MINUTES OF THE meeting
of the
ASSEMBLY Committee on Medical Malpractice Issues
Eighteenth Special Session
July 29, 2002
The Assembly Committee on Medical Malpractice Issues was called to order at 12:13 p.m., on Monday, July 29, 2002. Chairman Bernie Anderson presided in Room 4100 of the Legislative Building, Carson City, Nevada. The meeting was videoconferenced to Room 4401 of the Grant Sawyer Office Building in Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Mr. Bernie Anderson, Chairman
Ms. Barbara Buckley, Vice Chairman
Mr. Bob Beers
Mr. David Brown
Mrs. Barbara Cegavske
Mr. Joseph Dini, Jr.
Mr. Lynn Hettrick
Mrs. Ellen Koivisto
Ms. Sheila Leslie
Mr. Mark Manendo
Mr. John Marvel
Mr. John Oceguera
Ms. Genie Ohrenschall
Ms. Bonnie Parnell
Mr. Richard D. Perkins
COMMITTEE MEMBERS ABSENT:
None
GUEST LEGISLATORS PRESENT:
Assemblyman Doug Bache, District 11
Assemblyman John Carpenter, District 33
Assemblywoman Vonne Chowning, District 28
Assemblyman Jerry Claborn, District 19
Assemblyman Tom Collins, District 1
Assemblywoman Marcia de Braga, District 35
Assemblywoman Vivian Freeman, District 24
Assemblywoman Chris Giunchigliani, District 9
Assemblyman John Lee, District 3
Assemblywoman Kathy Martin, District 20
Assemblywoman Kathy McClain, District 15
Assemblyman Harry Mortenson, District 42
Assemblyman Dennis Nolan, District 13
Assemblyman David Parks, District 41
Assemblyman Bob Price, District 17
Assemblywoman Debbie Smith, District 30
STAFF MEMBERS PRESENT:
Allison Combs, Principal Research Analyst
Nicolas Anthony, Senior Research Analyst
Risa Lang, Principal Deputy Legislative Counsel
Kim Morgan, Chief Deputy Legislative Counsel
Cindy Clampitt, Committee Secretary
June Rigsby, Committee Secretary
Linda Smith, Committee Secretary
OTHERS PRESENT:
Charles Laws, Citizen and candidate for Governor
Lisa Black, Nevada Nurses’ Association
Leann McElroy, City of Reno
Kevin Spitz, GEMP (not in registered lobbyist book; no phone number)
Stephanie Licht, Elko County
Jan Gilbert, Planned Parenthood
Pat Elzy, Planned Parenthood
Maureen Brower, Nevada Hospital Association (NHA), American Insurance Association (AIA), etc.
Dr. Lawson Richter, Physician
Pat Chao, Citizen
Dr. Lonnie Hammargren, Citizen
Jim Wadhams, American Insurance Association (AIA), Nevada Hospital Association (NHA), Nevada Independent Insurance Agents (NIIA)
Reverend Chester Richardson, Las Vegas Citizen
Victoria Riley, National Trial Lawyers Association
Dianne Meyer
Janet Markley
Susan Roe, Registered Nurse
Mary Walker, Carson Tahoe Hospital
Ron Kendall, Kendall & Associates, Inc
Larry Spitler, Nevada Associate Director, American Association of Retired Persons
Denell Hahn, Sunrise Hospital
Ann Lynch, Sunrise Hospital
Dr. Kenneth Sigelman, Consumer Attorneys of California
James De Roche, National Trial Lawyers Association
Dawnelle Keys, Citizen
Robbie Keys, Citizen
Edward Goodrich, Citizen
Thelma Clark, Las Vegas Citizen
Renee Williams
The meeting was called to order at 12:13 p.m. Chairman Bernie Anderson extended a welcome to committee members and guests. A quorum was present. Chairman Anderson explained the meeting was directed by the call of Governor Kenny Guinn, and the stated purpose of the hearing was to address the recent medical malpractice insurance crisis. Although precipitated by a critical situation in Las Vegas, Chairman Anderson explained their discussion and decision-making would have a statewide impact on the medical industry in Nevada.
Chairman Anderson voiced his expectation for courtesy and fair consideration of all points of view in what was expected to be an emotionally-charged forum. He emphasized that public testimony was critical to the process and cautioned his fellow assemblymen not to forget their duty to serve the public. He reminded members of the audience to sign in, if they expected to testify. It was essential that testimony be truthful and succinct, especially if a previous speaker had addressed the topic adequately. The record would be left open for purposes of allowing witnesses to submit copies of written testimony at the end of the day.
Chairman Anderson stated the first order of business would be the adoption of Standing Rules for the Medical Malpractice Issues Committee (Exhibit C). The Legislative Counsel Bureau staff would then present a brief overview of topics. Testimony would follow throughout the day as well as on Tuesday.
Chairman Anderson then called for a motion to adopt the Committee Rules; however, copies had not been distributed to members. Chairman Anderson called the committee’s attention to Standing Rule 42, adopted earlier on the Floor of the Assembly. He emphasized that Standing Rule 42 required all amendments be submitted through the Medical Malpractice Issues Committee.
Chairman Anderson introduced the Legislative Counsel Bureau staff, Allison Combs, Principal Research Analyst, and Nicolas Anthony, Senior Research Analyst. Ms. Combs distributed three volumes of background information compiled as the result of an interim study to address medical malpractice. Volume 1 (Exhibit D), entitled “Background Information On Medical Malpractice – Overview of the Work of the Legislative Subcommittee to Study Medical Malpractice,” included a white paper summarizing key findings, the minutes of two meetings, and background information compiled by the subcommittee. Volume 2 (Exhibit E) and Volume 3 (Exhibit F) were each entitled “Background Information On Medical Malpractice.”
Ms. Combs explained the volumes contained an overview of past legislative actions, comparative information on the insurance markets in Nevada and across the nation, an update on the recently created Medical Liability Association of Nevada, an overview of Nevada’s current civil justice laws and a list of nationwide laws involving tort reforms, information on California’s Medical Injury Compensation Reform Act of 1975, a national overview that highlighted caps on damages, comparative data on the functioning of medical liability screening panels in other states, data on Nevada claims with emphasis on Clark County, and an overview of the operation of the Nevada Board of Medical Examiners.
Chairman Anderson acknowledged the tremendous investment of time and effort by the Legislative Counsel Bureau staff. He commended the quality of the reports and voiced his confidence the data would prove to be essential in their discussions and decision-making processes.
Nicolas Anthony called the committee’s attention to Volume 2 (Exhibit E) and offered to comment on the Nevada Civil Justice laws, the third tab in the document. A chart on page 73 summarized the statute of limitations, immunity from liability for certain emergency care, comparative negligence, medical malpractice panels, use of expert witnesses, patient consent, limits on punitive damages, damages from collateral sources, periodic payments for future damages, and damages in cases involving wrongful death. The fourth tab of Volume 2 (Exhibit E) contained a nationwide overview of tort laws (i.e., medical malpractice liability statutes) as published by the National Conference of State Legislatures (NCSL). Mr. Anthony predicted those topics would be prominent throughout the committee hearing. For easy reference, a copy of the Nevada Revised Statutes (NRS) 41 and 42, was included.
Chairman Anderson called for questions from the committee. Hearing none, he resumed discussion of the Standing Rules for the Committee on Medical Malpractice Issues (Exhibit C). Chairman Anderson called attention to Rule No. 4. In accordance with Assembly Standing Rule 42, he quoted the following: “Committee introduction of legislative measures and amendments will require a majority of the entire committee and require a committee from each such concurrent member to support final passage, a commitment of supporting final passage, the measures are adopted and amendments on the Floor of the Assembly as appropriate.”
For clarification, Chairman Anderson explained that normally a committee member’s vote indicated support for getting that piece of legislation out of committee to the floor. In the past, Chairman Anderson had requested of his committee members that if an individual would not be supporting the bill on the floor, that he informed the chairman in advance or refrained from voting. For purposes of the Medical Malpractice Issues Committee, a commitment to vote at the committee level equated to a commitment to support the bill and amendments on the floor, unless the chairman had been otherwise notified. As such, it was somewhat more formal than the normal Judiciary Committee voting process.
ASSEMBLYWOMAN BUCKLEY MOVED TO ADOPT THE STANDING RULES OF THE COMMITTEE ON MEDICAL MALPRACTICE ISSUES.
ASSEMBLYWOMAN CEGAVSKE SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY BY ALL PRESENT.
Chairman Anderson called for a recess and asked for the committee to reconvene at 1:15 p.m. Witness testimony would commence following the recess.
At 1:33 p.m., Chairman Anderson called the committee meeting to order and invited the first witness to come forward.
Larry Spitler, Nevada Associate Director of Advocacy for the American Association of Retired Persons (AARP), read from a prepared statement (Exhibit G). He emphasized the great complexity of the issues and the need for equitable consideration of all stakeholders (businesses, healthcare professionals, and consumers). Mr. Spitler acknowledged that a crisis had brought the malpractice issue to prominence, but it was important to remember the underlying issue was to protect and improve health and access to care. In his judgment, the central problem was not the tort system but preventable medical injury.
Mr. Spitler, on behalf of the AARP, recommended nine critical actions that would promote preventable medical injury and medical malpractice. They included the setting of national goals for patient safety, a mandatory nationwide reporting system of adverse events, voluntary reporting efforts, legislation to extend peer review protections, healthcare organization performance standards, promotion of patient safety performance standards, increased attention by the Food and Drug Administration (FDA) on the safe use of drugs, the development of a non-punitive system for reporting errors, and the institution of proven medication safety practices.
Mr. Spitler emphasized his opposition to actions that would impair the right of injured patients to full and just compensation for injuries resulting from inappropriate medical care. He concluded his testimony with a review of four key elements supported by the AARP (Exhibit G). The first was to promote access to the courts for all legitimate claims, including smaller malpractice claims, and to accelerate the resolution of cases. The second recommendation was to explore alternative dispute resolution systems for medical malpractice cases that could serve negligently injured patients better than the current system. The third element was to evaluate other promising systems of compensation for preventable medical injuries and to explore demonstration projects. His final recommendation was the establishment of malpractice insurance rates that fairly and accurately reflected claims experience.
Chairman Anderson called for questions. Assemblyman Brown requested clarification of the third key element, evaluation of other systems, and asked the witness if he had examples. Mr. Spitler explained the AARP Washington headquarters office was performing a nationwide information scan for demonstration projects. He suggested the Interim Committee on Medical Malpractice would also be investigating those systems. Chairman Anderson clarified that the Interim Committee, chaired by Senator Rawson, had finalized the report, and it was presented on Monday, July 21.
Susan Roe, a Registered Nurse and resident of Las Vegas, read testimony on behalf of her family. In 1998, Christopher Roe, age 14 years, was diagnosed with acute lymphocytic leukemia (ALL). Mrs. Roe stated her son suffered greatly and died unnecessarily as a result of their physician’s negligence. Her family had been advised to follow a treatment protocol that was thought to be a better option for Christopher. The protocol had a divergence on the seventh day of chemotherapy treatment at which point a bone marrow screening would be performed. It was designed to determine if Christopher was a “slow responder” (i.e., his cancerous cells were still evidenced in the marrow) or a “rapid early responder” (i.e., in remission). With sadness in her voice, Mrs. Roe explained that the final pathology report had not been examined, and, as a result of that oversight, the less aggressive path of treatment was selected for Christopher. He died within 9 months of diagnosis.
Mrs. Roe’s personal research had revealed the expected course of the disease was generally 3-5 years and not 9 months. Additionally, the expected rate of survival was 80 percent. After obtaining copies of Christopher’s laboratory test results, Mrs. Roe discovered he had twice the number of cancer cells in his bone marrow than she had originally been told. Further, the physicians had ignored signs and symptoms present at the time of diagnosis that would have dictated cranial radiation therapy in addition to chemotherapy.
Mrs. Roe concluded her remarks and emphasized the suffering Christopher had endured and the unmitigated grief her family was experiencing. Litigation became their only recourse and the most effective means to send an important message to the physicians. In the process of interviewing several lawyers, Mrs. Roe was advised the process would be long and arduous. Despite less than encouraging advice, the Roe family proceeded with legal action.
In her judgment, Mrs. Roe felt if the cap of $250,000 or $350,000 was enacted, it would be almost impossible to locate an attorney willing to take the case. Ordinary citizens would be denied access to the justice system. Additionally, medical malpractice judgments were reported to the National Physicians Data Bank and to the Nevada State Board of Medical Examiners. If there were no cases proceeding to court, there would be no mechanism to deal with a small number of incompetent physicians. Mrs. Roe stated one of her son’s physicians admitted his awareness of the error one month after the point of Christopher’s diagnosis. In her view, that was an egregious act of malpractice and denied her son a chance at survival. Despite the physician’s admission of error, his affidavit stated the outcome would have been just as poor.
In conclusion, Mrs. Roe stated emphatically that Christopher Thomas Roe did not have a “bad outcome” as declared by his physician. He died on his sixteenth birthday. She appealed to the committee to help other families in their pursuit of justice.
Assemblywoman Cegavske expressed her sincere condolences to the witness and asked if the family’s medical bills had been adequately covered. Mrs. Roe explained that, although many bills had been handled, the family had the misfortune of having ESEA self-funded insurance. The witness reminded the committee there had been a past legal issue between the support staff of the Clark County School District and the ESEA insurance coverage. As a result, there was an outstanding claim of $135,000 owed to the University of Minnesota that ESEA denied due to a supposed lack of timely filing.
Chairman Anderson inquired if the Roe family had difficulty in locating an attorney to take the case. Mrs. Roe replied in the affirmative. Negligence was apparent; however, causation was a more difficult point to prove. The expert witness called to testify was the Chairman of the Children’s Oncology Group for the United States. In his view, Christopher needed cranial radiation, an accepted standard of care. As a result of his expert testimony, the Roe family hired an attorney.
In closing, Mrs. Roe acknowledged the issue of causation was important; however, it served to give “free reign” to oncologists to choose treatment protocols and then later claim the expected outcome, from the point of diagnosis, was death.
In response to Chairman Anderson’s request for an update on the case, Mrs. Roe stated the case had not yet come to trial and the next step was the Medical-Legal Screening Panel. The total elapsed time between searching for an attorney and the upcoming screening panel hearing was approximately one year. She explained that part of the delay occurred during the interviewing of three attorneys who held their files for a long period of time before rendering a decision on the merit of the case. The second attorney held the documents for seven months and then declared he had a conflict of interest and could not accept the case.
Chairman Anderson summarized by stating from the point of diagnosis to the upcoming appointment with the medical screening panel was approximately one year. Mrs. Roe clarified that Christopher died in the fall of 1999 and, as such, total elapsed time was three years and four months. Chairman Anderson thanked the witness for her testimony.
Assemblywoman Cegavske interjected with a request for a written copy of Larry Spitler‘s testimony.
Chairman Anderson called the next witness and, given the time constraints, he encouraged all witnesses to be as succinct as possible.
Lisa Black, the Executive Director of the Nevada Nurse’s Association (NNA), read from prepared testimony (Exhibit H). In her view, all parties had common agreement that the issue of medical malpractice had reached a point of crisis, one that required expeditious and fair handling. Ms. Black clarified her testimony was a mixture of both personal viewpoints as well as those of the NNA.
On the topic of civil justice reform, the Nurse’s Association had not taken an official position on the issue of damage caps; however, her personal experience of becoming HIV and Hepatitis C positive compelled her to speak out on behalf of caps. Although Ms. Black admitted to lifetime medical benefits and unemployment compensation, there had been no provision for her pain and suffering, both described as severe and extreme. She stated emphatically that she found it repugnant that any group or person would set a dollar value on her life, regardless of amount. In her view, caps on awards could invite that judgment.
On the issue of insurance reform (Exhibit H), the Nevada Nurse’s Association supported several points. The association agreed that the practice of setting insurance premiums for obstetricians based on the number of deliveries should be disallowed. If not amended, the association believed it would be improper to include the number of deliveries attended by Advance Practitioners of Nursing (APN) in the aggregate number of covered deliveries attended by a physician. Ms. Black explained Advance Practitioners of Nursing practiced in a collaborative role, not a supportive role, and they maintained their own liability insurance.
Regarding medical error reporting (Exhibit H), the Nevada Nurse’s Association supported the development of an effective system of medical error reporting in Nevada. Ms. Black recommended implementing the guidelines set by the Institute of Medicine and developing a system that did not focus on the naming, blaming, or shaming of individual practitioners. The goal would be to identify the systems failures that harmed patients. In Ms. Black’s view, punitive actions against practitioners would create an environment of covering up errors, and immunity to disciplinary actions and licensing actions should be instituted. In her view, that immunity would dovetail with and enhance whistle-blower provisions.
Ms. Black encouraged the committee to clearly define “an adverse event short of a sentinel event causing severe harm or death for the purposes of any legislation relevant to medical error reporting that may come out of this special session.” On the somewhat unrelated subject of nursing shortages, she called the committee’s attention to the fact that increasing the number of registered nurses in medical facilities was associated with a decreasing number of errors.
Chairman Anderson, citing a shortage of committee time, asked the witness to conclude her testimony. Ms. Black summarized by commending the work of all parties who had contributed to solving the medical malpractice issue in Nevada.
Assemblywoman Leslie requested clarification on whether the medical malpractice reporting system would be mandatory or voluntary. Ms. Black responded that the Nevada Nurse’s Association endorsed a mandatory system that protected the healthcare worker from being individually blamed, disciplined, or subjected to licensing sanctions. The reporting system should publish aggregate numbers and not reveal the individual caregiver’s name.
Assemblywoman Cegavske inquired if it was known how many nurses statewide and nationally were cited in medical malpractice cases. Chairman Anderson suggested that data might be part of Assemblywoman Koivisto’s subcommittee report. Ms. Black volunteered to address the question and explained the detailed information was included in the last meeting of the Interim Committee on Medical Malpractice. Chairman Anderson stated the Legislative Counsel Bureau Research Division would investigate the issue.
The next witness was Ms. Renee Williams, testifying on behalf of her daughter, Brianna Williams, a victim of medical malpractice. Before and after photographs of her daughter (Exhibit I) were submitted for the record. Ms. Williams described the series of events that followed what should have been a routine labor and delivery on November 7, 2000. Her daughter was now in a chronic vegetative state and required total care. In her judgment, the physicians and nurses ignored reports of post-delivery hemorrhaging and, as a result, Brianna Williams suffered permanent and severe brain injury. Ms. Williams stated her firm opposition to caps on damages and believed medical professionals should be held accountable.
Chairman Anderson asked the witness how long it took to find an attorney to take the malpractice case. Ms. Williams stated she worked for an attorney, and she had never received solid advice or help on the matter from that firm. She decided to interview a new attorney, and the total elapsed time was approximately 6 months to procure legal assistance.
Reverend Chester Richardson, a resident of Las Vegas and a Baptist minister, commenced testimony in support of caps on medical malpractice. He reminded the committee of the monetary caps awarded to the gaming industry when they appeared before the Nevada Legislature. Reverend Richardson voiced concern over doctors who turned away patients because of malpractice claim fears. He illustrated his point with the example of his teenage son who was severely injured as a victim of a drive-by shooting. He took his son to the Trauma Center in Las Vegas, and his son’s life was saved.
Reverend Richardson summarized the heart of the issue as being people, such as his son, who needed service.
Chairman Anderson summarized the testimony by saying the witness appeared to be inspired by the opening and closing of the UMC Trauma Center in Las Vegas. He requested clarification if the witness’s main concern was the need for the continuing operation of the trauma center or the proposed caps of $250,000. Reverend Richardson stated the trauma center should remain open at all costs. His second point related to his role as an advocate in the community for citizens who needed dental or medical treatment and could not find a doctor to accept their business.
Assemblywoman Koivisto requested research data on the number of lawsuits filed against the University Medical Center (UMC) Trauma Center. Chairman Anderson acknowledged her request. There being no additional questions, he recessed the committee hearing at 2:30 p.m. and announced the hearing would resume at 4:00 p.m. He suggested to committee members, with emphasis to Democratic members, to meet in their respective caucus groups for updates.
Chairman Anderson reconvened the Medical Malpractice Issues Committee at 4:29 p.m.
He announced that Senate and Assembly members had had an opportunity to meet with the Governor to discuss some compromise points that had been agreed to by both sides. That discussion led to the drafting of BDR 3-13 (Exhibit J) and introduction in the Senate. Chairman Anderson declared he would honor his promise to hear testimony from all witnesses. The contents of BDR 3-13 would be reviewed in testimony presented by Speaker Perkins and Assemblywoman Buckley. Chairman Anderson predicted the introduction of a very similar piece of legislation on the Assembly side at 8:00 a.m., Tuesday, July 30. Following that, the Assembly Committee on Medical Malpractice Issues (MMI) would reconvene to accept amendments. Any amendment to the document must come through the Assembly Committee on Medical Malpractice Issues. Public testimony would be welcome.
Charles Laws, citizen and candidate for the office of Governor, summarized his concerns to BDR 3-13. He alluded to Governor Guinn’s public comment in which the Governor voiced his optimism that the bill would be essential to building a foundation for long-term solutions. Mr. Laws acknowledged the complexity of the process and agreed it was not an issue that could be solved during the special legislative session. He viewed the terms of BDR 3-13 as Band-Aids and aspirin attempting to treat a very dysfunctional system.
The crisis needed a sufficient period of diagnosis before solutions could be suggested and implemented.
Mr. Laws reminded the committee the citizens of Nevada were at the heart of the system and the sole motivation for all efforts. The citizens interacted with their insurers, healthcare providers, and with the legislators. As such, the complexity of those interactions dictated a thorough analysis and careful approach that appeared to be currently absent. Attorneys were players at multiple stages of the crisis. The full range of relationships had to be exposed before real progress could be made.
Regarding the issue of caps, Mr. Laws referred to it as an oxymoron. In his view it was not possible to suggest an economic means of balancing the damages of noneconomic concerns. Because the losses covered the spectrum of both physical and emotional harm, he suggested the committee consider the cost of therapy (e.g., grief counseling) to transition clients and their families through the trauma. Physicians who were accused of inflicting the damage also had need for counseling. Mr. Laws emphasized that compensation not be limited to monetary award, and that they can treat all parties as human beings and not bank accounts.
Chairman Anderson called for questions. There being none, he summoned the next witness. Many witnesses did not respond to his invitation to testify because they had left the room.
Ron Kendall, representing Kendall & Associates, commenced testimony on behalf of physicians. He called the committee’s attention to his written testimony (Exhibit K) inspired by his personal experience. Although he was damaged by the healthcare system, Mr. Kendall voiced strong support for the good doctors who saved his life. In his view, the healthcare system was driven by exorbitant malpractice insurance rates that were creating an exodus out of Nevada of good healthcare providers. Mr. Kendall voiced his support of the tort reforms recommended by Governor Guinn that would impose a cap to match the California standard. He concluded by stating that the Nevada legislature had the ability to invoke mandatory binding arbitration that would help ensure a quality healthcare system in Nevada.
Chairman Anderson called for additional witnesses. Seeing none, he requested distribution of the Bill Draft Request (BDR) 3-13 document.
· BDR 3-13 -- Makes various changes related to medical and dental malpractice. (A.B. 1)
Speaker Perkins and Assemblywoman Buckley moved to the witness table and began an overview of the bill. Speaker Perkins explained the document was a bill draft request that would be introduced the following day as A.B. 1. He explained it was the product of many hours of discussion between legislative and executive branches and represented a consensus. It was not regarded as a perfect piece of legislation. Conspicuously absent from the bill draft request was the topic of insurance reform which he predicted would be a prominent issue in the 2003 session of the Nevada Legislature.
Speaker Perkins acknowledged there had been lengthy discussion of medical errors reporting and stated it was not fully addressed in the bill draft request. Because of the technical nature of that topic, the issue could not be fairly addressed in such a short amount of time. The topic would be handled at a later date.
Assemblywoman Buckley, representing Assembly District 8, echoed the sentiments of her fellow committee members in the need to meet in special session largely as the result of the St. Paul Insurance Company who eight months previous had ceased to provide coverage in Las Vegas. One of the insurance reforms that had been in the original Assembly bill draft, alluded to by Speaker Perkins, required that when insurance companies served a high proportion of the market that they had to give a minimum of 120 days’ notice before withdrawing from the market. Assemblywoman Buckley assured the committee that would be a reform to be addressed during the 2003 Legislative Session.
In her judgment, the lack of planning opportunity caused by the abrupt withdrawal of the insurance carrier greatly compounded the situation. It catapulted the issue to the crisis point for southern Nevada doctors. When addressing the issue of insurance reform, Assemblywoman Buckley emphasized that lowering the premium costs had to be part of that future dialogue. The current mission, however, was to quickly bring a package for statewide implementation. She described the bill as a consensus bill and acknowledged input from many members of the legislature. On the topic of medical error reporting, Assemblywoman Buckley commented that was not yet part of the bill draft. She explained that during the last session, Assemblywoman Koivisto had sponsored a bill on that topic which had led to the interim study. Many of the findings of that interim committee had been captured in the proposed medical error-reporting document that would be available the following day.
Speaker Perkins commenced the explanation of BDR 3-13 (Exhibit J) by topic, referencing sections as appropriate. The first topic, civil justice reform, was described as containing a concept for fast-tracking medical malpractice cases and streamlining the process. Speaker Perkins explained the need was predicated by great concerns over the delay in getting a medical malpractice case to trial, in some instances more than 5 years. He added that the state of Nevada had a Medical Screening Panel in place since 1985. The purpose of the panel was to ensure non-meritorious cases did not get taken to court; however, the efficacy of the panel had been questioned since its inception.
Assemblywoman Buckley explained the issue of expediting the handling of medical malpractice cases had been a prominent point of discussion in their committee meetings. All parties agreed that streamlining the process was necessary and would lower overall costs. Assemblywoman Buckley declared the proposed legislation would eliminate the existing Medical Screening Panel. For cases in progress, the plaintiff would be allowed to choose between the panel and proceeding to District Court. Referencing Section 7 (Exhibit J), Assemblywoman Buckley explained staggered implementation would efficiently move backlogged cases from the panel to the court. After October 2005, a case would have to be brought forward within two years, rather than the current 3-year deadline.
Assemblywoman Buckley called the committee’s attention to the issues of mandatory settlement conferences and judicial training. All parties, including the plaintiff, the defendant, and the insurance companies, would be required to participate in a settlement conference before a district judge. Each judge would be trained in the complexity of medical malpractice cases. Assemblywoman Buckley credited Governor Guinn with the idea of training at the Judicial College.
Speaker Perkins resumed testimony and addressed the topic of the statute of limitations. The proposed legislation would dictate that cases involving injury or wrongful death must be brought within three years or within two years of the date of discovery – whichever occurred first. Requirements for expert witnesses would be strengthened. The judge would be required to dismiss with prejudice if the action was filed without an affidavit signed by a medical expert who practiced in a substantially similar area of medicine.
The most significant topic in the area of civil justice reform was described by Speaker Perkins to be monetary caps on noneconomic damages. He labeled it the cornerstone of the entire issue of medical malpractice reform. The proposed legislation would impose a cap of $350,000 on noneconomic damages in medical malpractice cases. For egregious cases of negligence (e.g., brain damage), the cap would be modified to $350,000 or the amount remaining in the policy after economic damages had been assessed. It would apply to cases of gross malpractice in which the court decided an award in excess of $350,000 was justified. No single defendant would be liable to the plaintiffs in excess of his own policy limits.
Assemblywoman Buckley called the committee’s attention to page 5 of BDR 3-13 (Exhibit J) for examples of egregious medical malpractice that could be exceptions to the monetary caps. In cases of clear and convincing evidence, the judge would be allowed a higher standard than the usual preponderance of the evidence standard, thereby permitting him to make an exception. As such, there would be some flexibility and judicial discretion.
Chairman Anderson called for agreement from the committee regarding questions. Assemblyman Beers requested clarification if the current testimony was simply an overview and if additional time would be spent later on each topic. Chairman Anderson replied in the affirmative.
Assemblywoman Buckley introduced the next major topic, protection of trauma center medical personnel. The proposed legislation would ensure that those personnel at non-profit hospitals were not unfairly responsible for large civil damages. It would further ensure that trauma centers in Nevada communities would remain open for business. The bill would codify the $50,000 state and county cap on damages. It would not change the status of trauma center personnel to county employees. The cap would no longer apply once the patient was stabilized or the emergency had passed. For the cap to apply, the medical care would have to be delivered in good faith and in a manner that did not result in gross negligence or reckless conduct.
Speaker Perkins clarified the rationale behind the need to retain and protect the trauma centers in Nevada. County facilities were limited in their liability to $50,000 under the governmental cap. Medical personnel working side by side with county employees had no such cap. That inequity created a fear among certain workers of being a greater risk for “deep pocket” monetary awards.
Speaker Perkins called the committee’s attention to Section 6 covering joint and several liability. A defendant in a medical malpractice case would not be subject to deep pocket awards. He would be severally liable for noneconomic damages based upon his percentage of the negligence.
On the issue of periodic payments, Speaker Perkins clarified that the proposed legislation modified existing law which allowed for payment of future economic damages, either in lump sum or by annuity, for periodic payments. The bill would allow the court to order payment in the lump sum or in periodic payments. In the case of the latter, the award would be paid either by annuity or by other means if the defendant posted a bond or other security.
Sanctions against attorneys would be required in situations where non-meritorious cases were unreasonably pursued. The proposed legislation (Exhibit J) would revise existing Nevada law to require, instead of allow, the court to issue a sanction against an attorney in cases judged to have no merit. The attorney would be required to personally pay the costs, expenses, and attorney fees incurred as a result. Assemblywoman Buckley interjected there would be no cap in such instances.
Ms. Buckley called the committee’s attention to Sections 18, 25, and 27 (Exhibit J) and the issue of mandatory insurance coverage. A physician would be prohibited from practicing medicine in Nevada unless he maintained liability insurance, described as a minimum of $1 million per person and $3 million per occurrence. Further, the bill provided statutory definitions of the terms “economic” and “noneconomic” damages. Regarding medical error reporting, Assemblywoman Buckley expressed her hope that a draft of that proposal would be available for review in the near future. The issue of medical error reporting had been prominent in interim committee discussions and was regarded as a critical part of preventative efforts.
Assemblywoman Buckley cited nationwide efforts and explained that prevention of medical errors was of highest priority in every state. Fourteen states currently had developed medical error reporting systems, with Pennsylvania heralded as being one of the best in the nation. Ms. Buckley reviewed some of the key elements, which included the system be a mandatory one, with a stated purpose to prevent and learn from mistakes – not to be punitive in nature. Compiling essential data of medical errors was viewed as the first step in prevention of future events.
Speaker Perkins summarized by stating their testimony had referenced the most important aspects of BDR 3-13 (Exhibit J). He acknowledged the need for public testimony and committee scrutiny as the amendments to the bill were drafted.
Assemblyman Hettrick requested clarification of wording in the economic damage section. The language did not refer to “person” but rather to the death of a parent, a spouse, or a child. He asked if that was the intent of the proposed law. Assemblywoman Buckley confirmed Mr. Hettrick’s conclusion and added that current law governed the family relationship issues. The language of the bill reflected that practice.
Assemblyman Dini called the committee’s attention to Section 18 and the language describing the requirements to carry $1 million - $3 million liability insurance. Assemblyman Dini voiced concern over what could become an unfair burden to the rural areas of Nevada. Many of the rural hospitals hired the doctors and provided the malpractice insurance under which the doctors practiced.
Assemblywoman Buckley acknowledged the value of the question and recommended obtaining a decision from the Legal Division of the Legislative Counsel Bureau. In urban areas, doctors were already required to get liability insurance in order to have staff privileges at hospitals. Because the legislation would have statewide impact, Assemblywoman Buckley concurred it was important to ensure there would be no unintended consequences for the rural areas.
Assemblyman Marvel asked what the premium would be on a $1 million - $3 million policy. Assemblywoman Buckley responded by posing a question regarding the intended reduction in premiums as a result of the legislative reform. Physicians paid widely disparate amounts for the $1 million - $3 million coverage, and it generally depended upon the medical specialty. As a rule, trauma surgeons and obstetricians paid the highest premiums. There were differences across states.
Assemblyman Marvel echoed the concern of existing financial hardship to rural hospitals and the estimated fiscal impact of new law. Assemblywoman Buckley reiterated the issue needed more examination.
Chairman Anderson advised the committee of the recommendation to invite testimony from Mr. Welsh of the Rural Hospital Alliance.
Assemblyman Hettrick explained that some communities were served only by clinics and did not have the benefit of a hospital. He voiced confusion over coverage for treatment centers that were neither hospitals nor designated trauma centers. He added that Mr. Welch would probably provide clarification.
Chairman Anderson cited the example of the trauma center at Lake Tahoe, owned and operated by the Barton Memorial Hospital. Assemblyman Hettrick interjected a point regarding the crossing of state lines and the possibility that California law regulated some doctors. Chairman Anderson acknowledged that there are a variety of stakeholders, some of which may be unknown.
Assemblyman Dini posed a question about the impact to Washoe Medical Center and the difference in its status compared to UMC in Las Vegas. Chairman Anderson concurred with the distinction. Speaker Perkins offered to clarify the issue and stated that Washoe Medical Center would be covered. The bill did not make a distinction between Level I, II, and III. Washoe was described as having a trauma center at a non-profit hospital. Chairman Anderson elaborated upon the distinction between public hospitals and private hospitals (e.g., Washoe Medical) that may be designated as a “for profit” rather than a public entity.
Speaker Perkins requested time to address a concept that had been overlooked in his testimony. He explained there were sections in the bill that dealt with medical error reporting designed to tighten existing law. The proposed legislation would require the reporting of medical errors by medical facilities and their employees within 24 hours. The report would be issued to a new state oversight agency that would be charged with analysis of methods to improve patient safety. The patient would be provided with as much information as necessary to make informed decisions regarding his/her treatment options. The patient would have the right to know if a facility or physician had a large number of reported errors.
Following informal discussion, Speaker Perkins clarified he was referring to language that would be included in an amendment. He apologized for the confusion. The reporting requirement was contained in the existing language in Section 19 (Exhibit J). Chairman Anderson reassured the committee that the language would be clarified during the upcoming line-by-line discussion.
Speaker Perkins concluded by saying that there had always been some law requiring medical error reporting; however, it had been determined that the reporting was not thorough. Additionally, stricter time limits and civil penalties for non-compliance in reporting were needed. Quality information was required to make public policy decisions.
Chairman Anderson acknowledged the testimony and volume of work performed by the staff in preparing information for the hearing. He announced the bill would be introduced the following day, and all amendments would come through the committee.
Risa Lang, Committee Counsel, submitted a document entitled “Summary of Senate Bill No. 2” (Exhibit L).
Senate Bill 2: Makes various changes related to medical and dental malpractice. (BDR 3-13)
Susan Roe’s written testimony was submitted as Exhibit M.
The meeting was adjourned at 5:45 p.m.
RESPECTFULLY SUBMITTED:
June Rigsby
Transcribing Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: