The readers of this publication do not need to be told that the lack of affordable professional liability insurance in Nevada constitutes a crisis. The media have been full of dueling full page ads and press releases featuring injured patients and fleeing physicians. In the recent special session, our state legislature addressed this crisis by passing Assembly Bill 1. While a step in the right direction, the legislature's remedy will probably prove inadequate to relieve the crisis.

To offer affordable coverage, an insurer needs a measure of predictability. Only when risk can be reliably predicted can the insurer gauge how much it will need to charge its customers to provide enough income to pay claims and expenses, and provide a reasonable return to investors. In the last five years, the severity of medical malpractice jury awards has climbed sharply, both nationally and in Clark County. Predictably, insurers have reacted by raising rates and becoming a great deal more selective about which doctors they will cover. The St. Paul, the nation's largest insurer of physicians, has concluded that it can no longer profitably offer professional liability insurance to doctors at rates that doctors can afford to pay. The St. Paul abandoned the market entirely.

If the goal of a tort reform measure is to increase the availability and affordability of coverage, it must restore some measure of predictability and reduce the risk faced by insurance carriers. This article will address some of the ways in which Assembly Bill 1, though a start, will most likely fail to do this. Other aspects of Assembly Bill 1, including its extensive new requirements for the reporting of adverse outcomes and its protections for doctors involved in the care of trauma patients, are not addressed, though they are certainly worthy of further study.

When is a Cap Not a Lid?

The portion of AB 1 which has received the most attention places a cap on non-economic damages awardable in a malpractice action. This would seem to give insurers what they need to lower your rates. However, the statute as presently enacted makes application of the cap so unpredictable that it is not at all clear whether there will be a material change in the risk to insurers and doctors. This is because the statute allows the cap to be "stacked" where there are multiple plaintiffs or multiple defendants and because the exceptions to the cap are so broad that it will be impossible to know whether or not the cap applies until after trial. Finally, the statute is written so that any salutary effect the cap does have will not be felt for several years to come.

Section 5(1) of the bill states that "in an action for damages for medical malpractice or dental malpractice, the non-economic damages awarded to each plaintiff from each defendant must not exceed $350,000." (Emphasis added) The more plaintiffs there are, the larger the cap, because each plaintiff gets his or her own cap. Since few of us are truly alone in life, most claims with serious adverse outcomes are going to come with enough plaintiffs to multiply the $350,000 cap to two or three times that amount. Moreover, the cap can also be stacked with multiple defendants.

Section 5(3) of the bill does limit this somewhat by providing that so long as the doctor has coverage limits of $1,000,000 per claim and $3,000,000 aggregate, his or her total liability to all plaintiffs may not exceed his or her coverage limits. However, this is no great help to the insurer. So long as there are two or more plaintiffs, it will still pay out most or all of its policy if the doctor is liable, just like it does now.¹ More importantly, this limit does not apply to economic damages. If economic damages, which include past lost income, future loss of earning capacity, and future cost of care as well as medical bills, are more than $1,000,000, as they often are in the highest exposure cases, the doctor's personal assets are still exposed to an excess judgment. This means that the insurer has to settle, if possible, in order to avoid that exposure, or risk paying a judgment far in excess of its limits.

Section 5(2) specifies two exceptions to the cap, which further erode the predictability necessary to bring about a decrease in rates or increase in availability. The cap will not apply to "a case in which the conduct of the defendant is determined to constitute gross malpractice" or where after a verdict by a jury or a finding of damages in a bench trial, "exceptional circumstances" are found to justify an award of non-economic damages in excess of $350,000. These exceptions are likely to make it impossible to tell if a cap even applies until after a jury has heard the case.

With respect to the "gross malpractice" exception, predictability will be sacrificed to the great liberality with which Nevada courts allow claims to go to the jury. Under our law, any claim supported by even the smallest amount of arguable evidence will not be dismissed, but must be presented to a jury. In practice, courts are reluctant to dismiss any but the most harebrained legal or factual theory. "Gross malpractice" is defined as a "failure to exercise the required degree of care, skill, or knowledge that amounts to: (a) a conscious indifference to the consequences which may result from the gross malpractice; and (b) a disregard for and indifference to the safety and welfare of the patient." A creative plaintiff's attorney can argue that nearly any situation where clinical judgment is questioned constitutes a doctor's conscious indifference. Since this sort of argument is very effective in getting a jury whipped up enough to award big dollars, it already shows up in many cases. It would not be surprising if nearly every complaint filed under the new statute has a count of gross malpractice. Where such an accusation is made, it will be rare that it is dismissed before going to a jury.

Likewise, the "exceptional circumstances" exclusion takes away the predictability that a cap might otherwise have brought. The statute is utterly silent as to what sort of exceptional circumstances might justify a departure from the cap. To those involved, every case is exceptional-without further guidance as to which exceptional circumstances are worthy of negating the cap, trial lawyers are free to argue, and judges are free to agree, that nearly every claim is exceptional. One is reminded of Garrison Keillor's village of Lake Woebegone, where all the children are above average. It is unlikely that the state Supreme Court will do much to change this outcome. The Court has generally been reluctant to write specific limits into a statute when the legislature has not chosen to do so; where a statute gives great leeway to the trial judge, the Court almost never second guesses or overturns the judge's exercise of discretion. No one will ever know if a case has exceptional circumstances until after a verdict, when the trial judge has nearly unlimited discretion to decide that it does.

Finally, the damage caps set out in AB 1 come with a subtle but important clause which will delay their implementation, and any reduction in risk to insurers, for years. The effective date of the new statute is October 1, 2002. However, the cap does not apply to claims filed after the effective date. Instead, it applies to claims accruing after October 1, 2002. "Accrue" is a legal term of art: a claim is said to accrue when all of the elements necessary to make a claim are present. In the medical malpractice context, a claim accrues at the time a breach of the standard of care causes injury to a patient. If malpractice occurs and causes injury on September 30, 2002, the resulting lawsuit will not be subject to the cap even though it may not be filed for another two to three years. Under this implementation provision, any positive effect the cap might have will not show up for several years.

In for Dimes or Dollars?: AB 1 and Joint and Several Liability

The Legislature made an effort to revise the archaic doctrine of joint and several liability that today is only followed in a minority of jurisdictions. This doctrine can best be explained by the old adage, "in for a dime, in for a dollar." In other words, each defendant who is found liable is responsible for the full amount any verdict awarded, regardless of the extent of the defendant's culpability. Traditionally, the plaintiff decides from whom to collect the verdict. Indeed, plaintiff's counsel may deliberately choose not to sue all of the possible tortfeasors contributing to a claim, but only proceed against those where the plaintiff's case is the strongest. The problem, of course, arises where a co-defendant is rendered financially incapacitated (i.e., without insurance and/or bankrupt), so that the other defendants must pay the entire verdict, even if they are far less culpable. The stated purpose of the joint and several liability doctrine is to shift the risk of insolvency of a joint tortfeasor from the innocent plaintiff to the other joint tortfeasor. This is also one rationale of why comparative fault by the plaintiff typically destroys joint and several liability, i.e., the Plaintiff is no longer an "innocent" participant.

Unfortunately, the legislature only saw fit to repeal this archaic doctrine as it applies to non-economic damages, i.e., pain and suffering, inconvenience, physical impairment, and disfigurement, as defined by statute. For economic damages, joint and several liability remains in place. For example, take a case where Defendant "A" is found to be 90% liable and Defendant "B" is 10 % liable. Assume that the jury awards non-economic damages in the total amount of $350,000 (to be paid by both defendants). So, Defendant "A" owes $315,000 (90% of $350,000) and Defendant "B" owes $35,000 (10% of $350,000). But also suppose that the jury awards economic loss of 1.5 million dollars ($1,500,000) for a total jury verdict of 1.85 million dollars ($1,850,000). Defendant "A"'s liability is capped at $1 million ($1,000,000). Defendant "B" must then pay the balance of the award, $850,000, even though this far exceeds her equitable share of the liability. This is because per the statute, nothing limits the Plaintiff's ability to collect the total economic damages awarded from any defendant, even if the amount collected exceeds the defendant's one million dollar policy of insurance.

The problem with the new legislation, therefore, is that although it may destroy joint and several liability for non-economic damages, it may also provide leverage to plaintiff's counsel in settling cases where there are extensive economic damages. Defendant physicians who are arguably less culpable than other defendants but who are involved in cases where there are significant economic damages, remain at risk for bearing greater than their proportionate share of the jury verdict and will be forced to settle cases where they bear minimal culpability.

This risk can be avoided in cases where it can be argued that the plaintiff was partially (the legal term is comparatively) at fault for his or her injuries. Unfortunately, that defense is not often available in malpractice cases, especially those involving surgical mishaps: it's hard to argue a anesthetized patient contributed to his or her injuries unless there is clear failure to follow medical advice. It's also difficult to argue that a patient contributed to an injury by failure to live a healthy life: even though a patient's coronary artery disease might have resulted from years of Marlboro's and Big Macs, failure to diagnose the problem and provide whatever help medical science might have offered is still the doctor's fault if the failure occurred because the standard of care was breached.

Stop Me Before I File Again: AB 1's Impact on the Statute of Limitations

In cases filed before October 1, 2002, the current statute of limitations applies. The current statute permits a claim to be filed two years from the date that the plaintiff knew or should have known he had a legal injury, but no more than four years from the date of the event. Basically, the statute of limitations is always construed in favor of the plaintiff. A legal injury does not merely include knowledge that something wrong occurred, but also knowledge that the wrong is related to a breach of the standard of care. Arguably, this knowledge does not occur until the plaintiff has retained an expert to support his claim. The four year statute (a statute of repose) is typically not meaningful. There are few cases filed beyond two years from the date the plaintiff knew or should have known of an injury. The new legislation substitutes a two year/three year statute, which shortens the statute of repose by one year. It is difficult to ascertain whether or not this will have a significant impact on reducing the number of cases filed, since again, most plaintiffs follow the two year rule. Overall, shortening the statute of repose by one year will probably not have a significant impact on either the number of cases filed or the ability to successfully argue a motion to dismiss based on statute of limitations, since judges are highly reluctant to grant these motions.

The Screening Panel: Is the Head Dead Yet?

AB1 administers capital punishment to the Medical Dental Screening Panel. Unfortunately, the mode of execution chosen by the legislature is akin to being hung, drawn, and quartered: it involves a good deal of mess while unduly prolonging the subject's demise.

If the Medical Dental Screening Panel has not rendered a finding on a case before October 1, 2002, it is unlikely that case will receive a Panel finding. Plaintiffs' attorneys are permitted to opt out of the Panel after October 1, 2002 and before December 1, 2002, if they have not received a Panel finding by October 1, 2002. If a plaintiff's attorney wishes to stay in the Panel, the attorney must provide written notification to the Department of Insurance of this desire. If the plaintiff has not opted in by December 1, then he or she is automatically opted out of the panel process. This is likely to result in a large influx of new medical malpractice cases in the Clark County District Court and some resulting delay in moving these cases towards resolution.

If the plaintiff's attorney elects to remain in the Panel, then the statute of limitations is tolled until thirty days after the Panel finding, which is the current law. If the plaintiff's attorney elects to opt out of the Panel process, then the statute of limitations is tolled until December 1, 2002, after which time the statute commences to run. Most plaintiffs are likely to opt out of the panel procedure unless the case is a "slam dunk," where a finding of malpractice is very likely. However, for all current cases pending in the Department of Insurance, where defendants have not filed an answer, it is anticipated that the plaintiffs' attorneys will not opt out of the Panel process until they receive defendants' answers for informational purposes. It is anticipated that the majority of the Plaintiffs bar will choose to opt out of the Panel and proceed directly to court, primarily to expedite their cases.

So, Where do you Stand?

Assembly Bill 1 does a lot of things: it will change the way malpractice cases are litigated in this state and impose extensive reporting requirements on doctors and hospitals. Unfortunately, what it won't do is result in any near-term relief for doctors squeezed by high insurance premiums. If such relief is essential, more must be done to create a legal environment which allows carriers to predict their risk and insure against it at rates doctors can afford to pay. At a minimum, the cap on non-economic damages should have fewer loopholes and the abolition of joint and several liability should be extended to economic damages. We would also like to see the collateral source rule further modified. Under the rule as now applied, a jury is not entitled to know if the plaintiff's medical care providers have taken substantial discounts under managed care agreements, leading to unfairly inflated awards. As these measures would also limit recovery by innocent victims of real malpractice, some consideration must be given to the difficult questions of increasing disclosure of complication rates and malpractice claims and limiting contingency fees so as to insure a fair return to trial lawyers while maximizing recovery by those injured by malpractice.

¹ Also beyond the scope of this article is the potential that these limits may be found unconstitutional. The idea of limiting liability to the amount of insurance purchased is novel, placing the insurance “cart” before the liability “horse,” and may not be warmly received by the Nevada Supreme Court.

Bonnie Bulla and Daniel Curriden are both licensed Nevada attorneys and are partners in the Law Office of V. Andrew Cass, affiliated with Broening, Oberg, Woods, Wilson, and Cass, where they represent physicians and other healthcare providers. The opinions expressed in this article are theirs and not to be attributed to their law firm or its partners.

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Plaintiff View: A Plaintiff Lawyer Explains AB 1

By Richard A. Harris, Managing Partner, Mainor and Harris, Lawyers

The 18th Special Session of the Nevada State Legislature culminated in the passage of Assembly Bill 1 which made significant changes to medical malpractice law. The majority of the measure is effective October 1, 2002 and applies to professional negligence which occurs on or after that date.

Total Immunity for Treatment in Governmental or Nonprofit Facilities

New amendments provide that any licensed physician who renders care at a health care facility of a governmental entity or a nonprofit organization is not liable for any civil damages if the care or assistance is rendered gratuitously, in good faith, and in a manner not amounting to gross negligence or reckless, willful, or wanton conduct.

$50,000 Cap on All Damages for Emergency Care

The new law limits civil damages in certain emergencies to no more than $50,000 for any claimant. The limit applies to parties that in good faith render care or assistance made necessary by a "traumatic injury" demanding immediate medical attention, for which the patient enters the hospital through its emergency room or trauma center. A "traumatic injury" is defined as any acute injury, which, according to standardized criteria for triage in the field, involves a significant risk of death or the precipitation of complications or disabilities. The parties affected by this limit include:

A hospital;
An employee of a hospital who renders care or assistance to patients;
A physician or dentist who renders care or assistance at a hospital, whether the care is gratuitous or for a fee.

This limitation on liability does not apply:

If there is gross negligence or reckless, willful, or wanton conduct;
To any act or omission in rendering care or assistance occurring after a patient is stabilized, unless surgery is required within a reasonable time after stabilization; and
To any act or omission in rendering care or assistance that is unrelated to the original traumatic injury.

$350,000 Cap on Non-economic Damages

The bill establishes a $350,000 limit on the amount of non-economic damages that may be awarded to each plaintiff from each defendant in a malpractice action. Non-economic damages are defined to include damages for pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damages. Economic damages are defined as damages for medical treatment, care or custody, loss of earnings, and loss of earning capacity.

The exceptions to the $350,000 cap on non-economic damages apply when the conduct of the defendant is grossly negligent or the court determines by clear and convincing evidence at trial that an award in excess of $350,000 for non-economic damages is justified because of exceptional circumstances.

In all cases of medical malpractice the amount of damages awarded to the plaintiff may not exceed the amount of money remaining under the professional liability insurance policy limit covering the defendant after subtracting the economic damages awarded to the plaintiff. In addition, a single defendant cannot be held liable for non-economic damages in an amount that exceeds the defendant's professional liability insurance policy limit even if there is more than one plaintiff.

In order for physicians to obtain the benefit of the $350,000 cap on non-economic damages they must maintain professional liability insurance of not less than $1 million per occurrence and not less than $3 million in the aggregate.

Several Liability

Medical defendants are no longer jointly liable for the total amount of non-economic damages. The measure provides that each defendant is individually liable for non-economic damages only to the extent of that defendant's percentage of negligence.

Statute of Limitations

The bill shortens the statute of limitations for commencing an action for injury or death that occurs after October 1, 2002, from 4 years to 3 years, or 2 years after the plaintiff discovers or should have discovered the injury, whichever occurs first.

Screening Panel Dissolved

Laws creating the Medical-Dental Screening Panel have been repealed. Malpractice cases may proceed directly to District Court. Complaints must now be accompanied by an affidavit submitted by a qualified medical expert supporting the allegations. Transitory provisions are set forth to address cases filed with the Screening Panel where a decision has not been made prior to October 1, 2002. A claimant is deemed to have opted out of the Screening Panel process unless a written request is received before December 1, 2002.

Pretrial Settlement Conferences

Settlement conferences are to be held before a judge other than the judge assigned to the case. Each plaintiff, defendant, representative of the physician's insurer, and each of their respective attorneys must attend and participate in the settlement conference. The judge presiding at the settlement conference must decide what information the parties may submit. The failure of any party, his insurer, or his attorney to participate is grounds for sanctions.

Expediting Trials

Cases filed between October 1, 2002, and October 1, 2005, must be dismissed if they are not brought to trial within 3 years unless good cause is shown for a delay. Cases filed on or after October 1, 2005, will be dismissed unless brought to trial within 2 years.

District courts are required to adopt rules on or before March 1, 2003, to expedite medical malpractice trials.

Expert Medical Testimony

Expert medical testimony may only be given by a medical care provider who practices or practiced in an area substantially similar to the type of practice engaged in at the time of the alleged negligence.

Periodic Payment of Future Damages

Future economic damages awarded may, at the request of the claimant, be paid in periodic payments by an annuity or other means if the defendant posts an adequate bond or other security to ensure full payment.

Special Training for Trial Judges

The measure requires the Supreme Court of Nevada to provide for training of each judge to whom actions involving medical malpractice are assigned.

Sanctions

Judges are now required, rather than just allowed, to make an attorney who files a civil action or raises a defense that is not well grounded, or who unreasonably and vexatiously extends a civil action, pay the additional costs, expenses and attorney's fees incurred because of such conduct.

Malpractice Reporting Requirements

Effective July 1, 2003, the Board of Medical Examiners must submit to the Governor and the Director of the Legislative Counsel Bureau a written report compiling disciplinary actions taken by the Board during the previous biennium against physicians for malpractice or negligence. Additionally, the Court Administrator of the Supreme Court of Nevada must submit to the Governor and the Director of the Legislative Counsel Bureau a written report compiling the information pertaining to physicians found liable for malpractice submitted by the clerks of the courts. These reports must include aggregate information for statistical purposes and exclude any identifying information.

The measure strengthens and expands requirements for physicians, now including osteopathic physicians, and their insurers to report to licensing boards and the Commissioner of Insurance actions that could be grounds for discipline, as well as all actions filed or claims submitted to arbitration or mediation for malpractice or negligence against the physician. The measure also requires similar reports from the clerks of the courts.

Medical Error Reporting

Additionally, Assembly Bill 1 requires reporting of "sentinel events" at medical facilities to the Health Division of the Department of Human Resources. A "sentinel event" is defined as an unexpected occurrence involving death or serious physical or psychological injury or the risk thereof, including any process variation for which a recurrence would carry a significant chance of a serious adverse outcome. The term includes the loss of a limb or function. An employee of a medical facility must report "sentinel events" to the facility's patient safety officer within 24 hours. Medical facilities must also notify patients affected by a sentinel event within 7 days. Within 13 days, the patient safety officer must report the sentinel event to the Health Division. However, any documentation of the notification is inadmissable as evidence in any subsequent legal proceeding.

The Health Division must safely and confidentially maintain reports of sentinel events. If the Health Division receives notice from a medical facility that it has taken corrective action to remedy the causes or contributing factors of a sentinel event, the Division must make a record of the information and ensure that the information is aggregated.

The Division must also contract with a quality improvement organization to analyze and report trends regarding sentinel events. The findings of the organization regarding its analysis of aggregated trends of sentinel events must be forwarded to the new Repository for Health Care Assurance. The Repository serves as a clearinghouse of information relating to aggregated trends of sentinel events.

Patient Safety Plans and Committees

The measure requires medical facilities to develop internal patient safety plans in consultation with licensed health care professionals at the facility, which must be submitted for approval to the facility's governing board. Compliance with the plan is a condition of employment at the facility. Medical facilities must also establish patient safety committees to meet monthly. Each committee must receive reports relating to patient safety, make recommendations to reduce the number and severity of sentinel events, and report quarterly to the facility's governing body.

Whistle-blower Protections

Finally, Assembly Bill 1 includes "whistle-blower" protections for employees of medical facilities and physicians, who report either: (1) a sentinel event to the Health Division; or (2) grounds for initiating discipline or information that raises questions regarding a physician's competence to a physician licensing board. The bill prohibits the medical facility or physician from retaliating or discriminating against an employee for these actions and from restricting the rights of an employee to make these reports or participate in any related investigation.

Conclusion

Although there is disagreement whether the damage-limiting provisions will withstand constitutional scrutiny, the measure's effect on streamlining the litigation process is welcomed by doctors, lawyers and patients alike.

Richard A. Harris, Esq., Managing Partner, MAINOR HARRIS, LAWYERS, 801 S. Fourth Street, Las Vegas, NV 89101, rharris@mainorharris.com

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Referral Tallies

The following referrals were provided to CCMS members in the third quarter of 2002 (through September 15)

Specialty Referrals

Addiction Medicine 1

Allergy 1

Anesthesiology 2

Cardiology 15

Cardiovascular Surgery 2

Colon & Rectal Surgery 3

Dermatology 14

Diagnostic Radiology 1

Endocrinology 8

Family Practice 31

Gastroenterology 8

General Surgery 3

Geriatrics 2

Gynecologic Oncology 0

Hematology 1

Infectious Medicine 2

Internal Medicine 26

Nephrology 1

Neurology 8

Neurosurgery 5

Ob-Gyn 199

Oncology 4

Ophthalmology 6

Oral/Maxillofacial Surg. 0

Orthopaedic Surgery 7

Otolaryngology 3

Pain Management 2

Pathology 1

Pediatrics 4

Ped. Endocrinology 0

Ped. Surgery 0

Physical Med/Rehab 1

Plastic Surgery 12

Preventative Medicine 0

Psychiatry 14

Pulmonology 5

Radiology 1

Rheumatology 10

Toxicology 0

Urology 5

Vascular Surgery 2

Totals 410

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New Members

Congratulations and Welcome to the Clark County Medical Society New Members for August 2002

Armen A. Hovanessian, MD, Diagnostic Radiology, 2020 Palomino Ln. #100, Las Vegas, NV 89106

David P. Marmaduke, MD, Pathology, 3059 S. Maryland Pkwy. #100, Las Vegas, NV 89109

Michael W. Schunk, MD, Diagnostic Radiology, 2020 Palomino Ln. #100, Las Vegas, NV 89106

Jonathan S. Strauss, MD, Pathology, 4230 Burnham Ave., Las Vegas, NV 89119

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Member Applicants

Applicants To Go Before Credentialing Committee

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

Ruben J. Acherman, MD Pediatrics/ Pediatric Cardiology

Teresa T. Charniga, MD Family Practice

Francis Ellyin, MD Family Practice

Morris Schaner, DO Diagnostic Radiology

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President’s Message

By Warren Evins, M.D., PhD, 2002-2003 CCMS President

The 2002 primary elections have just ended. Legislative races are very important. There are still four physicians running for State Assembly seats. Garn Mabey (R) is in District 2 (2000 party registration data show 3100+ [11.5%] more registered republicans). John Ellerton (D) is in District 5 (600 more republicans, using 2000 registration data [supplied by the Nevada State Legislature] or 2.5%). Joe Hardy (R) is in District 20 (3500 or 15.1% more republicans). They all have very good chances of winning, but are still potentially in tight races. Lonnie Hammargren (R) is running in District 15, a predominantly Democratic district (3000+ or 14.1% more democrats). I cannot remember when there were two physicians in the State Assembly at the same time.

The race in the new US Congressional District 3 between Clark county commissioner Dario Herrera (D) and State Senator John Porter (R) is very competitive (Data from the Las Vegas Review Journal earlier this year indicate that there were about 1100 more registered republicans in this district.). Both have agreed to support the medical society's top congressional issues: 1. Federal medical liability tort reform, 2. Patients' bill of rights, 3. Medicare fee formula changes and fee cut rollbacks, 4. Medicare drug benefit, and HIPAA changes. Shelley Berkley, the wife of nephrologist Larry Lehrner, is running for re-election in Congressional District 1, where there are about 33,000 more registered Democrats (Las Vegas Review Journal data from earlier this year) than Republicans.

The medical societies have occasionally endorsed candidates in judicial races. Most of the District and Family Court Judge races this year are uncontested. However, AB-1 (the 2002 Legislative Special Session's Malpractice Liability reform bill) requires: 1. District court judges who try medical liability cases should receive special training and 2. Fast tracking of medical liability cases should occur. Personal injury plaintiff's attorneys who try medical liability cases are unlikely to be sympathetic to doctors' interests. Judicial rulings can easily affect jury decisions. Fair and impartial rulings, fair limitations of plaintiff's requests for delaying continuances and postponements, etc. are crucial to fair trials, which all physicians deserve. Bill Voy, vying for the Department 10 District Court Judge's seat is the son of family practitioner Robert Voy. Sandy Smagac, who is running for the Department 20 seat has been a malpractice defense attorney.

NEMPAC and MEDPAC, the state and county medical society political action committees (PACs), are recommending candidates in many other races. They will distribute their names, probably by fax, after all of the interviews have been conducted. The candidates recommended have been supportive of most physician issues and have a reasonable chance of winning the election with our support. Vote for, work for, and financially support your candidates. Perhaps, your spouse, patients, and office staff can also help.

Both of the medical societies PACs still need funding.

The deadline for voter registration for the general election in of November 5 is October 5. Please be sure that you and your family, office staff, and patients are registered and that you all vote. Early voting in this general election begins October 19th. In the primary election more people voted by absentee and early ballot (10/19 to 11/1/02 for the general election), than on Election Day.

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Alliance Message

By Karen Schroeder, 2002-2003 CCMS Alliance President

As I planned my year as President of CCMSA I had envisioned a year of intense health education for the people of Clark County; a time when we as a group could give back to our community. Never ever did I believe it was going to look like the medical malpractice issue we are facing today.

As many of you know the calling tree was instituted very early this year to secure volunteers to help us help CPON (Concerned Physicians of Nevada). A resilient few Alliance members, their friends, and families worked very hard to spread the word about MICRA (Medical Injury Compensation Reform Act) and collect signatures from voters in Clark County. This was accomplished through a letter writing campaign that precluded the political action kits that were distributed with postcards in them saying "Help Me Keep My Doctor". A booth was set up at the Galleria mall to secure voter signatures, register citizens to vote, give out bumper stickers, and answer the public's questions. Doctors were interviewed by Sunny 106.5 FM in the Doctor A Day Information Campaign. Findlay Saab -Oldsmobile and Sunny 106.5 FM collaborated with our efforts to establish a "MOUNTAIN OF MAIL". A Saab was filled with the postcards and presented to our legislative people just before they went to the Special Session. The last count I heard was 85,000 signatures!!! Now THAT is a mountain of mail!

The Special Session is over and we are at a beginning of meaningful laws to protect our spouses as they practice medicine. It is, however, more important than ever to concentrate our efforts on those campaigns that will be effective in moving our legislation onward for a safer more medically secure Nevada. I urge each and every one of you to donate time to these campaigns: walk with the candidates, attend their rallies, and donate funds to secure these people a seat in Carson City. Come out and help us help ourselves. It is OUR grassroots campaign.

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CEO Editorial

By Weldon (Don) Havins, M.D., J.D., CCMS CEO and Special Counsel

For years, Nevada physicians have wanted medical liability reform patterned after California's MICRA (Medical Liability Compensation Reform Act of 1975). There is general agreement in the medical community, both in Nevada and nationally, that the California medical liability reform laws, including MICRA, have created a stable medical liability insurance environment for the last 27 years. California's enviable high quality medical care is facilitated by the availability and affordability of medical malpractice insurance premiums.

After October 1, 2002, how similar will be Nevada's law and California's laws affecting medical liability?

1. Cap on non-economic damages

California (CA) - MICRA provides a $250,000 cap on non-economic damages per injury. There are no exceptions to the cap.

Nevada (NV) - Nevada provides a $350,000 cap on non-economic damages to each plaintiff from each defendant. Nevada law will effectively provide for "stacking" of the $350,000 limit in cases of more than one defendant. There are two exceptions to the $350,000 cap on non-economic damages: (a) gross malpractice, and (b) when the judge determines, after the jury verdict, that there is "clear and convincing evidence" of "exceptional circumstances" justifying elimination of the $350,000 cap. If the physician was, at both the time of the negligent conduct and the time of filing of the lawsuit, carrying minimum $1 million/ $3 million medical liability policy limits, non-economic damages cannot exceed the policy limits (after taking into account the economic damages). Some plaintiff attorneys contend the relevant amount of money available for non-economic damages is the $3,000,000 figure since that is the aggregate amount of the policy, and AB 1 uses the term "aggregate" as to limits of damages. Undoubtedly, this contention will be litigated. If the Nevada Supreme Court upholds the larger amount as the aggregate limit, medical liability insurance premiums will escalate immediately to cover this additional liability not previously available to plaintiffs in a single case.

2. Joint and Several Liability

CA - MICRA contains no provision regarding Joint and Several liability. Joint and Several liability laws were established by public initiative in California: Joint liability ("deep pocket") applies for economic damages; several liability applies (percent of fault only) for non-economic damages.

NV - AB 1 adopted the same law as California's.

Existing Nevada law (NRS 41.141) provides for the abrogation (elimination) of Joint and Several Liability in the case of comparative negligence of the plaintiff.

3. Collateral Sources Information Admissibility to Jury

CA - Under MICRA, the defendant may present to the jury evidence of collateral sources paid to the plaintiff for the injury.

NV - AB 1 did not change the Nevada law. Nevada law does not permit the jury to hear evidence of collateral sources of payment to the plaintiff.

4. Statute of Limitations

CA - MICRA provides that an action for medical malpractice be filed within 1 year from the date of injury, or the date from which a reasonably prudent person would have known of the injury, up to 3 years.

NV - AB 1 changed Nevada's law to 2 years from the injury and 3 years total (from 2 years/ 4 years). This does not materially change the state of limitations in Nevada since injury is apparent at the time of occurrence of the negligent conduct in the great majority of cases. Hence, the 2 years is the critical time.

5. Notice of Intent to Sue

CA - MICRA provides a 90-day notice of an intent to sue for medical malpractice.

NV - Nevada has no such provision. A Nevada physician will know he or she is being sued for malpractice when the process server hands him or her the medical malpractice complaint and summons. The physician will have 20 days to file an answer in court, or the physician will be subject to a default motion filed by the plaintiff.

6. Limitation on Attorney Contingency Fees

CA - MICRA provides for a maximum sliding scale attorneys can receive in contingency fees in medical malpractice cases.

NV - Nevada has no limitation on attorney contingency fees.

7. Mandatory Binding Arbitration

CA - MICRA provides for voluntary mandatory binding arbitration contracts for resolution of medical malpractice disputes.

NV - Nevada adopted the Uniform Arbitration Act in 1990.

Application of this act to voluntary binding medical arbitration agreements has not been challenged in the Nevada Supreme Court. Arbitration agreements, as with any contracts, are unenforceable if coerced or if signed under duress.

8. Fast-tracking of Medical Malpractice Cases

CA - California law provides for the fast tracking of all civil cases. Judges have a duty, under the Trial Delay Reduction Act, to process 90% or more of their civil cases through their court within one year. In San Diego County and Orange County, more than 95% of medical malpractice cases are settled or at trial within one year of filing the medical malpractice case in their court of general jurisdiction (Superior Court in California).

NV - Nevada's AB 1 provides for a three year "fast-tracking" of medical malpractice cases until October 1, 2005, when the "fast-tracking" will be reduced to two years. While this length of time to trial marks an improvement over the horribly congested civil trial calendar in Nevada courts, the persisting relatively long wait for trial, compared to California, reduces the predictability of losses so critically important to insurers (to accurately gauge premiums).

In summary, not a single provision of California's MICRA was adopted into Nevada law by AB 1. AB1 of the legislative special session has passed and been signed into law by the Governor. The full text of the bill can be read online and downloaded from the legislative counsel bureau website at: www.leg.state.nv.us and from the NSMA website at: www.nsmadocs.org

Is AB 1 sufficiently "meaningful medical liability reform" such that it will stabilize medical professional liability premiums and then lower those premiums?

No one knows for certain, but it appears unlikely. There is speculation on whether the Nevada Supreme Court will or will not uphold various provisions of AB 1. Until the Nevada Supreme Court rules on the provisions of AB 1, prudent insurers will not rely upon those provisions in setting medical liability insurance premiums. Speaking with executives of various medical liability insurers in Nevada, one becomes aware that there are no plans for significant reductions in medical liability premiums.

Contrarily, in July 2002 alone, the insurance commissioner approved rate increases of 50% within Clark County and 15% outside Clark County for The Doctors Company. Medical Protective Company was approved for a 65% increase in Clark County and a 1% increase outside Clark County. Candid insurers admit significant increases in medical liability premiums are likely in the next few years, due simply to an anticipated increase in frequency of medical malpractice claim filings as a consequence of elimination of the Medical Dental Screening Panel.

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Guest Editorial: "What Price Justice?"

By Noel A. Gage, J.D., M.D.

The inebriate leaning against a lamppost seeking support is likely to get more than a Nevada physician would receive from her malpractice insurance company in times of stress. One only need recall the recent case where an OB/GYN repeatedly asked and then begged St. Paul Insurance Company to give her the quid pro quo she bargained for when she paid her insurance premium.

Though the premium was taken with "both hands," when it became apparent that the claim should be paid, those hands remained in St. Paul's corporate pockets, despite repeated oral and written demands that the claim be paid. As a result, the physician was subjected to widespread public infamy and disgrace when a verdict far in excess of her coverage was rendered exacerbating her severe physical and emotional stress which was caused by the conduct of St. Paul leading up to, and during, the trial in this matter. Notwithstanding the fact that St. Paul should have settled the matter within the OB/GYN's policy limits, this corporate behemoth rejected such offers and insisted on placing the physician's well-being and reputation at risk. Further, St. Paul made fun of the patient's condition and used the doctor as a guinea pig for their insurance adjuster's experimentation.

The law provides that where there's a wrong there will be a remedy. Fortunately for this physician (victim of the greed and avarice of the insurance company mentality) the price of justice will be adjudged for the doctor and against St. Paul. There was proper documentation of the repeated demands on both the insurance company and its "menu" counsel. When the day of reckoning comes, faded ink is better than a good memory and shall permit this physician to prevail. Mere granulation for the healing process is simply not enough. The scar inflicted upon this OB/GYN requires a green salve. The laws addressing "bad faith", intentional infliction of emotional distress and other applicable legal doctrines will permit this doctor substantial dollars with which to fade away. She, of course, would have preferred to have maintained her professional reputation and her dignity. But for the misconduct of St. Paul and its minions, her reputation and dignity would have been preserved, as well as her good health.

The OB/GYN asked: "How could this happen when I thought I had competent counsel appointed to represent me? I paid a significant sum for my insurance coverage and they were suppose to properly represent me. Why was the first appointed St. Paul legal counsel actually rude to me? Why did he mistreat me and then abandon me when I sought an explanation for what I believed to be his inappropriate conduct?"

One must also ask what should have been the ethical and proper role of the insurance company's "menu" attorneys. Notwithstanding payment of their billings by the insurance carrier, they have professional responsibilities to the doctor/client.

These lawyer responsibilities arise not only as a matter of fiduciary duty and common sense but also as a result of certain rules. Insurance company defense counsel could have mitigated against this unfortunate display of Insurance Company arrogance if they paid more attention to the Rules of Professional conduct.

Nevada Supreme Court Rule152.1 provides in part that "a lawyer shall abide by a client's decision concerning the objectives of the representation...shall abide by the client's decision whether to accept an offer of settlement of a matter." The failure or inability of the lawyer to abide by the client's decision to accept an offer of settlement prompts the question: who's the client? In that circumstance, it doesn't take a rocket scientist to know that the insurance company "menu" attorney will only take direction from the insurance company when it comes to accepting the offer of settlement. Hence, the revelation that the controlling client is the insurance company rather than the real client who is the physician.

Nevada Rules of Civil Procedure 68 provides a procedure whereby "At any time more than 10 days before trial, any party may serve an offer in writing to allow judgment to be taken in accordance with its terms and conditions." While this rule is available to both parties it is often used by plaintiffs to "wake up" insurance company defense counsel, inasmuch as section (f) provides: Penalties for Rejection of Offer. The purpose of this rule is to encourage settlements of lawsuits before trial and to place the risk of loss on the non-accepting offeree. Section (e) provides "If the offer is not accepted within 10 days after service, it shall be considered rejected by the offeree and deemed withdrawn by the offeror."

Nevada Supreme Court Rule 153 requires that a lawyer act with reasonable diligence and promptness in representing a client. Has any physician been immediately approached by insurance counsel and permitted to accept an offer of judgment? The rationale of such counsel is undoubtedly to leave that decision to the insurance company, again illustrating who controls the "menu" attorney.

The best response a physician can expect these days is to have insurance company counsel remind the insurance company that the physician has consented to settlement within the policy limits, rather than an unequivocal demand on behalf of the doctor that the matter be settled. Instead, said counsel will customarily write a report evaluating the dollar risks of trying the case without regard for the risk to the physician's reputation. The insurance company and its appointed counsel may then force the doctor to be subjected to a trial with all its adverse consequences. And in a case where the verdict exceeds the policy limits the insurance company will then "rely" on the opinion of that same counsel as to the case's value when they attempt to avoid their liability and justify their intransigence in refusing to settle.

Prompt and accurate communication by the "menu" lawyer may provide a wake-up for the unenlightened and unwary defendant physician and the impetus to seek independent counsel if the physician hadn't already done so. Thus, the "real" client may realize that it's time to take issue with the insurance company and/or its "menu" lawyers whose agenda and interests may really be at odds with those of the physician.

The title of this article could easily have been "How not to be screwed by your malpractice carrier." It is my hope that you as a physician might be so guided.

Noel A. Gage, J.D., M.D., is licensed in Nevada, Texas and Michigan and has been trying lawsuits for almost 40 years. He is the senior partner in Gage & Gage, L.L.P., a firm in Las Vegas, Nevada which handles complex civil litigation cases, medical malpractice, catastrophic injury and employment law.

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2002-2003 Clark County Medical Society Committees

Building Committee

David Mulkey, MD - Chair

Sheldon Stein, DO; Annette Teijeiro, MD

Bylaws, Policies and Procedures

Ron Slaughter, MD - Chair

Lubna Ahmad, MD; Shamoon Ahmad, MD; LeRoy Bernstein, MD; Warren Evins, MD; Quan Haduong, MD; Thomas Jacobson, MD; Phillip Manno, MD

Community Relations

Kevin Hyer, MD - Chair

Marietta Nelson, MD - Vice Chair

Farooq Abdulla, MD; George Alexander, MD; Jonathan Bernstein, MD; LeRoy Bernstein, MD; Raj Chanderraj, MD; Eric Gerson, MD; Russell Gollard, MD; Bruce Shapiro, MD; Angela Shoho, MD; Irwin Simon, MD; James Snyder, MD; Alexander Sparkuhl, MD; Robert Troell, MD; Carol Vanderharten, MD

Continuing Medical Education (CME) Committee

Michael Gross, MD - Chair

Sameer Abu-Samrah, MD; Warren Evins, MD; Vijay Goli, MD; Robert Horne, MD; Trevor Nogueira, MD; Joram Seggev, MD; Jagannath Surpure, MD; Ole Thienhaus, MD;

Credentials Committee

Susan Reisinger, MD - Chair

Farooq Abdulla, MD; Vijay Goli, MD; Jerry Jones, MD; Elizabeth Langford, DO; Alka Rebentish, MD; Ole Thienhaus, MD

Delegation 2003

Cyriac Chemplavil, MD - Chair

Joseph Adashek, MD; Alonzo Ashton, MD; Jonathan Bernstein, MD; LeRoy Bernstein, MD; Raj Chanderraj, MD; Bashir Chowdhry, MD; Michael Colletti, MD; John Ellerton, MD; Warren Evins, MD; Michael Gross, MD; Quan Haduong, MD; Robert Horne, MD; Kevin Hyer, MD; Jerry Jones, MD; Stephen Jones, MD; Edwin Kingsley, MD; Kenneth Misch, MD; Donald Mohs, Jr., MD; David Mulkey, MD; Todd Murry, MD; Marietta Nelson, MD; William Pierce, MD; Susan Reisinger, MD; Angela Shoho, MD; Ron Slaughter, MD; Eugene Speck, MD; David Steinberg, MD; Timothy Tolan, MD; Carol Vanderharten, MD; Arnold Wax, MD; Jeffrey Wrightson, MD

Government Affairs

Frank Nemec, MD - Chair

Jonathan Bernstein , MD; Noel Harrison, MD; Kevin Hyer, MD; Richard Litt, MD; Donald Mohs, Jr, MD; Irwin Simon, MD; Sheldon Stein, DO; Timothy Tolan, MD; Alesia Wagner, DO; Jeffrey Wrightson, MD

Internal Affairs

Edwin Kingsley, MD - Chair

Alonzo Ashton, MD; Warren Evins, MD; Nawaz Qureshi, MD

Membership Committee

Jerry Jones, MD - Chair

Scott Boman, MD; Ann Wierman, MD

Mini-Internship Committee

LeRoy Bernstein, MD - Chair

Farooq Abdulla, MD; George Alexander, MD; Raj Chanderraj, MD; Richard Diskin, DO; John Ellerton, MD; William Evans, MD; Bernard Feldman, MD; Richard Klatt, DO; Robert Shreck, MD; Carol Vanderharten, MD

Nominating Committee

Raj Chanderraj, MD; Richard Diskin, DO; Howard Hoffman, Jr., MD; Raul Meoz, MD; Marietta Nelson, MD; Frank Nemec, MD; Ronald Slaughter, MD

Professional Standards Council

Arnold Wax, MD - Chair

Shamoon Ahmad, MD; Phil Manno, MD; Bruce Shapiro, MD; Robert Shreck, MD; Carol Vanderharten, MD

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CME CALENDAR

· Cardiovascular Consultants 691-9154

· Center for Maternal-Fetal Medicine 1-888-326-6951

10/17-10/19 - “High-Risk Pregnancy Solutions”

· Clark County Medical Society 739-9989

· Southwest Medical Associates 242-7347

10/10 - “Headaches,” 7:30 a.m.

10/22 - “CDC Guidelines for Antibiotic Use & Limitations of Vancomycin,” 6:30 p.m. (RSVP to Jeannie Rodrigues, 242-7731

· Sunrise Hospital 731-8210

· UMC 383-2604

· Valley Hospital 388-4847

10/8 - “Fibromyalgia,” noon

10/22 - “ENT for the Primary Care Physician,” 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.

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Clark County Health District Disease Statistics – August 2002

DISEASE CASES REPORTED YEAR TO DATE

8/ 2001 8/2002 2001 2002

VACCINE PREVENTABLE DISEASES

DIPTHERIA 0 0 0 0

HAEMOPHILUS INFLUENZA 1 1 3 5

(invasive)

HEPATITIS A 4 4 40 15

HEPATITIS B 5 2 24 27

INFLUENZA 0 0 28 59

MEASLES 1 0 1 1

MUMPS 0 0 2 2

PERTUSSIS 0 5 3 18

POLIOMYELITIS 0 0 0 0

RUBELLA 0 0 0 0

TETANUS 0 0 0 0

SEXUALLY TRANSMITTED DISEASES

AIDS 13 26 99 164

CHLAMYDIA 371 354 2618 2958

GONORRHEA 162 113 1142 1110

HIV 6 14 78 116

SYPHILIS 0 1 1 7

(Primary & Secondary)

SYPHILIS (Early Latent) 0 0 5 4

ENTERICS

AMEBIASIS 2 2 3 12

BOTULISM-INTESTINAL 0 0 0 0

CAMPYLOBACTERIOSIS 6 11 100 80

CHOLERA 0 0 0 0

CRYPTOSPORIDIOSIS 2 0 4 2

E. COLI O157:H7 2 2 4 11

GIARDIASIS 20 9 78 60

ROTAVIRUS 20 1 354 333

SALMONELLOSIS 19 15 93 121

SHIGELLOSIS 13 11 37 19

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 8 17 23

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 1 1 3 2

LEPROSY (HANSEN'S DISEASE) 0 0 1 0

LEPTOSPIROSIS 0 0 0 1

LISTERIOSIS 0 0 4 0

LYME DISEASE 0 0 1 0

MALARIA 0 0 1 3

MENINGITIS,

ASEPTIC/VIRAL 11 15 40 58

MENINGITIS, BACTERIAL 1 4 13 18

MENINGOCOCCAL DISEASE 0 1 4 14

PLAGUE 0 0 0 0

RABIES (HUMAN) 0 0 0 0

RELAPSING FEVER 0 0 0 0

RSV (RESPIRATORY 18 40 1277 1794

SYNCYTIAL VIRUS)

ROCKY MOUNTAIN SPOTTED 0 0 0 2

FEVER

TOXIC SHOCK SYNDROME 0 0 0 1

TUBERCULOSIS 10 6 46 37

TULAREMIA 0 0 0 0

*Numbers include confirmed and probable cases

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Contents

Defense and Plaintiff Attorneys Review Nevada’s AB 1

Defense View: Sound and Fury Signifying Nothing?

A Somewhat Critical Review of the New Medical Malpractice Statute