Clark County Medical Society

County Line

Newsletter XLVI     November 2003

 

Contents

Nevada Physician Practice Closures

President’s Message

New Members

Membership Applicants

CEO Editorial

Jury duty???

Malpractice Filings against Health Care Providers, Jan 2001 - Sep 2003

Comparison of Specialist/Population Ratios for the US and Clark County

AB 1 is Insufficient Tort Reform

Alliance Message

Minutes Synopsis

CME Calendar

Clark County Health District Disease Statistics – September 2003

Classifieds

County Line Advertisers

 

 

Nevada Physician Practice Closures

By John S. Williamson, M.D., President, Nevada State Medical Association

            The Nevada State Medical Association surveyed the physician community on a regular basis from January 2002-January 2003 to quantify some of the effects of the medical liability crisis, which had begun to result by that time. Specifically, NSMA sought to identify those physicians who had chosen to close their Nevada practices as a result of liability costs (whether such decisions were because of premium costs, insurance availability or the perceived liability climate).   In January, February and March 2002, NSMA acknowledged the difficulty of generating accurate data because of the fluidity of the crisis, the timing of professional liability insurance policy renewals and the variety of impacts on individual physician practices.  In April 2002, the Legislative Subcommittee to Study Medical Malpractice requested that NSMA survey physicians for actual practice closures because of conflicting public reports on the subject. Also in April 2002, Ms. Marybel Batjer, Governor Kenny Guinn's Chief of Staff, requested that NSMA assist them in identifying the extent of the access problem resulting from physician practice closures.  They had also received conflicting information.  In the first transmittal of information responding to these requests (April 25, 2002 letter to Ms. Allison Combs, Principal Research Analyst-Legislative Counsel Bureau from Lawrence P. Matheis, Executive Director-Nevada State Medical Association), it was stated: "The Nevada State Medical Association (NSMA) has to rely on information which is voluntarily provided by NSMA member physicians, other licensed physicians, and physician spouses.

Of the 223 physicians who responded to the January 2003 survey, 55 reported they have closed their Nevada practice (either permanently or temporarily) because of liability costs (including 8 Ob-Gyns who reported that they had closed their practices for Obstetrics because of liability costs); 20 reported they have closed Nevada practice and retired early because of liability costs; 13 reported they are in the process of closing Nevada practice because of liability costs; and, 135 reported that they are seriously considering closure because of liability costs. This information was shared with the Governor's office and the media.

 

BME "Findings" And Data

            In February 2003, the Nevada State Board of Medical Examiners reported to the Legislative Counsel Bureau that they had reviewed the NSMA report but found fewer physicians having closed their practices (61 instead of 75). The Legislative Counsel Bureau (as later the US General Accounting Office) reported the NBME data. Most press reports compared the NBME report with the January NSMA report and concluded that the reports of physician practice closures were exaggerated. The February 28, 2003 issue of the Las Vegas Review-Journal had a story headlined: "Report Suggests Doctor Crisis Overstated: Medical Professionals Dispute Legislative Study".  That article quotes a spokesman for the Nevada Trial Lawyers Association: "Trial attorney Gerald Gillock hailed the report as accurate and said it's about time some doctors were exposed as liars. 'They have been trying to keep hysteria going in the community and they have been lying this whole time,' Gillock said."

            There were press reports about the methodology used by the NBME to develop this report. The March 4, 2003 Las Vegas Sun reported: "The counsel bureau report, based on information compiled by the state Board of Medical Examiners, was researched by Allison Combs. Combs wrote that the Nevada State Medical Association reported 76 medical specialists had closed their practices, while news reports had mentioned "more than 30 obstetricians" who had stopped delivering babies. Combs said the NBME contacted each physician listed by the medical association, with the exception of five licensed by the state Board of Osteopathic Medicine and two physicians whose names were not in the database. The bureau report found 35 doctors had stopped practicing, with 19 of those having left the state. Two of the 35 stated they were continuing to work at local medical facilities and another said he was taking a leave of absence until 2003." Mr. Keith Lee, the NBME contract lobbyist testified on the NBME report at the March 4, 2003 hearing about Senate Bill 97 of the Senate Judiciary Committee. Mr. Lee indicated that, in addition to the September NSMA report, the Board had used lists of Ob-Gyns who had reportedly changed their practices provided by two Clark County Ob-Gyns. He also indicated that the NBME did not review the status of all licensees. He observed that the NBME staff had made judgments as to whether practice closures resulted from medical liability issues but didn't indicate the criteria used. Apparently, the NBME report on which the Legislative staff relied did not name physicians who had closed their practices. They called only licensed MD's (several physicians who had reported leaving their practices were DO's). If they were unable to reach the physician, apparently they did not count the physician as having closed the practice. They also did not count those who had closed their offices if the NBME staff judged that there may have been a reason other than liability for the action. It was reported that the NBME called 30 Ob-Gyns at random and found that most were accepting new patients.

            The NBME also reported that there were 335 new licenses granted in 2002. The Board restated these points in September 2003. A headline in the September 6, 2003 Las Vegas Sun indicated the substance of the impression left by the Board representative's characterization of the data: "Medical Board Says No Doctor Exodus In Nevada."

            A closer review of the NBME's 2002 Annual Report, however, supports the NSMA and media reports about effects of the liability crisis upon practice decisions by individual physicians and the overall impact of the crisis on physician availability. It is true that the NBME reports that there were 190 more "active licensees" in 2002 than in 2001. A closer look reveals that only 23 (3546 in 2002 compared to 3523 in 2001) of these additional physicians were practicing in Nevada. The Board's annual report shows one of the largest increases on record (824 in 2001 to 991 in 2002) of physicians who are licensed in Nevada, but practicing out of the State. This supports the self-reported and anecdotal data that physicians were leaving their Nevada practices.

            Indeed, if the 335 new licensees reported by the NBME is an accurate number, then there was a net loss of 312 physicians who had active Nevada licenses in 2001 but who did not in 2002. That confirms the conservative nature of the NSMA 2003 data, which indicated that 75 physicians had closed their practices, 13 were in the process of closing their practices and 135 were considering doing so because of the medical liability crisis.

            The NBME's 2002 Annual Report notes that there were only 7 more M.D.s in Clark County in 2002 (2321 active licenses) than in 2001 (2314 active licenses). This "increase" was the smallest in Clark County in any year during the period 1987-2002.  (This is the period covered by the NBME report, which notes that there were 161 additional active licensees in Clark County in 2001 than in 2000, 130 more in 2000 than in 1999, 116 more in 1999 than in 1998, 144 more in 1998 than in 1997. 2002 saw the smallest increase in new physicians moving into Clark County reported by the NBME since 1987).  

            More to the point about the misinterpretation that no changes had occurred in the distribution of new physicians moving into Nevada as a result of the Southern Nevada liability crisis is to consider that, in 2002, Clark County did not account for a majority of newly licensed physicians for the first time since 1987, when the NBME data report starts (30% in 2002 while it accounted for 70.6% in 2001, 71.4% in 2000, 78.4% in 1999, 70.2%, in 1998, 70.2% in 1997, 70.2% in 1996, 97.1% in 1995, 72.5%, in 1994, 76.9% in 1993, 71.4% in 1992, 98.8% in 1991, 70.3% in 1990, 69.1% in 1989 and 66.1% in 1988) . Essentially, this also reflects the incoming State population distribution as well. In 2002, nearly 70% of incoming Nevadans moved into Clark County.

            While there might be reasons in addition to the liability crisis that resulted in the large number of physicians who left their Nevada practices in 2002, the NBME failed to include these data when publicly commenting in February 2003 and September 2003 on the number of physician practice closures.  The NBME's comments left with the media, the public and the U.S. Government Accounting Office (see below) the mistaken impression that Nevada physicians were not leaving their practices and that new physicians were moving into the State in the usual numbers.

 

The GAO Report on Access

            In August 2003, the U.S. General Accounting Office released a study, "Medical Malpractice: Implications of Rising Premiums on Access to Health Care". The study, which was conducted between late January and mid-February 2003, looked at the impact of the medical liability crisis on five "crisis" States, (Florida, Nevada, Pennsylvania, Mississippi, and West Virginia), and four "non-crisis" States (California, Colorado, Minnesota, and Montana).  The GAO confirmed that access problems could be documented in surgical services associated with emergency care and obstetrical services and reported: "Actions taken by health care providers in response to malpractice pressures have contributed to localized health care access problems in the five states we reviewed with reported problems.  We confirmed instances in the five states where actions taken by physicians in response to malpractice pressures have reduced access to services affecting emergency surgery and newborn deliveries.  These instances were not concentrated in any one geographic area and often occurred in rural locations, where maintaining an adequate number of physicians may have been a long-standing problem, according to some providers."  NSMA has pointed out consistently that the Nevada medical care system infrastructure was strained and insufficient prior to the medical liability crisis. The crisis has resulted in the greatest strain on those parts of the system, which were already strained-hospital emergency services; specialty surgery and services, particularly in pediatric specialists; and, obstetrical care.

            The GAO also substantiated that significant tort reforms had been adopted in the 4 states without a crisis and had not been adopted in the 5 states with a crisis. "After 2000, premium rates (for Ob-Gyns) began to rise across most states on average, but more slowly among the states with certain noneconomic damage caps. In particular, from 2001 to 2002, the average rates of increase in the states with noneconomic damage caps of $250,000 and $500,000 or less were 10 and 9 percent, respectively, compared to 29 percent in the states with limited reforms."   Further, they document: "Average per capita payments for claims against all physicians tended to be lower on average in states with noneconomic damage caps than in states with limited reforms.   From 1996 through 2002, the average per capita payments were $10 for states with these damage caps compared with $17 for states with limited reforms. Within these averages, however, were wide variations among states."

            The most controversial part of the report is highlighted in the September 6, 2003 Las Vegas Review-Journal headline: "Medical Malpractice Insurance: GAO: Crisis Exaggerated Report Says Doctors Embellished Claims About Services".  The GAO report indicates that it relied upon the Nevada State Board of Medical Examiners February report to the Legislature (not the NBME 2002 Annual Report which was not available when they conducted their study). As indicated above, this report was based on the September 2002 NSMA survey and used an odd method to "confirm" physician actions. "In Nevada, 34 OB/GYNs reported leaving, closing practices, or retiring due to malpractice concerns; however, confirmatory surveys conducted by the Nevada State Board of Medical Examiners found nearly one-third of these reports were inaccurate-8 were still practicing and 3 stopped practicing due to reasons other than malpractice. Random calls we made to 30 OB/GYN practices in Clark County found that 28 were accepting new patients with wait-times for an appointment of 3 weeks or less.  Similarly, of the 11 surgeons reported to have moved or discontinued practicing, the board found 4 were still practicing."

           

Nevada Physician Data

            An analysis of the distribution of physicians by specialty and per population may indicate some areas of potential physician undersupply. No systematic or independent study has been performed of Nevada's physician needs for two decades. The following data are based on official reports of the Nevada State Board of Medical Examiners (NSBME), the American Medical Association's "Physician Characteristics and Distribution in the US" (2001-2002 Edition) and the U.S. Bureau of the Census.

            In the period, 1980-1999, Nevada's physician population increased 138% (nearly 2.5 times).  63.9% of Nevada's physicians were in Clark County, 26.5% in Washoe County and 9% in rural/frontier parts of the State. Nevada has steadily lost ground in maintaining a physician supply sufficient to meet the needs of the nation's fastest growing population. Here are some representative data:

·        Nevada was 36th nationwide in 1980 when the State population was 800,000 there were 1,158 licensed physicians.  That's a physician to patient ratio of 144 MDs per 100,000 population. Nationally, there were 195 MDs per 100,000 population.

·        In 1985, Nevada ranked 34th in the nation. The population had risen to 969,370 and the physician population had risen to 1,442.  That was 148 MDs per 100,000 population, while the national ratio was 220 MDs per 100,000 population.

·        Nevada ranked 44th in 1990, as the State population grew to 1,283,490 and the physician population grew to 1,811. That's 141 MDs per 100,000 population) (nationally- 237 MDs per 100,000 population).

·        Nevada ranked 46th in 1995, when the population had grown to 1,583,000 and the physician population had risen to 2,424. (153 MDs per 100,000 people) (nationally-267 MDs per 100,000 population).

·        Nevada ranked 45th in 1996 when the national rate was 268 MDs per 100,000 population). In 1999, with a population of 1,809,000, the licensed physician population had risen to 3,113 (153 MDs per 100,000 population).

·        Nevada ranked 46th in 2000, there were 3,295 (156 MDs per 100,000 population). 

·        In 2001 there were 3,523 licensed MDs (165 MDs per 100,000 population).

o       The national data for 2001-2002 are not yet officially available, but in 2001, according to the U.S. Department of Health and Human Services "Health Resources and Services Administration's 'Bureau of Health Professions", Nevada ranked 47th in physician to population.

o       According to the Kaiser Family Foundation, whose numbers have varied slightly over the years from the "official" figures because of adjustments they make (http://www.statehealthfacts.kff.org/cgi-bin/healthfacts.cgi?action=compare&category=Providers+%26+Service+Use&subcategory=Physicians&topic=Nonfederal+Physicians+per+100%2c000+Population) in 2001, Nevada ranked 48th in the nation in the "Rate of Nonfederal Physicians per 100,000 Civilian Population" (189/100,000 population) The States ranking below Nevada in this report are: Wyoming (183/100,000), Mississippi (176/100,000) and Idaho (166/100,000). The 2001 U.S. rate was 268 physicians /100,000 population.

·        In 2002, there were 3,546 licensed MDs (162 per 100,000 population).

 

            The conclusion is obvious. Throughout the last decade, Nevada has had significant difficulty maintain the necessary balance of physicians to population in the fastest growing State in the nation. The previously cited data indicate both an exodus of physicians and an insufficient number of newly licensed physicians to offset these losses. While there needs to be a careful analysis of the distribution of medical specialties to populations at risk, it is not inappropriate to suggest that there are and are likely to be increasing problems regarding access to appropriate physician specialists throughout Nevada with Southern Nevada likely to experience the most dramatic changes in availability of physician services.

 

Top

 

President’s Message

By Ed Kingsley, M.D., 2003-2004 CCMS President

Unreliable justice . . . and pervasive distrust [are] causing a meltdown in American health care" - that is how an attorney recently summarized the condition of our national medical system in an editorial published in the New York Times (July 21, 2003).   Author of the book "The Collapse of the Common Good:  How America's Lawsuit Culture Undermines Our Freedom", Philip K. Howard makes a compelling argument for completely dismantling this country's current healthcare tort system and replacing it with one based on special tribunals of expert judges (instead of uninformed juries) who first determine the facts of the case and then decide whether the physician complied with an acceptable standard of care.  He gets right to the heart of the matter by observing "even modest legislative [medical tort] reform is routinely resisted as trespassing on the hallowed right to take every issue to a jury.  But this right is generally misunderstood.  In criminal prosecutions, juries play a critical role as our protection against abuses of government power.  Juries are our defense.  But in a civil case, where citizens can use the justice system as an offensive weapon, the most important social value is predictability."  That "predictability" would best be assured, he asserts, by allowing these judges to declare the standards of law that would best be applied to not only the specific case of alleged medical malpractice but to our society as a whole instead of leaving it up to naive juries.  This is not a new idea - expert judges are already utilized in other fields of law such as taxes.  I think this kind of radical overhaul of our legal system would be beneficial to both doctors and patients. 

 

As many of you may now know, the State Tax Commission correctly decided to exclude our medical practices from the definition of a "lending institution" thus sparing Nevada's doctors from having to pay an additional hefty tax.  Every once in a while, our government does make the right decision.  Thanks to all of you who called or wrote your legislators to help defeat this proposal.

 

There was a recent Nevada State Board of Medical Examiners workshop regarding their upcoming audit by the Federation of BME's.  Dr. Havins, our CEO and Executive Director; Larry Matheis, the Executive Director of the Nevada State Medical Association; Dr. Ron Kline and Dr. Marietta Nelson, trustees on our Board; Dr. Robert Shreck, immediate past-president of the NSMA; and I had the opportunity to attend and give input to the issues that we think should be addressed by this audit of our BME.  The audit will look at how well our BME responds to both doctors and the public, among other things.  There will be more forthcoming on this audit in this column.

 

Last month, Dr. Michael Colletti, Dr. Havins, our CCMS administrative staff and I attended a meeting of the Southern Nevada Medical Industry Coalition held at UNLV.  This is a collection of community health and other business leaders whose mission is to improve the availability and quality of health care in Clark County.  Although just recently organized, its members are committed to continue to work as long as it takes to address such issues as the shortage of nurses, respiratory and radiology technicians as well as how to help the KODIN initiative pass next year.   I expect much good to come from this organization.

 

A new medical school is coming to town.  Touro University, a private osteopathic medical school headquartered in San Francisco, is bringing a satellite campus to Las Vegas with doors expected to open next fall.  The first class of medical students will number somewhere between 50 and 95, according to Dr. Joseph McNerney, Touro's Dean of Students, so this will be a significant addition to those students already here from the University of Nevada School of Medicine.   Touro is not new to our community - for over six years their students and residents have been working at the Lake Mead Hospital Medical Center.  In addition to that hospital, their students and residents have been tutored directly by many community physicians in their private clinics.  More information will be forthcoming in this column as their program progresses.

 

Speaking of medical students, the CCMS Scholarship Fund committee is awarding medical school scholarships to 4 UNSOM students this year.   I believe this is money well invested - these students are the future of medicine.  

 

Medical education is an issue that all of us should be keenly interested in.   I believe the more medical students and residents that train in our community, the better.  This is a blessing for both us and for our community for many reasons.  First, this gives us physicians the opportunity to become personally involved in the medical education of the next generation of doctors.  This, in turn, helps keep us current on standards of medical care for our own medical practices as well as influencing for good these young doctors-in-training.  We now have the opportunity to pass on to the next generation not only our own professional experience and knowledge but also our medical mores and ethics which will undoubtedly deeply affect these trainees for a lifetime.  Secondly, these same students and residents who train here will tend to stay in southern Nevada to practice medicine and raise their families.  This is exactly what Nevada needs - remember, this state rates 48th in the nation in physician to state resident ratio.  I believe the current medical liability lawsuit abuse problem in this state leading to serious physician access problems in some specialties is a major reason for this, and I think CCMS should embrace any and all legitimate means of improving the situation.  Thirdly, the giving of ourselves to help educate and train the next generation of doctors for reasons other than monetary remuneration is part of what being a physician is all about - selflessly serving both our colleagues and our patients.   It broadens our perspective and makes us better doctors and individuals.  I think making medical education a priority here in southern Nevada improves our collective and individual image to both our patients and the community.  We will also begin life-long relationships and friendships with these future doctors that will, directly or indirectly, come back to benefit us. 

 

Top

 

New Members for September 2003

Congratulations and Welcome to the Clark County Medical Society

 

Transfer from Washoe County Medical Society

 

Welcome Back to Reinstated Members

 

Top

 

Membership 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

 

 

For information on becoming a member of the Clark County Medical Society, call Marlaina Burns at 739-9989

 

Top

 

CEO Editorial

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

On page 11 you will find a graph and chart indicating the frequency of medical malpractice claims filed against healthcare providers which varies significantly from prior charts and graphs, at least as to the numbers for 2003.   CCMS Membership Coordinator Marlaina Burns returned to the website of the Court Clerk for Clark County to investigate whether, in the year 2003, additional plaintiffs and/or additional defendants had been added to cases.  Marlaina found many cases in which this had occurred, from a few days to a few weeks after the initial filing of the cases.  A few bizarre cases were found.  In one instance, a case with one plaintiff and one defendant became a case with two plaintiffs and twenty-one defendants - doctors and their spouses!  The spouses not being physicians, it is unlikely that the physicians' medical liability carrier would defend the spouse.  This being the situation, the spouse will be obliged to hire his or her own counsel to defend against what appears to be a frivolous medical malpractice filing against them personally.

 

This issue of the County Line also contains NSMA President Dr. John Williamson's article regarding the recent loss of physicians in Washoe and Clark County.  The NBME 2002 Annual Report provided much of the data for this analysis.  The 2003 - 2004 edition of AMA's "Physician Characteristics and Distribution in the U.S." publication indicates that Nevada ranks 48th among the states for non-federal physicians per population.  Only Idaho (51st), Oklahoma (50th), and Mississippi (49th) have a worse ratio than Nevada.  Not surprisingly, Clark County numbers are worse than the overall Nevada state ratio.  Ratios of specialists both nationally and in Clark County are presented in a graph and chart.

 

The relative lack of medical physicians per population may correlate with Tuoro University School of Osteopathic Medicine announcing that they plan to open a school of osteopathic medicine in Clark County, with an initial class of about 75 students per year and a target beginning date of Fall 2004.  Valley Hospital apparently has committed to provide the clinical training facilities for this new school of osteopathic medicine. 

 

An article by a middle-management-level hospital administrator discusses the tort reforms of AB 1.  The article concludes that AB 1, while a good start, will not lower medical malpractice premiums of healthcare providers (including hospitals) and will not improve public access to physicians.  Deborah O'Conner is a candidate for a Masters Degree in Health Care Administration.  The Keep Our Doctors In Nevada (KODIN) Initiative, to be voted on by the public in November 2004, is Nevada citizens’ hope for controlling lawsuit abuse and increasing access to medical care.

 

Top

 

Jury duty???

Recent changes in Nevada law eliminated all exemptions for serving on a jury - except state legislators during a legislative session. This means physicians no longer can receive an automatic exemption from jury service. CCMS members who receive a jury notification can call CCMS CEO and Special Counsel Dr. Don Havins at (702) 739-9989 for helpful information on this topic.

 

Top

Clark County District Court Medical Malpractice Filings against Health Care Providers

Jan 2001 - Sep 2003

 

 

 


            2001    2002    2003

Jan       39        33        109

Feb      20        14        88

Mar      35        30        148

Apr      37        34        101

May     37        35        108

Jun       27        24        98

Jul        19        100      97

Aug      54        51        63

Sep      20        65        85

Oct      37        83       

Nov     38        184     

Dec      9          170     

 

*Note: Please read the CEO Editorial

on page 10 for further explanation of this chart.

 

 

Top

 

Comparison of Specialist/Population Ratios for the US and Clark County

 

Top

 

AB 1 is Insufficient Tort Reform

By Deborah O'Connor, MSW, LCSW, Valley Hospital Business Services Coordinator

            Nevada State Assembly Bill 1 (AB 1) was developed and signed into law August 2002 in response to the professional liability insurance crisis and the problem of attracting and retaining physicians in the state of Nevada, especially Clark County.  Rising numbers of medical malpractice suits, coupled with high damage awards to plaintiffs, created a negative financial climate for medical malpractice insurance companies.  Some of the largest insurers, notably St. Paul, stopped offering coverage to Nevada physicians. The remaining insurers had premium increases of 3-4 times the previous rates. These rates, in combination with lower reimbursements, particularly in managed care, created financial crises for many physicians.  Some physicians, particularly those in high-risk specialties such as OB-GYN, closed their practices as they faced their insurance renewal date.

            The intent of AB 1 was tort reform, ultimately aimed at reducing costs of medical malpractice insurance, maintaining an adequate supply of physicians and access to medical care for the people of Nevada.  Studies have shown that tort reform caps on non-economic damages keep premiums and awards tolerably low.  Sloan, et. al. (1989), state "looking at closed claims, caps on non-economic damages reduced insurer payouts by 31% and reduced payouts plus expenses by 23%.  Caps on total damages reduced damages by 38%".  AB 1 addresses several aspects of medical malpractice, each of which will be explained and assessed for the likelihood of meeting the goals of affordable malpractice insurance and a stable physician community.  

            One controversial feature of this legislation is a purported $350,000 cap on non-economic damage awards.  The Nevada Revised Statutes defines non-economic damages as "damages to compensate for pain, suffering, inconvenience, physical impairment, disfigurement, and other non-pecuniary damages".  On the surface, this cap appears likely to positively impact liability insurance premiums.  However, the effectiveness of this cap is severely compromised by its unpredictability and exceptions.

            First, the statue does not limit total non-economic damages to $350,000.  Rather, it states the damages awarded to each plaintiff from each defendant must not exceed $350,000.  It is an unusual case that has only one plaintiff, and as written, the statute will likely lead to filing against multiple defendants in an attempt to increase the potential award.  This leads to more unpredictability for insurers, and certainly won't lend itself to lower premiums as plaintiffs attempt to stack the award.

            Secondly, there are two notable exceptions to the $350,000 limit, gross malpractice and exceptional circumstances.  According to the NRS definition, gross malpractice charges cover those cases where there is a "failure to exercise the required degree of care, skill, or knowledge and a "conscious disregard to consequences" or a "disregard for and indifference to the safety of the patient."  Unfortunately, the statue does not define "exceptional circumstances", leaving the interpretation and application open to a judge's discretion.  For plaintiffs and their attorneys, this exception is arguably applicable to every medical malpractice case.  And this "cap" on noneconomic damages only applies if the physician maintains malpractice insurance minimums of $1 million per claim and $3 million aggregate.   Economic damages are unlimited under AB 1. 

            Physicians providing acute trauma care in emergencies are protected with a cap of $50,000 on civil damages for conduct not amounting to gross negligence or malice.  This limit applies to physicians treating such patients at all hospitals, and does not preclude physicians from charging their normal fees.  For these reasons and others, many attorneys opine that this provision of the law will be found unconstitutional by the Nevada Supreme Court.

            The legislation attempted to revise the doctrine of joint and several liability, falling short by only repealing joint liability with regard to non-economic damages.  The defendant is only liable for non-economic damages to the extent of his fault or negligence.  However, with regard to economic damages, joint and several liability remains.  For economic damages, the plaintiff can collect the total from any defendant, despite his amount of fault, and even if it exceeds his coverage.  Thus, the changes have fallen short of providing changes that could reasonably be expected to reduce premiums and awards.

            The bill attempts to expedite trials by reducing the statute of limitations to 3 years if filed between 10-01-02 and 10-01-05, and 2 years if filed after 10-01-05.  If not brought to trial within these time limits, the case must be dismissed.  The 2-year limit does not go into effect until 2005, delaying any potential reductions in insurance premiums for years.

            The Medical-Dental Screening Board has been abolished.  Now cases proceed directly to District Court.  This has resulted in a more than doubling of the number of cases filed, and undoubtedly will increase the number of unwarranted cases. 

            When a case is filed in District Court, it will be dismissed if it does not contain expert medical testimony.  This expert is defined in the NRS statute as one "who practices or has practiced in an area substantially similar to the type of practice engaged in at the time of the alleged malpractice."   Prior to AB1 any physician could be an "expert" in any case regardless of their knowledge or expertise in the specific area.

            Physicians must report that they have been sued for medical malpractice within 45 days of receiving notice of such a lawsuit.  Severe sanctions apply to physicians ignoring this mandate.  Physicians must submit a report to their governing board every two years detailing all actions filed in court and all malpractice or negligence claims submitted for arbitration or mediation.  The physicians' insurers must report to the board any actions filed or claims submitted to mediation or arbitration, along with the disposition (settlement, award) within 45 days of the disposition.  Failure to comply carries a fine of $10,000 against the insurer. The clerk of each court is mandated to report findings and judgments to the board within 45 days after the determination of the case. Then annually, the courts submit a compilation of statistics from the previous year to the board.  On every odd year, the boards of medical examiners and osteopathic medicine are required to submit to the governor a report detailing all disciplinary actions taken in the previous two years against physicians for malpractice or negligence.  This report is for statistical purposes and excludes identifying information.

            Significant whistle-blower protection has been included in AB 1. Employees of physicians or medical facilities are protected against retaliation or discrimination if they in good faith report sentinel events or physician conduct which could lead to disciplinary action.  "Retaliate" and "discriminate" are specifically defined as ten different actions including transfers, demotions, changes in hours, workdays, reduction in pay, suspensions, dismissals, poor evaluations etc.  If an employee feels that they have been retaliated or discriminated against, they may file an action against their physician employer.

            In 1998, the Congressional Budget Office asserted that "caps on non-economic damages have been extremely effective in reducing the severity of claims and medical liability premiums."  A study of AB 1 by an economic consulting firm (Hamm & Bubna, 2002, p. 13) states "Assembly Bill 1 will do little in the near term to reduce rates.  These costs will be passed along to providers, consumers, employers, workers and taxpayers.  As the costs of the health care system rises, access to quality care tends to fall".

            While AB 1 constitutes a tort reform attempt at fostering affordable medical liability premiums, in fact it is inadequate to have meaningful effect on liability premiums.  The Keep Our Doctors in Nevada initiative, to be voted upon in the November 2004 election, contains the elements that have proven to be effective in assuring affordable medical liability premiums and in assuring public access to quality medical care in California for the last 27 years.  All healthcare providers, as well as their current and future patients, have a stake in promoting passage of the Initiative.  Until then, we Nevadans can expect continued increases in medical liability premiums with decreasing access to quality medical care as many of our best, experienced physicians continue to exodus our State.

 

Reference Citations

            Congressional Budget Office, "Preliminary Cost Estimate, H.R. 4250 Patient Protection  Act of 1998," July 24, 1998

            Hamm, William & Bubna, Amit (September, 2002) Key Components of Nevada's Assembly Bill 1:  An Economic Analysis

            NRS 41A.011 and 41A.031 (2002 Special Session, 6)

            NRS 41A.100 (2002 Special Session, 9)

 

Top

 

Alliance Message

By Annette Mohs, 2003-2004 CCMS Alliance President – admohs@earthlink.net

Greetings,

            The Clark County Medical Society Alliance feels strongly that one of our key functions is to promote goodwill through charity and volunteerism and that our actions reflect positively on the medical community as a whole. This year we have two major fundraisers planned: the Greeting Card Project and the Spring Fashion Show.

            Recognizing the nursing shortage in our community, Estella Hansen, our chairwoman for the 2003 Greeting Card Project has set a noble goal of securing 300 sponsors, which will enable us to triple our historical annual funding of three nursing scholarships to ten scholarships of $1,000.00 each. In addition to the nursing scholarships it is our ambition to raise enough funds to make substantial donations to the ALS foundation and the Woman's Development Center.

            The Spring Fundraiser Committee has begun planning the March Fashion Show and has secured a popular news anchor, Kendall Tenney to be the master of ceremonies. The FEAT organization, Families for Effective Autism Treatment will be the benefactor of this event. The event is scheduled for March 16, 2004.

            The CCMSA began its 2003-2004 year in September with a wonderful luncheon at Cili's Restaurant and approved our new logo and new tagline, "Spouses of Physicians building a healthy Southern Nevada.

 

Top

 

Minutes Synopsis

(Members can receive a full copy of meeting minutes by calling 739-9989.)

CLARK COUNTY MEDICAL SOCIETY BOARD OF TRUSTEES MEETING

Tuesday, September 16, 2003; 6:00 P.M.

Action Items

 

Committee Reports

 

Alliance Report

 

Nevada School of Medicine Report

 

Scholarship Fund Report

 

President's Report

 

KODIN Update

 

Administrative Report

 

Old Business

 

The next board meeting will be Tuesday, October 21, 2003 at 6 pm. 

There being no further business, the meeting was adjourned by Dr. Kingsley at 8:15 pm.

 

Top

 

CME Calendar

American Back Society     510-536-9929

·        11/13-11/15 - “Advanced Diagnosis & Treatment for Neck & Back Pain,” Riviera Hotel, up to 24 CME hours (40% discount for CCMS members)

Cardiovascular Consultants     691-9154

Clark County Medical Society     739-9989

St. Rose Hospital     616-5832

Southwest Medical Associates   242-7347

·        11/13 - “New Updates on Chronic Heart Failure”

·        12/11 - “Wound Care: Past, Present and Future”

Summerlin Hospital   233-7572

·        11/1 - “Bioterrorism and Weapons of Mass Destruction Training,” 8 a.m., 7.5 CME hours

Sunrise Hospital     731-8210

·        11/5 - “Gamma Knife,” 6:30 p.m., 1 CME hour

·        11/6 - “Alternative Therapy for Menopause,” 6:30 p.m., 1 CME hour

·        11/7 - “Primary Care: Depression,” 7:30 a.m., 1 CME hour

·        11/12 - “Cardio Vascular M&M,” 7 a.m., 1 CME hour

·        11/12 - “Myelodysplasia,” 6:30 p.m., 1 CME hour

·        11/14 - “Pediatric Pathology,” 7:30 a.m., 1 CME hour

·        11/14 - “Primary Care: Managing HIT,” 12:15 p.m., 1 CME hour

·        11/17 - “AIDS,” 6 p.m., 1 CME hour

·        11/18 - “Smoking Cessation,” 12:15 p.m., 1 CME hour

·        11/21 - “Pediatric Grand Rounds: Lupus,” 7:30 a.m., 1 CME hour

UMC     383-2604

Valley Hospital     388-4847

·        11/11 - “Antibiotic Resistance,” noon

·        11/25 - “Physician Health & Wellness,” noon</