Veteran lawyers flee malpractice as jury verdicts vanish

BY VALERIE MILLER
http://www.lvbusinesspress.com

Las Vegans who feel they’ve been victims of medical malpractice may have a tough time finding an experienced lawyer. Veteran plaintiffs’ attorneys are leaving the field or dramatically limiting the cases they take, in the wake of tort reform and dwindling jury awards.

Big-name plaintiffs’ firms, such as Crockett & Myers, and heavy hitters like attorney Gerald Gillock say “poisoned” jury pools, and limitations on jury awards and attorneys’ fees have caused them to turn down most potential lawsuits against medical providers.

Only $335,000 in plaintiffs’ verdicts had been awarded through October 2006, compared to $2 million in all of 2005. Some older cases, governed by pre-tort reform statutes, are still working their way through the court system.

MORE DEFENDANTS PREVAIL

Perhaps more telling are Eighth Judicial District Court statistics showing that only two of 18 malpractice cases tried in 2006 have resulted in awards to plaintiffs. More than six times that number — 13 — resulted in a favorable outcome for the defendant. The rest were either settled or ended in a mistrial. In 2005, only four out of 20 trials ended in plaintiffs’ awards, compared to 15 defense verdicts.

In 2001, prior to calls from doctors and insurance companies for tort reform, eight of the 14 malpractice verdicts rendered in Clark County were returned in favor of the plaintiff. Total jury awards equaled $21.7 million that year.

“I have filed one case since the changes in the law,” attorney Richard Myers said. The partner in Crockett and Myers recalled how the firm used to file 12 or 14 malpractice suits a year. That’s changed now: “Nobody else in the firm is filing them.”

Some lawyers are still filing suits, according to District Court records. As of Oct. 31, 174 cases had been filed in 2006. The previous year saw 160 filings. Malpractice lawsuits peaked in 2002 and 2003, though, when 337 were filed each year. District Court Chief Judge Kathy Hardcastle says there was a rush of filings in those years, to beat the deadline when the $350,000 cap on non-economic damages came into effect.

That limit was part of the tort reform package passed by a special session of the Legislature in 2002. Silver State voters added further restrictions, including caps on attorney’s fees, with the $10 million “Keep Our Doctors in Nevada” initiative at the 2004 election.

New attorneys are trying their hand at medical malpractice, according to Hardcastle. That’s helped to fill the void left by the exit of the veterans, she said.

Some are skeptical, however, that will solve the problem of adequate representation for victims of malpractice. “That’s unfortunate for patients, because a lot of (the new attorneys) don’t know what they are doing,” Gillock said.

AN EXPENSIVE PROPOSITION

Trial lawyers blame the 2004 initiative, which made trying cases much less lucrative. Passage of Question 3 limited fees to 40 percent of the first $50,000 of any award, one-third of the next $50,000, a quarter of the next $500,000 and 15 percent of any amount over $600,000.

The high costs of proving a medical malpractice case don’t make those fees workable, according to Myers. “For you to get a good, well-qualified physician to review it costs $5,000, or $7,000 or $10,000, and if they say, ‘I reviewed it and I don’t think it rises to medical malpractice,’ you don’t have a case. Most people don’t have the money to pay for that themselves.”

Plaintiffs’ attorneys must recover about 40 percent of the award in order for the case to be workable, Myers explained. It’s no secret that lawyers are leaving the field, he added.

INSURERS MORE DARING NOW

Insurance companies, say some plaintiffs’ attorneys, are also more willing to try their luck in court under the new rules. “Prior to the reform, the insurance company would still win the majority of the cases, but that was because they would settle the cases that should be settled before trial,” Gillock contended. “But you would still get plaintiffs’ verdicts on good cases.”

Gillock cited a recent case involving alleged malpractice which, he said, resulted in the patient’s death. Despite the findings of a specialist who testified that the defendant failed at every major step to treat the patient, Gillock said the jury found in the doctor’s favor. As a result, the patient’s widower has a verdict against him to pay around $39,000 in legal fees to the defense.

“In the state of Nevada, it is just unfortunate all the false publicity that is out there (on malpractice claims),” he continued. “Now, you can be drunk as a skunk and operate on someone and still only be liable for $350,000.”

Local OB-GYN Jerry Jones has a different take. He said the tort reforms were necessary to maintain quality health care in Nevada. “It’s given doctors hope that they can come back and rebuild their practices.”
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