Some rethink malpractice cap

ANJEANETTE DAMON
http://news.rgj.com

The television ad clinched it.

The image of trusted doctors in white coats trooping out of the state to flee high malpractice insurance rates bombarded voters, who overwhelmingly decided to cap the amount of money juries could award victims of botched medical procedures.

The bitter fight in 2004, marked by twisted statistics and emotional hyperbole, pit doctors against trial lawyers — and the doctors won.

But four months ago, a three-year shield that prevented the Legislature from touching the voter-imposed law expired.

Now, an unprecedented health scare linked to unsafe practices in surgical centers across Nevada has gripped the state, prompting some lawmakers and lawyers to call for a review of the punitive damages cap.

While not many are suggesting the caps — which limit pain and suffering awards to $350,000 — should be removed, several key lawmakers said they would support reinstating exemptions for gross negligence or extreme cases.

They say the hepatitis C outbreak linked to unsanitary syringe use at a Las Vegas clinic that sickened six people and put at risk 40,000 more is a prime example of an extreme case for which victims need better compensation.

Such exemptions were part of emergency legislation passed by the Legislature in 2002.

“We included those exemptions as a way to ensure something truly beyond the standard of care, something truly beyond comprehension — like this — that there would be an automatic exception to the cap,” said Assembly Speaker Barbara Buckley, D-Las Vegas.

Proponents of reexamining the caps argue such doctor immunity fails to deter unsafe practices. They also argue that $350,000 is a paltry sum for someone who contracted a chronic life-threatening disease because of a doctor’s negligence.

“Regardless of who you are, if you know you are protected in this fashion, it’s certainly no deterrent to this kind of shoddy practice by the endoscopy center,” said Las Vegas lawyer Jeff Gomel.

“And if you are one of the unfortunate ones who may test positive from HIV or hepatitis, $350,000 for the pain and suffering they are going to endure is grossly insufficient.”

But those who organized the Keep Our Doctors in Nevada initiative that created the caps, cautioned against a knee-jerk reaction to what they agree is an unacceptable breakdown in patient protection.

“If you think having a higher cap would have changed the behavior of any of these physicians, I’d think you’re wrong,” said Dr. Rudy Manthei, a Las Vegas physician who was chairman of Keep Our Doctors in Nevada. “You’re always going to find somebody who thinks they can get away with it. It’s not a matter of money.”

Dr. Dipak Desai is under investigation by county, state and federal agencies following the discovery of a hepatitis C outbreak linked to unsafe syringe use at his practice, Endoscopy Center of Southern Nevada.

He’s accused of ordering nurses at the center to rely on the unsafe procedure of reusing syringes and single-use medication vials on multiple patients.

Since finding the unsafe practices at the Endoscopy Center of Southern Nevada, state health officials have launched an inspection blitz of the state’s 50 surgical centers. So far, they’ve uncovered unsafe infection control practices at more than half a dozen other clinics across the state.

Desai, a politically active financier, was one of the major financial backers of the Keep Our Doctors in Nevada initiative.

Buckley isn’t the only lawmaker to favor revisiting the caps.

The chairmen of the Senate and Assembly judiciary committees, which would be responsible for working on legislation changing the caps, said they would support reinstating the exemption for gross negligence.

“What’s the correct policy for when something like this happens to open up some more avenues of redress, without returning you to the days when not a lot of doctors were wanting to come in and practice in the state?” said Sen. Mark Amodei, R-Reno, chairman of the Senate Judiciary Committee.

Assemblyman Bernie Anderson, D-Sparks, agreed.

“I believe that the gross negligence exception should absolutely be there,” he said.

But Assembly Minority Leader Heidi Gansert, R-Reno, who is married to a physician, said lawmakers should focus on better regulatory mechanisms instead of the caps.

“I would be wary of opening all the malpractice caps given that could really be devastating to access to care in this state,” Gansert said.

In 2002, a medical malpractice crisis developed in Nevada following the departure of the state’s two largest malpractice insurance providers. Malpractice rates soared and some doctors left the state, unable to stay in business because of the expense.

The Legislature passed emergency tort reform, creating the $350,000 caps with the gross negligence exception.

Unhappy with the law, the state’s doctors, backed by the insurance industry, successfully pushed the initiative petition in 2004.

Since the law has passed, the malpractice insurance market in Nevada has stabilized. More carriers have entered the market and rates have declined, said Janice Moskowitz, lead actuary for the Nevada Insurance Division.

Gansert and others fear a change in the caps would once again unsettle the market.

“I don’t think anybody in this state really wants to see us go through that again,” said Scott Craigie, a consultant who managed the Keep our Doctors in Nevada campaign in 2004. But he acknowledged that the health clinic scare has reset the political climate in favor of those who want to change the caps.

“I have not seen any major issue that would motivate people to go back and revisit this, except for this clinic scare,” Craigie said. “I’m not underestimating that at all.”

Changing the caps would be politically difficult. In addition to lawmakers being loath to go against the will of the people, a change would be difficult to get through the Republican-controlled state Senate and past Gov. Jim Gibbons.

Gibbons has long been a proponent of tort reform and has favored pain-and-suffering caps in the past. But his spokesman, Dan Burns, said Gibbons will consider all avenues to addressing the health clinics.

“When it comes to fixing this problem, everything will be on the table because this will never happen again,” Burns said.

Bill Bradley, a lawyer with the Nevada Justice Association that opposed Keep Our Doctors in Nevada, said reform likely will have to come from voters, not the lawyers’ group.

“We are hopeful that this crisis will lead Nevada citizens and its representatives to create a more fair system,” he said.

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