several
liability as the general rule for allocating
responsibility in tort actions. Under several liability,
each defendant is responsible for only the portion of damages attributed to
that defendant.
Established
in 1892, the NCCUSL comprises more than 300 commissioners. Each state has a
commission, as do the District of Columbia, Puerto Rico and the U.S. Virgin
Islands.
The
conference's mission is to determine which areas of law should be uniform and
draft statutes in these areas. Commissioners then work toward passing these
acts in their jurisdictions.
Although
many states have either abolished or modified joint and several liability -
under which each defendant that has been found liable may be held responsible
for the entire damages award - a few states and the District of Columbia
continue to apply this doctrine.
The NCCUSL's uniform apportionment act provides for joint and several liability only in limited circumstances, such as when defendants acted in concert or intended to cause personal injury or harm to property, or when a state statute requires joint and several liability.
By Weldon (Don)
Havins, M.D., J.D., CCMS CEO and Special Counsel
A.B. 1, the product of the recent
special session of the Legislature, provides for an expansion of the Good Samaritan
laws in Nevada. Subsection 4 of Section
1.5 provides that a licensed physician or dentist (licensed in Nevada or
holds an equivalent license) who is retired or otherwise not full-time,
who renders gratuitous medical care to an indigent person is not
liable for civil damages (medical negligence) for an act or omission not
amounting to gross negligence or recklessness, or willful or wonton conduct. One key phrase requires that the physician be
licensed. A retired physician who
relinquishes all his or her medical licenses cannot render such gratuitous care
to an indigent. However, if the hypothetical
physician relinquished his or her medical license in
Subection 5 of Section 1.5 of A.B. 1 provides that a
In common in these subsections is the term “gratuitous.” Gratuitous means that the person receiving care or assistance is not required or expected to pay any compensation or other remuneration for receiving the care or assistance.
“Indigent person” is not defined in
AB 1. Nevada Revised States 428 deals
with indigent persons. The board of
county commissioners determines whether a person qualifies as an indigent
person. NRS 428.015 requires the county
commissioners to adopt an ordinance delineating the means of determination of
medial indigency.
The relevant
Generally, to qualify for medical assistance as an indigent in Clark County, the person: must be a resident of Clark County; have an income less than $13,980 per year; own assets less than $2,000 (individual) or $3,000 (couple); and, not currently receiving covered services through any other source. Some assets, such as a primary residence, are considered “allowable disregards” and are not considered as a disqualifying asset. Evaluation and quantification to determine eligibility fall, normally, under the jurisdiction of the Department of Social Services. Successful applicants are provided with a card indicating they are medically indigent. Covered services include UMC prescription drug coverage, UMC outpatient clinic are, inpatient hospital care, durable medical equipment, and radiology/laboratory services. These medically indigent persons pay no deductible and no copayment.
How may a retired physician, or a physician practicing “other than full-time,” wishing to help the medically indigent know that a particular patient is medically indigent for the purposes of A.B. 1? The short answer is: the physician can’t know the patient is a qualifying indigent for the purpose of A.B. 1 because “indigent person” is not defined in A.B. 1. However, one might reasonably assume that if the patient qualifies as a medically indigent under the Clark County Department of Social Services criteria (possesses a medical indigent County card), the patient would be indigent for the purposes of A.B. 1. If the person has not previously qualified as medically indigent, physicians will find it difficult to make that critically important determination. When a retired or other than full-time physician renders medical services an indigent, that physician receives civil liability damages protection under A.B. 1. Those same gratuitous medical services provided to a non-indigent provides no protection from civil liability damages for medical negligence.
One might
conclude that the very good intentions in subsection 4 are not of practical
benefit to the retired or other than full-time physician unless that physicians can reliably determine the qualifying
indigence of the patient. Legislators
promoting the provision of gratuitous medical care to
SHOULD
LIABILITY INSURERS OR THEIR INSUREDS
CONTROL
SETTLEMENTS WITHIN POLICY LIMITS?
By the CCMS
publications staff
From a
District Court lawsuit recently filed in Las Vegas, the facts alleged, if
proven, alone provide a compelling case for insurance reform in the upcoming
legislative session. This case involves
a highly regarded local doctor suing St. Paul Insurance Company and her
initially assigned medmal defense attorney. Some names are obfuscated for subjectively
sensitive reasons. However, interested
individuals can read the entire file, which is public information, at the District
Court Clerk's Office, 200 S. Third St., third floor, during normal business
hours. The case file number is
02-A-455864. One can also follow the
course of this case on the District Court Clerk's web site, www.co.county.nv.us,
under Civil Case Inquiry.
Facts alleged and
causes of action pleaded in the Compliant:
Plaintiff
purchased a policy of medical malpractice insurance coverage from Defendants
St. Paul which Defendants St. Paul represented would provide Plaintiff with
insurance coverage and protection in the amount of $1,000,000.00 per person per
claim in the event that a claim of medical malpractice or professional
negligence were made or filed against Plaintiff during the term of the
insurance contract or policy. This policy is referred to herein as the St. Paul
policy.
In March
1997, Plaintiff, together with Dr. F, performed surgery on a patient named
Josephine Fasolini. Dr. F performed a bladder
suspension while Plaintiff repaired Mrs. Fasolini's
vaginal vault prolapse. Mrs. Fasolini
had complications post-surgery and filed a claim of medical malpractice against
Plaintiff with the Medical-Dental Screening Panel. The claim was filed during
the time in which the St. Paul policy was in effect.
Plaintiff
tendered the claim to St. Paul for defense and coverage under the St. Paul
policy. St. Paul concluded that the claim was covered by the St. Paul policy
and assigned to its defense counsel Attorney X to defend Plaintiff in
connection with the claim made by Mrs. Fasolini.
Attorney X
assumed Plaintiff's defense and assured Plaintiff that he would honestly,
aggressively and competently represent her interests in the Fasolini
claim.
The finding
of the Medical-Dental Screening Panel was inconclusive with regard to the
liability of Plaintiff for medical malpractice in connection with the Fasolini claim.
Plaintiff
understood that Mrs. Fasolini intended to pursue the
claim of medical malpractice through the court system and became concerned
about the financial exposure with same. Plaintiff asked Attorney X to request
that St. Paul authorize settlement of the claim on her behalf. Attorney X did
not.
Plaintiff
then hired her own private counsel, Henry H. Rawlings, Jr., Esq., who sent a
letter dated July 24, 2000 to St. Paul giving St. Paul formal notice of Plaintiff's
request that St. Paul settle the Fasolini case within
or at the $1,000,000.00 St. Paul policy limit. St. Paul ignored Mr. Rawlings'
demand for settlement.
On August
23, 2000, Mrs. Fasolini and her husband filed their
lawsuit in District Court against Plaintiff. Attorney X continued to represent
Plaintiff and named Dr. F as a third-party defendant in the action.
Attorney X
then, without authority from Plaintiff, stipulated to stay the proceedings
against Dr. F. Plaintiff insisted that the action against Dr. F be pursued
rather than stayed as she believed Dr. F was responsible for the damages
claimed by Mrs. Fasolini. When Plaintiff made her
concerns known to Attorney X, he became irate and abusive to Plaintiff.
Attorney X
intentionally failed to disclose, and in fact concealed from, Plaintiff that he
had, while representing Plaintiff, aggressively discussed and entered into a
financial/business arrangement with counsel for the Fasolinis,
whereby Attorney X arranged for the Fasolinis'
counsel to act as co-counsel at trial of a significant injured baby medical
malpractice case which Attorney X was then litigating. Upon information and
belief, that financial/business arrangement was consummated in December, 2001
or earlier.
Once
Plaintiff complained about Attorney X's demeanor and abuse directed towards
her, Attorney X filed a Motion to Withdraw from further representation of
Plaintiff using Plaintiff's complaints as an excuse to withdraw all the while
continuing to conceal his conflict of interest and willful breach of fiduciary
duty to Plaintiff.
Unaware of the conflict and breach of fiduciary duty which
Attorney X concealed, Plaintiff opposed Attorney X's Motion filed on January
11, 2002 with trial set to commence on March 26, 2002.
Plaintiff
repeatedly advised Attorney X that she wanted to settle the Fasolini
case within the St. Paul policy limits.
On January 14, 2002, Fasolini's
counsel offered in writing to settle the Fasolini
case for the St. Paul Policy limit of $1,000,000.00. The letter was faxed to
Attorney X with the admonition that it must be accepted by January 24, 2002. Fasolini's counsel had verbally offered to settle the case
within policy limits a number of times previously without success.
On January
17, 2002, Attorney X's Motion to Withdraw was granted
by the Court. Attorney X waited until January 22, 2002 to have his associate
forward the letter from the Fasolini's counsel to St.
Paul indicating that the Offer to settle would expire in two days. St. Paul did not accept the Offer to settle
the Fasolini case and thereafter refused to negotiate
a settlement with Fasolini's counsel.
Plaintiff
became distraught over St. Paul's refusal to abide by her wishes and refusal to
effectuate a fair and reasonable settlement of the claim which she understood
created a significant financial exposure for her.
Plaintiff
also became distraught over the way in which her defense had been mishandled by
Attorney X as well as his unexplained abrupt and abusive behavior. Plaintiff
contacted St. Paul directly regarding her concerns and spoke with St. Paul's
adjuster, Karen Erickson regarding same. Plaintiff virtually begged Ms.
Erickson to settle the case all to no avail.
It became
clear to Plaintiff that St. Paul did not care about her interests or financial
exposure and she had no alternative but to once again engage private counsel in
an effort to document St. Paul's misconduct.
St. Paul
was again contacted directly and through counsel on numerous occasions insisting
that the Fasolini case be settled at or within policy
limits. These demands fell on "deaf ears" as well.
Plaintiff
delivered her first child on July 14, 2002. Trial of the Fasolini
case was scheduled to commence on August 6, 2002 and jury selection commenced
on that date. At that time, Fasolini's counsel once
again attempted to settle the case within Plaintiff's policy limit but the St.
Paul's adjuster, Erickson, refused to even negotiate.
It was
clear to those observing the trial as it progressed that it was not going well
for the defendant doctor (Plaintiff). The defendant doctor (Plaintiff)
continued to request that St. Paul attempt to settle the case but it was
ignored by Erickson and St. Paul.
St. Paul's
adjuster Erickson sat through the trial monitoring its certain demise and
refused to open settlement discussions. Instead, Erickson repeatedly referred
to the case as the "teeny weeny Pussolini" case even in public places.
On August 15, 2002, the jury returned the verdict in the Fasolini case wherein the jury awarded $4,000,000.00 to Mr.
& Mrs. Fasolini, far in excess of Plaintiff's
$1,000,000.00 St. Paul policy.
Plaintiff,
who had done everything within her power to get St. Paul to settle the Fasolini case, had by virtue of St. Paul's conduct, become
the subject of a media frenzy and front page news. Plaintiff's reputation has
been forever damaged as news of the $4,000,000.00 verdict became known around
the world.
First Cause of Action
(Bad Faith/ Tortious Breach of Covenant of Good Faith and Fair Dealing Against St. Paul Defendants)
St. Paul
had exclusive control of the claim made by the Fasolini's
against Plaintiff, negotiations for settlement thereof, as well as the defense
of the suit.
In
consideration for the exclusive control and management of the claim,
negotiations for settlement, and defense of the suit, St. Paul had the duty to
conduct itself with a reasonable degree of care, skill, and diligence with
respect thereto. It did not do so.
For the
protection of Plaintiff's interests, St. Paul had the duty to select honest and
ethical lawyers and to report promptly to the Plaintiff any offers for
settlement of the Fasolini's claim. St. Paul did not
do so.
A covenant
of good faith and fair dealing was implied in the St. Paul policy insurance
contract between Plaintiff and St. Paul.
St. Paul failed to deal fairly and in good faith with Plaintiff by
refusing without proper cause to negotiate or even attempt to negotiate a fair
and equitable settlement of the Fasolini case and
refusing to pay the Fasolini's claim within or at
policy limits.
St. Paul
knew of Plaintiff's precarious financial position and the risk associated with
forcing Plaintiff to go through trial when liability was reasonably clear. St.
Paul's refusal to negotiate in good faith and refusal to pay monies under the
St. Paul policy was unreasonable at best.
St. Paul
had an actual or implied awareness of the absence of any reasonable basis for
denying payment of monies pursuant to the St. Paul policy and/or acted with
reckless disregard as to the unreasonableness of its denial.
Upon information and belief, St. Paul made the decision to
refuse to settle the Fasolini's claim against
Plaintiff regardless of its merits.
As a direct
and proximate result of St. Paul's bad faith and breach of the covenant of good
faith and fair dealing, Plaintiff has suffered and sustained damages in an
amount well in excess of $10,000.00 together with incidental and consequential
damages so wrongfully incurred and suffered by Plaintiff as a result of St.
Paul's above-referenced conduct as well as severe emotional distress, anxiety,
anguish, depression, humiliation, and damage to her reputation.
St. Paul's
conduct described herein was done with heedless and reckless disregard for
Plaintiff's rights and welfare, and the same was done intentionally,
maliciously and with wanton disregard for Plaintiff's rights, in an attempt to
oppress, defraud or be malicious to Plaintiff. Accordingly, pursuant to NRS
42.005, Plaintiff is entitled to punitive and or exemplary damages against St.
Paul in order to punish St. Paul and to serve as an example to others engaged
in such conduct that such conduct will not be tolerated.
Second Cause of
Action
(Violation of Nevada
Unfair Insurance Practices Act - NRS 686A.310 Against
St. Paul Defendants)
St. Paul
engaged in unfair practices in violation of the Nevada Unfair Insurance
Practices Act, NRS 686A.310 by its conduct set forth herein. St. Paul's unfair
insurance practices in violation of NRS 686A.310 including, but not limited to,
the following:
(c) Failing to adopt and implement reasonable standards for
the prompt investigation and processing of claims under insurance policies; and
(e) Failing to effectuate prompt, fair and equitable
settlements of claims in which liability of the insurer has become reasonably
clear.
As a direct
and proximate St. Paul's unfair insurance practices in violation of NRS
686A.310, Plaintiff has suffered and sustained damages in an amount well in
excess of $10,000.00 together with incidental and consequential damages so
wrongfully incurred and suffered by Plaintiff as a result of St. Paul's
above-referenced conduct as well as severe emotional distress, anxiety,
anguish, depression, humiliation, and damage to her reputation.
St. Paul's
conduct described herein was done with heedless and reckless disregard for
Plaintiff's rights and welfare, and the same was done intentionally,
maliciously and with wanton disregard for Plaintiff's rights, in an attempt to
oppress, defraud or be malicious to Plaintiff. Accordingly, pursuant to NRS
42.005, Plaintiff is entitled to punitive and or exemplary damages against St.
Paul in order to punish St. Paul and to serve as an example to others engaged
in such conduct that such conduct will not be tolerated.
Third Cause of Action
(Breach of Fiduciary
Duty - Against All Defendants)
Attorney X,
as attorney for Plaintiff, owed a fiduciary duty to Plaintiff.
St. Paul,
as Plaintiff's insurer, owed a fiduciary duty to Plaintiff.
Defendants,
and each of them, breached and tortiously breached
their fiduciary duties to Plaintiff by their actions, conduct and omissions set
forth herein.
As a direct
and proximate result of Defendants' breach and tortuous breach of fiduciary
duties owed to Plaintiff, Plaintiff has suffered and sustained damages in an
amount well in excess of $10,000.00 together with incidental and consequential
damages so wrongfully incurred and suffered by Plaintiff as a result of St. Paul's
above-referenced conduct as well as severe emotional distress, anxiety,
anguish, depression, humiliation, and damage to her reputation.
Defendants'
conduct described herein was done with heedless and reckless disregard for
Plaintiff's rights and welfare, and the same was done intentionally,
maliciously and with wanton disregard for Plaintiff's rights, in an attempt to
oppress, defraud or be malicious to Plaintiff. Accordingly, pursuant to NRS
42.005, Plaintiff is entitled to punitive and or exemplary damages against
Defendants in order to punish Defendants and to serve as an example to others
engaged in such conduct that such conduct will not be tolerated.
Fourth Cause of
Action
(Intentional
Infliction of Emotional Distress - Against All Defendants)
Defendants
acted intentionally and/or recklessly in engaging in the conduct set forth
herein; Defendants acted with reckless indifference to the fact that their
conduct was certain to cause Plaintiff severe emotional distress; Defendants'
actions and conduct as set forth herein were extreme and outrageous so as to go
beyond all possible bounds of decency in a civilized community; and Defendants'
actions caused Plaintiff to suffer severe emotional distress.
As a direct
and proximate result of Defendants' intentional infliction of emotional
distress, Plaintiff has suffered and will continue to suffer extreme and severe
physical, emotional and psychological injury, distress and damages in an amount
in excess of $10,000.00
Defendants'
conduct described herein was done with heedless and reckless disregard for
Plaintiff's rights and welfare, and the same was done intentionally,
maliciously and with wanton disregard for Plaintiff's rights, in an attempt to
oppress, defraud or be malicious to Plaintiff. Accordingly, pursuant to NRS
42.005, Plaintiff is entitled to punitive and or exemplary damages against
Defendants in order to punish Defendants and to serve as an example to others
engaged in such conduct that such conduct will not be tolerated.
Fifth Cause of Action
(Negligence/ Legal
Malpractice - Against Attorney X)
As attorney
for the Plaintiff, Attorney X owed legal and professional duties to Plaintiff.
Attorney X breached is duties owed to Plaintiff, was negligent and committed
malpractice including, but not limited to:
a. Failing to effectively represent Plaintiff in the Fasolini matter and irreparably prejudicing her defense by
his actions/inactions;
b. Failing and refusing to communicate with Plaintiff in a
professional manner;
c. Failing to avoid and subsequently concealing and refusing
to disclose his conflict of interest involving his business/financial
relationship with counsel for the Fasolini's;
d. Failing to avoid a conflict of interest between St. Paul
and Plaintiff; and
e. Failing to take steps to prevent exposure of Plaintiff's
personal assets in the Fasolini case.
As a direct
and proximate result of Attorney X's negligence/legal malpractice, Plaintiff
has suffered and sustained damages in an amount well in excess of $10,000.00
including, but not limited to, severe emotional distress, anxiety, anguish,
depression, humiliation, and damage to her reputation.
Sixth Cause of Action
(Violation
of Nevada RICO Statute - NRS 207.350 et seq.)
At all
relevant times referenced above, Defendants St. Paul Fire & Marine and St.
Paul Medical formed and association-in-fact. This association-in-fact
constituted an "enterprise" within the meaning of NRS 207.380.
The St.
Paul Defendants operated the "enterprise" with the intent to and
result of obtaining money by false pretenses from Plaintiff and other
physicians similarly situated to Plaintiff by inducing them to part with
substantial premiums for medical malpractice insurance coverage and alleged protection
based upon St. Paul's explicit and implicit assurances that St. Paul would act
fairly and in good faith with its insureds and place
its insureds' interests above their own financially
motivated interests. The St. Paul Defendants obtained money under false
pretenses by concealing from Plaintiff and other physicians similarly situated
that St. Paul never intended to protect the physicians but was instead simply
seeking to maximize its profits and intended to play "Russian
Roulette" and subject Plaintiff and other physicians similarly situated to
her to the risk of personal exposure, financial ruin, embarrassment and
humiliation associated with refusing to negotiate a fair and reasonable
settlement and instead forcing physicians to go through trial even when the
physicians evaluate a case as having significant risk and demand that
settlement be effectuated within their policy limits.
At all
relevant times referenced above, the St. Paul Defendants'
"enterprise" was engaged in and its activities were crimes related to
racketeering as defined in NRS 270.360 and racketeering activity as defined by
NRS 207.390.
At all
relevant times referenced above, the St. Paul Defendants conducted or
participated in the conduct of the enterprise's affairs through a "pattern
of racketeering activity" within the meaning of NRS 207.390.
At all
relevant times referenced above, the St. Paul Defendants engaged in a
"pattern of racketeering activity" within the meaning of NRS 207.390
by engaging in acts and conduct set forth above and those set forth in NRS
207.360, subsection (26) obtaining possession of money by means of false
pretenses, NRS 205.380, and potentially other subsections of NRS 207.360 which
may be discovered through the course of discovery in this case.
The racketeering
activity referenced above constitutes a "pattern of racketeering"
within the meaning of NRS 207.350, et seq. The acts alleged are related to each
other by virtue of common participants, common victims, and a common result.
As a direct
and proximate result of the St. Paul Defendants' violations of NRS 207.400,
Plaintiff is entitled under NRS 207.470(1) to three (3) times the actual
damages sustained by Plaintiff as well as her attorney fees and costs of
investigation and litigation.
Seventh Cause of
Action
(Negligence - Against
St. Paul Defendants)
As
Plaintiff's insurer, St. Paul Defendants owed Plaintiff a duty to use
reasonable care and to act reasonably in all respects including, but not
limited to, in their claims investigation, handling of claims made against
Plaintiff, monitoring of cases, evaluation of cases and attempts to effectuate
settlements and resolution of claims and/or cases filed against Plaintiff.
St. Paul
Defendants breached their duty to Plaintiff as set forth herein and by acting
unreasonably and failing to use due care in their claims investigation,
handling of the Fasolini claim made against
Plaintiff, monitoring the Fasolini case, evaluation
of the Fasolini case and utter lack of effort or
attempt to effectuate a reasonable settlement and resolution of the Fasolini claim and/or case filed against Plaintiff.
As a direct
and proximate result of St. Paul Defendants' negligence, Plaintiff has suffered
and sustained damages in an amount well in excess of $10,000.00 including, but
not limited to, severe emotional distress, anxiety, anguish, depression,
humiliation, and damage to her reputation.
WHERFORE,
Plaintiff respectively requests relief as follows:
a. A trial by jury on all issues;
b. All damages as allowed by law including compensatory and
general damages in excess of $10,000.00;
c. Special damaging according to proof at the time of trial;
d. For treble damages, attorney fees and costs pursuant to
NRS 207.470(1) against the St. Paul Defendants for their violation of NRS 207.400;
f. For all interest and costs
allowed by law;
g. For exemplary or punitive damages against Defendants in
whatever amount is deemed appropriate to punish and deter Defendants and all
others from engaging in any such unlawful conduct in the future;
h. For a judgment to be entered in this case for oppressive
conduct which provides for a legend on said judgment that "said judgment
be non-dischargeable in any bankruptcy proceeding"; and
i. For such other and further
relief as the Court may deem just and equitable.
DATED this 4th day of September, 2002.
Gage & Gage, LLP
By Noel A. Gage, Esq
Nevada Bar No. 6305
Ivy Gage, Esq.
Nevada Bar No. 5958
City Center West, Suite 500
7251 W. Lake Mead Boulevard
Las Vegas, NV 89128-8348
(702) 869-0800/(702) 869-0900 (fax)
Attorneys for Plaintiff
Noel Gage earned an M.D. after
obtaining his J.D. Noel and his spouse
Ivy are prominent members of the legal community.
Their firm primarily represents
plaintiffs.
November 2 – Big Brothers Big Sisters of Nevada “The Big
Gala,” at Caesars Palace
November 5 – Election Day
November 16 – “Blow the Whistle on Asthma” Walk at the UNLV
McDermott Center. Call 431-3590 on information about setting up teams and
challenges.
January 11 – CCMS and CCMS Alliance Dinner
featuring speaker Donald J. Palmisano, MD,
President-elect of the American Medical Association. Details
to follow.
January 13 to January 16 – CCMS Mini-Internship Program. Please call Deborah Barton at 739-9989 for details or if you’d like to host an “intern” in your office.
·
Cardiovascular Consultants 691-9154
·
Clark County Medical Society 739-9989
·
Merck & Co., Inc. (800) 737-2088 ID #43754
11/13 - “Postmenopausal Osteoporosis Issues: The Women’s
Health Initiative (WHI) and Other Clinical Studies,” 7:00 p.m.
·
Southwest Medical Associates 242-7347
11/14 - “Low Back Pain: A Focused Approach to Diagnosis and
Treatment,” 7:30 a.m.
12/12 - “Office Dermatology,” 7:30 a.m.
·
Sunrise Hospital 731-8210
·
UMC
383-2604
·
Valley Hospital
388-4847
11/12 - “Orthopedic Office Procedures,” noon
11/26 - “Congestive Heart Failure,” noon
12/10 - “Suicide: Recognition and Attempted Prevention
(Medical Ethics),” 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.
DISEASE CASES REPORTED YEAR TO DATE
9/ 2001 9/2002 2001 2002
VACCINE PREVENTABLE DISEASES
DIPTHERIA 0 0 0 0
HAEMOPHILUS INFLUENZA 0 3 3 8
(invasive)
HEPATITIS A 3 2 43 17
HEPATITIS B 4 6 28 33
INFLUENZA 0 0 28 59
MEASLES 0 0 1 1
MUMPS 1 1 3 3
PERTUSSIS 0 4 3 22
POLIOMYELITIS 0 0 0 0
RUBELLA 0 0 0 0
TETANUS 0 0 0 0
SEXUALLY TRANSMITTED DISEASES
AIDS 17 26 116 190
CHLAMYDIA 405 429 3023 3387
GONORRHEA 220 148 1362 1258
HIV 13 18 91 134
SYPHILIS 1 0 2 7
(Primary
& Secondary)
SYPHILIS (Early Latent) 0 0 5 4
ENTERICS
AMEBIASIS 0 0 3 14
BOTULISM-INTESTINAL 0 0 0 0
CAMPYLOBACTERIOSIS 12 8 112 88
CHOLERA 0 0 0 0
CRYPTOSPORIDIOSIS 0 0 4 2
E. COLI O157:H7 1 0 5 11
GIARDIASIS 18 16 96 76
ROTAVIRUS 22 4 376 337
SALMONELLOSIS 17 15 110 136
SHIGELLOSIS 14 15 51 27
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 6 18 29
ENCEPHALITIS 0 0 0 2
HANTAVIRUS 0 0 0 0
HEMOLYTIC UREMIC
SYNDROME (HUS) 0 0 0 0
HEPATITIS C 0 0 0 3
HEPATITIS D 0 0 0 1
LEGIONELLOSIS 0 1 3 3
LEPROSY (HANSEN'S DISEASE) 0 0 1 0
LEPTOSPIROSIS 0 0 0 1
LISTERIOSIS 0 0 4 0
LYME DISEASE 1 0 2 0
MALARIA 0 0 1 3
MENINGITIS,
ASEPTIC/VIRAL 12 17 52 75
MENINGITIS, BACTERIAL 1 2 15 20
MENINGOCOCCAL DISEASE 2 0 6 14
PLAGUE 0 0 0 0
RABIES (HUMAN) 0 0 0 0
RELAPSING FEVER 0 0 0 0
RSV (RESPIRATORY 21 35 1298 1829
SYNCYTIAL
VIRUS)
ROCKY MOUNTAIN SPOTTED 0 0 0 2
FEVER
TOXIC SHOCK SYNDROME 0 0 0 1
TUBERCULOSIS 7 8 53 45
TULAREMIA 0 0 0 0
*Numbers include confirmed and probable cases
·
EQIPMENT WANTED: Nevada Coalition Against Sexual Violence seeks a used exam table, with
stirrups/good condition. Tax deductible. Contact Jodi Tyson (702) 940-2033.
·
FOR LEASE - MEDICAL OFFICE Del Webb Medical Plaza in Green
Valley. Approx. 2335 sq. ft., turn key with four exam rooms, one procedure
room, and nice decor. Call Connie at 702-951-0770.
·
OFFICE SPACE AVAILABLE at St. Rose Siena Campus
Del Webb Medical Plaza. Seeking a second physician to share 2000 sq. ft.
office. Please call Patricia at 260-7707.
·
FIFTH FLOOR OFFICE SUITES Attractive fifth floor office suites
in Class “A” building, located at 1701 W. Charleston, near UMC. Suite 500
includes 8 large and 3 small offices, 6 secretarial bays, a large conference
room, a kitchen and a marble entry/reception area. Suite 550 includes 4 large
and 1 small offices, a secretarial bay, a kitchen and a conference room.
$1.80/sf per month on full services lease. Ample covered parking available for
monthly fee. Panoramic view of city, mountains and the Las Vegas Strip. Minutes
from state and federal courts, city and county government buildings. Call Carol
(702) 385-3801.
·
ESTABLISHED INTERNAL MEDICINE Practice for sale.
Call 204-8109.
·
GYN WANTED TO SHARE VIP OFFICE: In Green Valley
by Anthem/Seven Hills. Office & exam rooms at minimal cost -- in truly
elegant setting. Ideal for new practice or to lower overhead costs. Call
419-8256.
· MEDICAL OFFICE SPACE For Lease/Time Share - New building, ready to move in, fully furnished, approx 1200 sq. ft. on a busy street in Green Valley, ideal for pediatric subspecialties