NEVADA LEGISLATURE
Eighteenth Special Session, 2002
ASSEMBLY DAILY JOURNAL
THE Second DAY
Carson City Tuesday, July 30th, 2002
Assembly called to order at 8:17 a.m.
Mr. Speaker presiding.
Roll called.
All present.
Prayer by the Chaplain, Al Tilstra.
O Lord, keep us aware of our need for You. We have asked for Your guidance in difficult decisions many times, yet Your help has not always come the way we thought it should come. Many of the situations and relationships which we have asked You to change have remained the same. Forgive us for thinking therefore that You are unwilling to help us in our dilemmas, or that there is nothing You can do. Remind us that when we plug in an electric iron and it fails to work, we do not conclude that electricity has lost its power, nor do we plead with the iron. We look at once to the wiring to find what has broken or blocked the connection with the source of power. May we do the same with ourselves, that You may work through us to do Your will. This we ask in Your Holy Name.
Amen.
Pledge of allegiance to the Flag.
Assemblywoman Buckley moved that further reading of the Journal be dispensed with, and the Speaker and Chief Clerk be authorized to make the necessary corrections and additions.
Motion carried.
MOTIONS, RESOLUTIONS AND NOTICES
Assemblywoman Buckley moved that Michael Johnson, Mark Sayre of KTNV-TV be accepted as accredited press representatives, that they be assigned space at the press table in the Assembly chambers and that they be allowed use of appropriate broadcasting facilities.
INTRODUCTION, FIRST READING AND REFERENCE
By Assemblymen Perkins, Buckley, Anderson, Hettrick, Cegavske, Angle, Arberry, Bache, Beers, Berman, Brower, Brown, Carpenter, Chowning, Claborn, Collins, de Braga, Dini, Freeman, Gibbons, Giunchigliani, Goldwater, Gustavson, Humke, Koivisto, Lee, Leslie, Manendo, Martin, Marvel, McClain, Mortenson, Neighbors, Nolan, Oceguera, Ohrenschall, Parks, Parnell, Price, Smith, Tiffany and Williams:
Assembly Bill No. 1—AN ACT relating to malpractice; limiting the liability of certain medical providers for negligent acts under certain circumstances; establishing a limitation on the amount of noneconomic damages that may be awarded in an action for medical malpractice or dental malpractice; providing for several liability of a defendant for noneconomic damages in an action for medical malpractice; making various changes concerning the payment of future economic damages in actions for medical malpractice; providing for the mandatory dismissal of an action for medical malpractice or dental malpractice under certain circumstances; repealing the provisions pertaining to the use of screening panels for an action for medical malpractice or dental malpractice; revising the statute of limitations for filing an action for medical malpractice or dental malpractice; making various other changes concerning actions for medical malpractice or dental malpractice; requiring certain district judges to receive training concerning the complex issues involved in medical malpractice litigation; requiring courts to impose certain sanctions on attorneys in certain circumstances; making various changes relating to the reporting of claims of malpractice or negligence; and providing other matters properly relating thereto.
Assemblywoman Buckley moved that the bill be referred to the Committee on Medical Malpractice Issues.
Motion carried.
Mr. Speaker announced if there were no objections, the Assembly would recess subject to the call of the Chair.
Assembly in recess at 8:23 a.m.
ASSEMBLY IN SESSION
At 8:24 a.m.
Mr. Speaker presiding.
Quorum present.
Assemblywoman Buckley moved that the Assembly stand in recess until the call of the Chair.
Recessed at 8:26 a.m.
ASSEMBLY IN SESSION
At 9:25 p.m.
Mr. Speaker presiding.
Quorum present.
REPORTS OF COMMITTEES
Mr. Speaker:
Your Committee on Medical Malpractice Issues, to which was referred Assembly Bill No. 1, has had the same under consideration, and begs leave to report the same back with the recommendation: Amend, and do pass as amended.
Bernie Anderson, Chairman
MOTIONS, RESOLUTIONS AND NOTICES
Assemblywoman Buckley moved that Gary Martin and Jim Mitchell of Camrac Studios be accepted as accredited press representatives, that they be assigned space at the press table in the Assembly chambers and that they be allowed use of appropriate broadcasting facilities.
Assemblywoman Buckley moved that all rules be suspended, reading so far considered second reading, rules further suspended, and that Assembly Bill No. 1 be declared an emergency measure under the Constitution and placed on third reading and final passage.
Motion carried unanimously.
general file and third reading
Assembly Bill No. 1.
Bill read third time.
The following amendment was proposed by the Committee on Medical Malpractice Issues:
Amendment No. 1.
Amend sec. 3, page 3, by deleting line 10, and inserting:
“treatment, care or custody, loss of earnings and loss of earning capacity.”.
Amend sec. 5, page 3, by deleting lines 14 through 43 and inserting:
“Sec. 5. 1. Except as otherwise provided in subsection 2 and except as further limited in subsection 3, in an action for damages for medical malpractice or dental malpractice, the noneconomic damages awarded to each plaintiff from each defendant must not exceed $350,000.
2. In an action for damages for medical malpractice or dental malpractice, the limitation on noneconomic damages set forth in subsection 1 does not apply in the following circumstances and types of cases:
(a) Organic brain damage;
(b) Hemiplegia, paraplegia or quadraplegia;
(c) Death of a parent, spouse or child;
(d) Total blindness;
(e) Actual physical loss of a limb, including a foot or hand;
(f) Permanent loss or damage to a reproductive organ resulting in sterility;
(g) A case in which the conduct of the defendant is determined to constitute gross malpractice; or
(h) A case in which, following return of a verdict by the jury or a finding of damages in a bench trial, the court determines, by clear and convincing evidence admitted at trial, that an award in excess of $350,000 for noneconomic damages is justified because of exceptional circumstances.
3. In an action for damages for medical malpractice or dental malpractice, in the circumstances and types of cases described in subsections 1 and 2, the noneconomic damages awarded to each plaintiff from each defendant must not exceed the amount of money remaining under the professional liability insurance policy limit covering the defendant after subtracting the economic damages awarded to that plaintiff. Irrespective of the number of plaintiffs in the action, in no event may any single defendant be liable to the plaintiffs in the aggregate in excess of the professional liability insurance policy limit covering that defendant.
4. This section is not intended to limit the responsibility of any defendant for the total economic damages awarded.
5. For the purposes of this section:”.
Amend section 9, page 4, by deleting lines 37 and 38 and inserting:
“malpractice, all of the parties to the action, the insurers of the respective parties and the attorneys of the respective parties shall attend”.
Amend sec. 14, page 9, line 18, by deleting “30” and inserting “64”.
Amend the bill as a whole by renumbering sections 18 through 26 as sections 50 through 58 and adding new sections, designated sections 18 through 49, following section 17, to read as follows:
“Sec. 18. Chapter 439 of NRS is hereby amended by adding thereto the provisions set forth as sections 19 to 43, inclusive, of this act.
Sec. 19. As used in sections 19 to 43, inclusive, of this act, unless the context otherwise requires, the words and terms defined in sections 20 to 28, inclusive, of this act have the meanings ascribed to them in those sections.
Sec. 20. “Incident” means an event, occurrence or situation involving the treatment of a patient that potentially could have injured the patient but did not actually cause the patient to suffer an unanticipated injury or require the patient to receive additional treatment.
Sec. 21. “Medical facility” means:
1. A hospital, as that term is defined in NRS 449.012;
2. An obstetric center, as that term is defined in NRS 449.0155; and
3. A surgical center for ambulatory patients, as that term is defined in NRS 449.019.
Sec. 22. “Patient” means a person who:
1. Is admitted to a medical facility for the purpose of receiving treatment; or
2. Receives treatment at a medical facility from a provider of health care.
Sec. 23. “Patient safety officer” means a person who is designated as such by a medical facility pursuant to section 39 of this act.
Sec. 24. “Provider of health care” means a person who is licensed, certified or otherwise authorized by the law of this state to administer health care in the ordinary course of the business or practice of a profession.
Sec. 25. “Repository” means the repository for health care quality assurance created pursuant to section 29 of this act.
Sec. 26. “Serious event” means an event, occurrence or situation involving the treatment of a patient that:
1. Causes the death of the patient; or
2. Compromises the safety of the patient and causes the patient to suffer an unanticipated injury which requires the patient to receive additional treatment.
The term does not include an incident.
Sec. 27. “Treatment” means any medication, drug, test or procedure conducted or administered to diagnose or remedy a physical or mental illness or condition.
Sec. 28. “Unanticipated injury” means an injury suffered by a patient as a result of treatment, where the injury:
1. Is not an intended or anticipated consequence of the treatment; or
2. Is of a manner, nature or type that does not occur ordinarily in the absence of a negligent or wrongful act or omission.
Sec. 29. 1. The repository for health care quality assurance is hereby created within the health division.
2. The health division shall, to the extent of legislative appropriation and authorization:
(a) Hire such staff as it determines to be necessary to carry out the provisions of sections 19 to 43, inclusive, of this act.
(b) Contract with persons and entities to carry out the provisions of section 32 of this act.
Sec. 30. 1. Except as otherwise provided in subsection 2:
(a) A person who is employed by a medical facility shall, within 6 hours after becoming aware of an incident or serious event that occurred at the medical facility, notify the patient safety officer of the facility of the incident or serious event; and
(b) The patient safety officer shall, within 18 hours after receiving notification pursuant to paragraph (a), report the incident or serious event to:
(1) The repository; and
(2) The representative designated pursuant to section 35 of this act, if that person is different from the patient safety officer.
2. If the patient safety officer of a medical facility personally discovers or becomes aware, in the absence of notification by another employee, of an incident or serious event that occurred at the medical facility, the patient safety officer shall, within 24 hours after discovering or becoming aware of the incident or serious event, report the incident or serious event to:
(a) The repository; and
(b) The representative designated pursuant to section 35 of this act, if that person is different from the patient safety officer.
3. The administrator shall prescribe the manner in which reports of incidents and serious events must be made pursuant to this section.
4. The administrator shall prescribe the form of a survey to be sent to each employee who makes a report pursuant to subsection 1. The survey must be in a form designed to obtain a confidential response from the employee as to whether:
(a) It is the opinion of the employee that the employee experienced any retaliation from a medical facility or provider of health care as a direct result of the reporting;
(b) If applicable, the employee was the subject of disciplinary action by a professional regulatory body as a direct result of the reporting or of the incident or serious event that led to the submission of the report; and
(c) To the extent of the employee’s knowledge, any remediation or other corrective action occurred in response to the reported incident or serious event to correct the situation or circumstances that caused or contributed to the incident or serious event.
5. The administrator shall cause the repository to send a copy of the survey to each such employee not earlier than 90 days nor later than 120 days after the report was submitted pursuant to subsection 1. The administrator shall direct that the responses to the survey be returned to the repository. The administrator shall take such actions as are necessary to ensure the confidentiality of these responses and to ensure that the responses are used solely to prepare aggregate data regarding the effects of the reporting required pursuant to subsection 1.
Sec. 31. The repository shall:
1. Collect and maintain reports received pursuant to subsections 1 and 2 of section 30 of this act;
2. Collect and maintain the responses received pursuant to subsection 5 of section 30 of this act; and
3. Ensure that such reports and responses and any additional documents created therefrom are protected adequately from fire, theft, loss, destruction and other hazards and from unauthorized access.
Sec. 32. The health division shall contract with one or more persons or entities, other than a provider of health care, to carry out the following functions:
1. Collection, analysis and evaluation of data regarding reports of incidents and serious events, including, without limitation, the identification of indicators of performance and patterns of frequency and severity at individual medical facilities and in individual geographic regions of this state;
2. Analysis and evaluation of data received on the responses submitted pursuant to subsection 5 of section 30 of this act;
3. Preparation and transmission to the repository of written recommendations for changes in health care practices and procedures to be instituted at individual medical facilities or on a statewide basis to reduce the number and severity of incidents and serious events in this state; and
4. Provision of any additional services that the administrator determines to be necessary or advisable.
Sec. 33. 1. Within 30 days after receiving a recommendation for a change in a health care practice or procedure transmitted pursuant to subsection 3 of section 32 of this act, the repository shall:
(a) Conduct an evaluation of the recommendation using the factors set forth in subsection 3; and
(b) Submit to the administrator the recommendation and its evaluation of the recommendation.
2. Within 30 days after receiving a recommendation and evaluation from the repository pursuant to subsection 1, the administrator shall approve or disapprove the recommendation using the factors set forth in subsection 3. If the administrator:
(a) Approves a recommendation, the administrator shall, within 30 days after the date of approval, notify the repository in writing that the recommendation has been approved.
(b) Disapproves a recommendation, the administrator shall, within 30 days after the date of disapproval, set forth in writing and transmit to the repository the reason for the disapproval.
3. When the repository evaluates a recommendation pursuant to subsection 1 and the administrator determines whether to approve or disapprove a recommendation pursuant to subsection 2, the following factors, without limitation, must be considered:
(a) Whether the recommendation may reasonably be expected to improve the quality of treatment administered to patients in this state;
(b) The feasibility of carrying out the recommendation;
(c) The cost of carrying out the recommendation, evaluated with respect to the probable financial burden that the recommendation will cause to be incurred by patients, insurers and medical facilities; and
(d) Any other factor that the repository or the administrator, as applicable, determines to be relevant.
Sec. 34. 1. Within 30 days after receiving notification from the administrator that a recommendation has been approved, the repository shall:
(a) If the recommendation pertains to a change in a health care practice or procedure at one or more individual medical facilities, cause a copy of the recommendation to be sent to those medical facilities.
(b) If the recommendation pertains to a change in a health care practice or procedure at medical facilities within a particular geographic area of this state, cause a copy of the recommendation to be sent to each medical facility located within that geographic area.
(c) If the recommendation pertains to a change in a health care practice or procedure at medical facilities on a statewide basis, cause a copy of the recommendation to be sent to all medical facilities.
2. All copies of recommendations required to be sent to medical facilities pursuant to this section must be sent in a manner pursuant to which receipt of the recommendations may be verified.
Sec. 35. 1. Each medical facility that is located within this state shall designate a representative for the notification of patients who have been involved in serious events at that medical facility.
2. A representative designated pursuant to subsection 1 shall, not later than 7 days after discovering or becoming aware of a serious event that occurred at the medical facility, provide notice of that fact to each patient who was involved in that serious event.
3. The provision of notice to a patient pursuant to subsection 2 must not, in any action or proceeding, be considered an acknowledgment or admission of liability.
4. A representative designated pursuant to subsection 1 may or may not be the same person who serves as the facility’s patient safety officer.
5. The administrator shall prescribe the manner in which patients must be notified pursuant to this section.
Sec. 36. 1. The repository shall compile the aggregate information pertaining to serious events contained in the reports that it receives pursuant to section 30 of this act and organize that information in several different manners that will be usable by any person or entity that may require that information, including, without limitation, by:
(a) Aggregating the information on a regional and a statewide basis;
(b) Organizing the information by applicability to a particular type of serious event; and
(c) Aggregating or organizing the information in any combination of possibilities described in this subsection.
2. The repository shall compile the aggregate information pertaining to the responses to the survey received pursuant to subsection 5 of section 30 of this act.
3. Any interested person or entity may request a copy of a report or information described in this section. The repository shall:
(a) Make such reports and information available at its place of business in accordance with chapter 239 of NRS; and
(b) Ensure that any report or information described in this section is made available only in an aggregated format and does not reveal the identity of a specific person or medical facility.
Sec. 37. Any report, document, recommendation and any other information compiled or disseminated pursuant to the provisions of sections 19 to 43, inclusive, of this act is not admissible in evidence in any administrative or legal proceeding conducted in this state.
Sec. 38. 1. Each medical facility that is located within this state shall develop, in consultation with the providers of health care who provide treatment to patients at the medical facility, an internal patient safety plan to improve the health and safety of patients who are treated at that medical facility. The plan must be approved by the repository.
2. The administrator shall, by regulation, prescribe the contents of a patient safety plan.
3. A medical facility shall submit its patient safety plan to the repository for approval in accordance with the requirements of this section. If the repository does not approve or disapprove the plan within 90 days after receiving the plan from the medical facility, the plan shall be deemed approved.
4. After a medical facility’s patient safety plan is approved, the medical facility shall notify all providers of health care who provide treatment to patients at the medical facility of the existence of the plan and of the requirements of the plan. A medical facility shall require that compliance with its patient safety plan is a condition of employment for all providers of health care who provide treatment to patients at that medical facility.
Sec. 39. 1. A medical facility shall designate an officer or employee of the facility to serve as the patient safety officer of the medical facility.
2. The person who is designated as the patient safety officer of a medical facility shall:
(a) Serve on the patient safety committee.
(b) Investigate and supervise the reporting of all incidents and serious events alleged to have occurred at the medical facility, including, without limitation, performing the duties required pursuant to section 30 of this act.
(c) Take such action as he determines to be necessary to ensure the safety of patients as a result of the investigation of any incident or serious event alleged to have occurred at the medical facility.
(d) Report to the patient safety committee regarding any action taken in accordance with paragraph (c).
Sec. 40. 1. A medical facility shall establish a patient safety committee.
2. Except as otherwise provided in subsection 3:
(a) A patient safety committee established pursuant to subsection 1 must be composed of:
(1) The patient safety officer of the medical facility.
(2) At least three providers of health care who provide treatment to patients at the medical facility.
(3) Two members of the public who reside in the community served by the medical facility. The members described in this subparagraph must not be agents, employees or contractors of the medical facility.
(b) A patient safety committee:
(1) Must not include more than one member of the executive or governing body of the medical facility.
(2) Must include members of the medical, nursing and pharmaceutical staff of the medical facility.
(c) A patient safety committee shall meet at least once each month.
3. The administrator shall adopt regulations prescribing the composition and frequency of meeting of patient safety committees at medical facilities having fewer than 25 employees and contractors.
4. A patient safety committee shall:
(a) Receive reports from the patient safety officer pursuant to section 39 of this act.
(b) Evaluate investigations and actions of the patient safety officer in connection with all reports of incidents and serious events alleged to have occurred at the medical facility.
(c) Review and evaluate the quality of measures carried out by the medical facility to improve the safety of patients who receive treatment at the medical facility. The review and evaluation described in this paragraph must include, without limitation, review and evaluation of any recommendations received pursuant to section 34 of this act
(d) Make recommendations to the executive or governing body of the medical facility to reduce the number and severity of incidents and serious events that occur at the medical facility.
(e) At least once each calendar quarter, report to the executive or governing body of the medical facility regarding:
(1) The number of incidents and serious events that occurred at the medical facility during the preceding calendar quarter; and
(2) Any recommendations to reduce the number and severity of incidents and serious events that occur at the medical facility.
Sec. 41. No person is subject to any criminal penalty or civil liability for libel, slander or any similar cause of action in tort if he, without malice:
1. Reports an incident or serious event;
2. Notifies another person of an incident or serious event;
3. Transmits information regarding an incident or serious event;
4. Compiles, prepares or disseminates information regarding an incident or serious event; or
5. Performs any other act authorized pursuant to sections 19 to 43, inclusive, of this act.
Sec. 42. 1. The administrator may impose a fine of not more than $1,000 against:
(a) Any medical facility that violates any of the provisions of sections 19 to 43, inclusive, of this act.
(b) An employee or officer of a medical facility who violates any of the provisions of sections 19 to 43, inclusive, of this act.
2. The administrator shall, before imposing the fine, notify the medical facility by certified mail that he will impose a fine for the violation unless the medical facility requests a hearing within 20 days after the notice is mailed.
3. If a hearing is requested, the administrator shall hold a hearing pursuant to the provisions of NRS 233B.121 to 233B.150, inclusive.
4. If a hearing is not requested within the prescribed period and the matter is not otherwise resolved, the administrator shall impose the fine and notify the medical facility by certified mail.
5. The decision of the administrator to impose a fine pursuant to this section is a final decision for the purposes of judicial review.
Sec. 43. The administrator shall adopt such regulations as the administrator determines to be necessary or advisable to carry out the provisions of sections 19 to 43, inclusive, of this act.
Sec. 44. Chapter 449 of NRS is hereby amended by adding thereto the provisions set forth as sections 45 and 46 of this act.
Sec. 45. 1. A medical facility or any agent or employee thereof shall not retaliate or discriminate in any manner against an employee of the medical facility or a person acting on behalf of the employee who in good faith:
(a) Reports to the board of medical examiners or the state board of osteopathic medicine, as applicable, information relating to the conduct of a physician which may constitute grounds for initiating disciplinary action against the physician or which otherwise raises a reasonable question regarding the competence of the physician to practice medicine with reasonable skill and safety to patients;
(b) Reports an incident or serious event to the repository for health care quality assurance created pursuant to section 29 of this act; or
(c) Cooperates or otherwise participates in an investigation or proceeding conducted by the board of medical examiners, the state board of osteopathic medicine or another governmental entity relating to conduct described in paragraph (a) or (b).
2. A medical facility or any agent or employee thereof shall not retaliate or discriminate in any manner against an employee of the medical facility because the employee has attempted to or intends to take an action described in subsection 1.
3. A medical facility or any agent or employee thereof shall not prohibit, restrict or attempt to prohibit or restrict by contract, policy, procedure or any other manner the right of an employee of the medical facility to take an action described in subsection 1.
4. As used in this section:
(a) “Physician” means a person licensed to practice medicine pursuant to chapter 630 or 633 of NRS.
(b) “Retaliate or discriminate” includes, without limitation:
(1) Frequent or undesirable changes in the location where the employee works;
(2) Frequent or undesirable transfers or reassignments;
(3) The issuance of letters of reprimand, letters of admonition or evaluations of poor performance;
(4) A demotion;
(5) A reduction in pay;
(6) The denial of a promotion;
(7) A suspension;
(8) A dismissal;
(9) A transfer; or
(10) Frequent changes in working hours or workdays,
if such action is taken, in whole or in part, because the employee took, attempted to take or intended to take an action described in subsection 1.
Sec. 46. 1. An employee of a medical facility who believes that he has been retaliated or discriminated against in violation of section 45 of this act may file an action in a court of competent jurisdiction.
2. If a court determines that a violation of section 45 of this act has occurred, the court shall award such damages as it determines to have resulted from the violation, including, without limitation:
(a) Compensatory damages;
(b) Reinstatement;
(c) Reimbursement of any wages, salary, employment benefits or other compensation denied to or lost by the employee as a result of the violation;
(d) Attorney’s fees and costs, including, without limitation, fees for expert witnesses; and
(e) Punitive damages, if the facts warrant the imposition of such damages.
3. In addition to any damages awarded pursuant to subsection 2, the court shall award interest on those damages at the prevailing rate.
4. The court may grant any equitable relief it considers appropriate, including, without limitation, issuing temporary, preliminary or permanent injunctive relief.
5. An action must be brought pursuant to this section within 2 years after the date of the last event constituting the alleged violation for which the action is brought.
6. A medical facility or any agent or employee thereof that violates the provisions of section 45 of this act is subject to a civil penalty of not more than $10,000 for each violation.
Sec. 47. Chapter 630 of NRS is hereby amended by adding thereto the provisions set forth as sections 48, 49 and 50 of this act.
Sec. 48. 1. A physician or any agent or employee thereof shall not retaliate or discriminate in any manner against an employee of the physician or a person acting on behalf of the employee who in good faith:
(a) Reports to the board information relating to the conduct of the physician which may constitute grounds for initiating disciplinary action against the physician or which otherwise raises a reasonable question regarding the competence of the physician to practice medicine with reasonable skill and safety to patients;
(b) Reports an incident or serious event to the repository for health care quality assurance created pursuant to section 29 of this act; or
(c) Cooperates or otherwise participates in an investigation or proceeding conducted by the board or another governmental entity relating to conduct described in paragraph (a) or (b).
2. A physician or any agent or employee thereof shall not retaliate or discriminate in any manner against an employee of the physician because the employee has attempted to or intends to take an action described in subsection 1.
3. A physician or any agent or employee thereof shall not prohibit, restrict or attempt to prohibit or restrict by contract, policy, procedure or any other manner the right of an employee of the physician to take an action described in subsection 1.
4. As used in this section, “retaliate or discriminate” includes, without limitation:
(a) Frequent or undesirable changes in the location where the employee works;
(b) Frequent or undesirable transfers or reassignments;
(c) The issuance of letters of reprimand, letters of admonition or evaluations of poor performance;
(d) A demotion;
(e) A reduction in pay;
(f) The denial of a promotion;
(g) A suspension;
(h) A dismissal;
(i) A transfer; or
(j) Frequent changes in working hours or workdays,
if such action is taken, in whole or in part, because the employee took, attempted to take or intended to take an action described in subsection 1.
Sec. 49. 1. An employee of a physician who believes that he has been retaliated or discriminated against in violation of section 48 of this act may file an action in a court of competent jurisdiction.
2. If a court determines that a violation of section 48 of this act has occurred, the court shall award such damages as it determines to have resulted from the violation, including, without limitation:
(a) Compensatory damages;
(b) Reinstatement;
(c) Reimbursement of any wages, salary, employment benefits or other compensation denied to or lost by the employee as a result of the violation;
(d) Attorney’s fees and costs, including, without limitation, fees for expert witnesses; and
(e) Punitive damages, if the facts warrant the imposition of such damages.
3. In addition to any damages awarded pursuant to subsection 2, the court shall award interest on the amount of damages at the prevailing rate.
4. The court may grant any equitable relief it considers appropriate, including, without limitation, issuing temporary, preliminary or permanent injunctive relief.
5. An action must be brought pursuant to this section within 2 years after the date of the last event constituting the alleged violation for which the action is brought.
6. A physician who violates the provisions of section 48 of this act is subject to a civil penalty of not more than $10,000 for each violation.”.
Amend sec. 18, page 10, by deleting lines 20 through 26, and inserting:
“Sec. 50. A physician licensed pursuant to this chapter shall not practice medicine in this state unless he maintains professional liability insurance in an amount of:
1. Not less than $1,000,000 per occurrence; and
2. Not less than $3,000,000 in the aggregate.”.
Amend sec. 25, page 13, line 40, by deleting “person;” and inserting “occurrence;”.
Amend sec. 25, page 13, line 41, by deleting “per occurrence.” and inserting:
“in the aggregate.”.
Amend sec. 26, page 13, line 43, by deleting:
“27 to 30,” and inserting:
“59 to 64,”.
Amend the bill as a whole by renumbering sections 27 through 39 as sections 61 through 73 and adding new sections designated sections 59 and 60, following sec. 26, to read as follows:
“Sec. 59. 1. An osteopathic physician or any agent or employee thereof shall not retaliate or discriminate in any manner against an employee of the osteopathic physician or a person acting on behalf of the employee who in good faith:
(a) Reports to the board information relating to the conduct of the osteopathic physician which may constitute grounds for initiating disciplinary action against the osteopathic physician or which otherwise raises a reasonable question regarding the competence of the osteopathic physician to practice medicine with reasonable skill and safety to patients;
(b) Reports an incident or serious event to the repository for health care quality assurance created pursuant to section 29 of this act; or
(c) Cooperates or otherwise participates in an investigation or proceeding conducted by the board or another governmental entity relating to conduct described in paragraph (a) or (b).
2. An osteopathic physician or any agent or employee thereof shall not retaliate or discriminate in any manner against an employee of the osteopathic physician because the employee has attempted to or intends to take an action described in subsection 1.
3. An osteopathic physician or any agent or employee thereof shall not prohibit, restrict or attempt to prohibit or restrict by contract, policy, procedure or any other manner the right of an employee of the osteopathic physician to take an action described in subsection 1.
4. As used in this section, “retaliate or discriminate” includes, without limitation:
(a) Frequent or undesirable changes in the location where the employee works;
(b) Frequent or undesirable transfers or reassignments;
(c) The issuance of letters of reprimand, letters of admonition or evaluations of poor performance;
(d) A demotion;
(e) A reduction in pay;
(f) The denial of a promotion;
(g) A suspension;
(h) A dismissal;
(i) A transfer; or
(j) Frequent changes in working hours or workdays,
if such action is taken, in whole or in part, because the employee took, attempted to take or intended to take an action described in subsection 1.
Sec. 60. 1. An employee of an osteopathic physician who believes that he has been retaliated or discriminated against in violation of section 59 of this act may file an action in a court of competent jurisdiction.
2. If a court determines that a violation of section 59 of this act has occurred, the court shall award such damages as it determines to have resulted from the violation, including, without limitation:
(a) Compensatory damages;
(b) Reinstatement;
(c) Reimbursement of any wages, salary, employment benefits or other compensation denied to or lost by the employee as a result of the violation;
(d) Attorney’s fees and costs, including, without limitation, fees for expert witnesses; and
(e) Punitive damages, if the facts warrant the imposition of such damages.
3. In addition to any damages awarded pursuant to subsection 2, the court shall award interest on the amount of damages at the prevailing rate.
4. The court may grant any equitable relief it considers appropriate, including, without limitation, issuing temporary, preliminary or permanent injunctive relief.
5. An action must be brought pursuant to this section within 2 years after the date of the last event constituting the alleged violation for which the action is brought.
6. An osteopathic physician who violates the provisions of section 59 of this act is subject to a civil penalty of not more than $10,000 for each violation.”.
Amend sec. 27, page 13, line 47, by deleting “person;” and inserting “occurrence;”.
Amend sec. 27, page 13, line 48, by deleting “per occurrence.” and inserting:
“in the aggregate.”.
Amend sec. 28, page 14, line 9, by deleting “29” and inserting “63”.
Amend sec. 28, page 14, line 10, by deleting “30” and inserting “64”.
Amend sec. 32, page 16, line 14, by deleting “29” and inserting “63”.
Amend sec. 33, page 16, line 17, by deleting “29” and inserting “63”.
Amend the bill as a whole by renumbering sec. 40 as sec. 75 and adding a new section designated sec. 74, following sec. 39, to read as follows:
“Sec. 74. 1. With respect to the duty set forth in subsection 3 of section 38 of this act, a medical facility shall submit its patient safety plan to the repository:
(a) Not later than August 31, 2003, if the medical facility was licensed pursuant to chapter 449 of NRS on or before July 1, 2003.
(b) Within 60 days after the date of licensure, if the medical facility was licensed pursuant to chapter 449 of NRS after July 1, 2003.
2. As used in this section:
(a) “Medical facility” has the meaning ascribed to it in section 21 of this act.
(b) “Repository” has the meaning ascribed to it in section 25 of this act.”.
Amend sec. 40, page 18, line 7, to read as follows:
“Sec. 75. 1. This section and sections 1 to 17, inclusive, 50 to 58, inclusive, and 61 to 73, inclusive, of this act become effective on October 1, 2002.
2. Sections 18 to 49, inclusive, and sections 59, 60 and 74 of this act become effective July 1, 2003.”.
Amend the preamble of the bill, page 1, by deleting line 7 and inserting:
“of Nevada; and
Whereas, Medical errors cause preventable injuries to be suffered by as many as one out of every 25 hospital patients in the United States; and
Whereas, Errors in the provision of health care have been estimated to cost more than $2,000,000 per year in a large teaching hospital, and preventable injuries related to the provision of health care cost the economy of the United States from $17,000,000,000 to $29,000,000,000 each year; and
Whereas, A report promulgated by the Institute of Medicine estimates that at least 44,000 persons and as many as 98,000 persons die each year as a result of medical errors, which is higher than the annual mortality rate attributable to motor vehicle accidents, breast cancer or acquired immune deficiency syndrome, thus making medical error the eighth leading cause of death in the United States; now, therefore,”.
Assemblyman Anderson moved the adoption of the amendment.
Mr. Speaker announced if there were no objections, the Assembly would recess subject to the call of the Chair.
Assembly in recess at 9:38 p.m.
ASSEMBLY IN SESSION
At 9:52 p.m.
Mr. Speaker presiding.
Quorum present.
Remarks by Assemblymen Anderson and Angle.
Amendment adopted.
Bill ordered reprinted, re-engrossed and to third reading.
Mr. Speaker announced if there were no objections, the Assembly would recess subject to the call of the Chair.
Assembly in recess at 9:55 p.m.
ASSEMBLY IN SESSION
At 11:20 p.m.
Mr. Speaker pro Tempore presiding.
Quorum present.
MOTIONS, RESOLUTIONS AND NOTICES
Assemblywoman Buckley moved that Assembly Bill No. 1 just returned from the printer, be placed on the General File.
Motion carried.
general file and third reading
Assembly Bill No. 1
Bill read third time.
Remarks by Assemblymen Anderson, Brower, Angle, Cegavske, Beers, Giunchigliani, Carpenter, Arberry, Goldwater, Gustavson, Freeman, Ohrenschall, Hettrick, Marvel, Perkins, Brown, Tiffany and Buckley.
Potential conflict of interest declared by Assemblymen Brower, Arberry and Ohrenschall.
Assemblyman Parks requested that the following remarks be entered in the Journal.
Assemblyman Anderson:
Thank you, Mr. Speaker pro Tempore. This bill provides for civil justice reform in the areas of medical and dental malpractice. The act prescribes a limit for recovery of non-economic damages in certain circumstances. It establishes several liability for non-economic damages, provides for mandatory settlement conferences and affidavits supporting the allegations, reduces the statute of limitations, provides for fast tracking of malpractice actions, has mandatory training for judges in handling these cases, establishes minimums for professional liability insurance, and establishes reporting requirements of certain boards and the repeal of the medical and dental screening panel. The bill also provides for mandatory medical error reporting with a protection for persons who report such action. The effective date of this piece of legislation is October 1, 2002. There are other provisions of the bill that deal with constitutional problems of ex post facto.
Assemblyman Brower:
Thank you very much, Mr. Speaker pro Tempore. I just have to make a disclosure before we vote on this bill. I am a shareholder in a law firm that represents and has represented both plaintiffs and defendants in medical malpractice cases. As a shareholder in that law firm, I may have a pecuniary interest in legislative measures that limit the amount of damages that a plaintiff may recover in a medical or dental malpractice action, because such measures could have a negative effect on the revenues of my law firm. However, because the detriment accruing to me as a result of the enactment of those measures is not greater than that accruing to any other shareholder in any other law firm that may represent plaintiffs in a medical or dental malpractice action, the ethics law allow me to vote on and participate fully in the consideration of those measures.
In addition, a registered lobbyist who represents certain medical groups on the issue of medical malpractice rents office space from my firm. Other than the fixed amount that this lobbyist pays my firm for rent, my firm does not receive any other revenue from him, including no revenue from his representation of those medical groups. The amount of money that my firm receives from the lobbyist for rent does not create a pecuniary interest or a commitment in a private capacity to the lobbyist on the part of my firm because of the amount of rent and payment is not contingent upon who the lobbyist represents around the issues on which he lobbies. Therefore, after conferring with legislative counsel, it has been determined that the ethics laws allow me to vote on and participate fully in the consideration of measures relating to medical and dental malpractice. Thank you, Mr. Speaker pro Tempore.
Assemblywoman Angle:
Thank you, Mr. Speaker pro Tempore. My concerns about the amendment that we passed force me to feel that this is not tort reform. I am not going to vote in favor of this because I feel true tort reform would have reflected more of the provisions of MICRA. I believe that true tort reform will be taken up in our regular legislative session. I believe that true tort reform will be reflected in SB 2, that will be passed out of the Senate. I will therefore be voting yes on SB 2 and no on AB 1. Thank you, Mr. Speaker pro Tempore.
Assemblywoman Cegavske:
Thank you, Mr. Speaker pro Tempore. It was our job to come to this legislature, to vote on something to help our doctors in Nevada: tort reform. We worked hard and we worked long, for many days. I am sorry that my colleagues have chosen to cast stones. I am always one of those who has said, as my colleagues do, that we’re here to do what is right. And I want to do what is right and what is in the best interest of my constituents and the state of Nevada. That is always what I look at first. I am going to be voting against AB 1 as it is written. Insurance will not be guaranteed to be lowered. We have heard that over and over again. That was our task. This bill does not do that. Our task was to make sure that insurance premiums were lowered to help out our doctors. I am wholeheartedly in support of SB 2 and will vote to support SB 2, which passed the Senate tonight. I encourage all my colleagues to look at that bill, because the Assembly bill does not have the means to take care of our doctors and to help the immediate problem that we see in the long term. Thank you.
Assemblyman Beers:
Thank you, Mr. Speaker pro Tempore. This is perhaps the most difficult vote that I have ever faced. I’ve only been doing this for three and half, four years, as you all know. I support tort reform. These amendments pretty much ensure that this isn’t it. I support our Governor, but these amendments are not what our Governor has agreed to. Mostly, I support my constituents. Their doctors have left. The patients they have left behind are looking to me to fix the problem. These amendments ensure that this bill won’t do it. So, I rise in opposition, sadly. I look forward to voting affirmatively on Senate Bill 2. Thank you, Mr. Speaker pro Tempore.
Assemblywoman Giunchigliani:
Thank you, Mr. Speaker pro Tempore. I rise in support of Assembly Bill No. 1. It is a combination of months of testimony that were taken by the Interim Legislative Committee. Input was provided by all concerned parties, openly and not behind closed doors. Then, over the last several days, additional efforts were made to take that input and refine it. That is why our leadership, the Senate leadership and the Governor sat down and worked out this consensus legislation, including the amendment that was adopted this evening. The Governor’s bill before us tonight is historic, it’s fair and it’s compassionate. I know many of us have sections that we dislike or are concerned with, but we did achieve the following goals:
We protected the trauma center for those of us from southern Nevada;
We instituted caps that stabilize, as well as make it predictable for the insurance industry, so that our doctor’s rates will be eventually helped;
It will bring competition back into the state from the insurance industry;
It will protect patients and their rights.
This bill, in other words, minimizes everyone’s pain and suffering. I feel confident saying this because this evening, for those of you who were not available to sit in the hearings, we had testimony from two different insurance individuals. The executive director of MLAN, which is the state doctors new insurance program, said this bill contains, “meaningful tort reform and it is a quantum leap forward.” No one in their right mind would assume that the rates would immediately go down. That is not feasible. If anyone is telling someone that they will, then they are not being truthful. You always have a time lag, whether its auto insurance or medical insurance.
In conclusion, we know that partisanship sometimes enters into these halls, but we’ve refrained so far. In fact, our leadership has worked closely with this governor and will continue to do so, despite the frustration that he noted on this evenings television broadcast. He said, “most of them are doing great. But there are one or two that better get a heart; and they ought to have a lot bigger heart than their brain because a couple of them don’t have a very big brain, in my opinion.” Let’s show the Governor, the doctors, the nurses, the patients, and yes, the general public, that we have both brains, and heart. I would urge you to vote yes on this historic tort reform bill. After all, it was what we were sent here to do. Thank you, Mr. Speaker pro Tempore.
Assemblyman Carpenter:
Thank you, Mr. Speaker pro Tempore. I was not on the select committee, but I sat through most of all the sessions. There were a lot of great things done. Things we needed to do. There are two areas that really bother me as a rural legislator. One that bothers me is the reporting requirements. After reading that, I think it is going to be a real burden to the rural hospitals to have to do this. I think the cost is going to be very high. A lot of them now, you know, are just about broke. I’m not against having reporting requirements. We probably need some. My feeling is, though, that an amendment like this should have been discussed, where we could have had meaningful hearings, where everybody could come in and have their say, so that we could come up with something that would really work. So I hope that the people on the conference committee will consider that, and consider the rurals especially. There may be facilities all over the state that this could very well affect.
I am also concerned about the mandatory million dollar and three million dollar insurance requirements of everyone that has a medical license. Out in Wells, Nevada, we are lucky to have a doctor at the clinic there. He does not have hospital privileges. The doctor that I go to does not have hospital privileges. I think there are a lot of doctors that probably don’t need those high amounts of insurance, especially if it costs a lot of money to obtain it. People that are surgeons, I understand. They need all the insurance they can get. But, family doctors just taking care of people, I think there should be something in the bill so it is not mandatory like it is. I hope the people who go to conference will consider those two points, because I am quite concerned about them.
Assemblyman Arberry:
Thank you, Mr. Speaker pro Tempore. I just need to disclose that I sit on the board of governor’s of one of the hospitals. But I will be voting. This bill does not affect me one way or the other.
Assemblyman Goldwater:
Thank you, Mr. Speaker pro Tempore. To you and through you to the Chairman of the Standing Committee on Medical Malpractice Issues. Can I inquire what the vote of the committee was on the bill and the amendment?
Assemblyman Anderson:
Thank you, Mr. Speaker pro Tempore. The committee had three separate votes on the bill. The first vote, with the amendments to section one through six, of the original bill, was unanimous. Those remaining sections, including the medical error reporting section, was unanimous. A final vote for direct reference to the will of the committee, was also unanimous. All three votes were unanimous, with all fifteen members voting and present for the final vote, though not all fifteen were present for the first.
Assemblyman Gustavson:
Thank you, Mr. Speaker pro Tempore. We are all here for one reason and that is for tort reform. We have doctors, many doctors, that are saying they want to leave. Some have left already. The Trauma Center closed in Las Vegas. So, we are here to try and pass a meaningful bill. This particular bill, Assembly Bill 1, in my opinion, is not the right bill. I feel it has many flaws in it, which have been mentioned. There is also an issue there, too, that this bill does not cover all doctors, all the emergency facilities throughout the state. I am concerned, as my colleague from Elko mentioned, about the one million and three million dollar requirement that all physicians must have. It would affect rural communities. Patients taken to the nearest emergency center, whether it be Henderson, Pahrump or anywhere else in the state, that does not have a trauma center, this cap would not affect them, the $50,000 cap. Therefore, you could see some doctors changing their practice, whether personal or private or trauma center or an emergency room, going to where they can have this other cap, therefore being protected. So we might be losing some good physicians from one area to another area. This is one of the issues that has not been brought up in this body. I was not a member of the committee, but I have sat and watched for hours on my monitor in my office. Both sides of this issue, Senate Bill 2 and Assembly Bill 1. I will support Senate Bill 2, as it has gone so far. This bill, Assembly Bill 1, I can’t support with the flaws that are in it. We do need to pass some legislation, but this is not the right piece.
Assemblyman Nolan:
Thank you, Mr. Speaker pro Tempore. One of the issues that had been discussed by our colleagues was the issue of the one million and three million dollar liability caps. It wasn’t brought to our attention that approximately 40 percent of the physicians in this state do not carry a three million dollar cap because they do not have hospital duties that require them to do so. Apparently, this was not an issue, according to the physicians. It was discussed in length, with this particular amendment, and the amendment, as it’s read, would require them to now carry a three million dollar cap. That would be all physicians. Forty percent of the physicians who currently don’t would now be required to.
About eight or ten years ago, my wife when she was pregnant with my youngest son, developed a very rare form cancer which was inoperable until after she was able to deliver the child. It was misdiagnosed by the doctors. When it was discovered that it was a malignant, rare form of cancer, we didn’t have the right specialist in Las Vegas to treat her. So, we had to take her to UCLA, where she was treated by surgical oncologists. In Las Vegas, last year, after this eight-year period, we had two surgical oncologists in Las Vegas. Now we have one because one has left. We used to have two pediatric endocrinologists. They dealt with not just southern Nevada’s children who have rare diseases, but the entire state’s. The rest of the state was sharing in those people’s talents. Now we only have one, and that one is talking about leaving. If we leave here, and we don’t stem the exodus of physicians from Nevada, then we have done absolutely nothing.
We spent quite a bit of time recessed, prior to coming back into this session. I know some of you were kind of perturbed at the fact that we were spending so much time out of here. But in order to get these issues answered, we contacted the physicians and brought in the physician representatives, to talk to us and had them look at this amendment. They indicated to us that they had not seen the amendment and the provisions with the one and three million dollar cap, as well as the whistleblower provisions, which were not agreed to. They would be harmful and would not help. So, under those provisions, unfortunately, I find myself voting against this bill. I believe a no vote is a vote for the doctors. Thank you, Mr. Speaker pro Tempore.
Assemblywoman Freeman:
My remarks will be very brief. I will be supporting the bill. I will say that, through the years, on these kinds of issues, we always have been in need of flexibility to address the issues of the delivery of health care in the rural areas. I would ask that after this bill goes out tonight, that we do address that, whether its in a conference committee or in the Senate. I have heard our representatives from Yerington, Elko and other rural areas, ask for that need for flexibility. I’m asking that before we vote this out, the final vote, that we do that for the rurals. Thank you, Mr. Speaker pro Tempore.
Assemblywoman Ohrenschall:
I merely wish to disclose that I am a member of the state bar of Nevada, but this bill will not be affect me in any way whatsoever and certainly in no way different from any other person similarly situated. I will be voting.
Assemblyman Hettrick:
Thank you, Mr. Speaker pro Tempore. I have to say I hate to speak after so many others because they leave so little to say. It was well expressed. There is much good in this bill. The intentions of the Assembly committee that worked on this bill and the members are without question attempting to do what they believe is the right thing. We voted for this bill in pieces, as the chairman indicated. And, in pieces, much of this bill is livable, even though we might not agree with every part of that piece. As a piece, we could vote for it. The issue then becomes when the bill as a whole is put together. We have to weigh what that final effect actually is. We had hoped to see more of those pieces from before be things we could support. And we believed, in many ways, it would come down that way.
In the end, after our discussions and the information we received after the hearings, as a matter of fact, we had grave concerns that this bill in total was something that we could not support. As a package, again, there is very much in this bill that is good. I do have major concerns with portions of this bill. I believe the reporting requirements are onerous and would be extremely detrimental to the rural hospitals. I don’t think they can comply with these. There is no flexibility. I think that was just mentioned by one of our colleagues. I appreciate those comments.
The requirement of one million and three million for coverage for every doctor in the state of Nevada, is onerous. In the small communities, in the small hospitals, these are not required. In towns throughout Nevada that have no hospital, they are not required to have these kinds of limits. We are going to force doctors in small, rural communities to take limits they don’t need, can’t use and they will be extremely expensive. I just don’t think the flexibility is built into this bill, to give us what we need. We heard that 40 percent of the doctors, as it has been mentioned, don’t need this coverage because they don’t do surgery or those kinds of procedures. They are administrators. They are people who are not working where these kind of coverages are required. This is only a boon to the insurance companies. We are here trying to reform insurance. We are going to force every doctor in the state to buy a million or three million dollar policy, and the insurance companies are going to sell it to them. I don’t think that’s the intent of this bill.
We believe what we saw passed off the Senate floor a few minutes ago has more of the ingredients we can support. We are not here trying to make this a partisan issue. We think the Speaker, the Majority Leader and the Committee Chairman treated us very fairly and worked with us. We appreciate all that. This is not an attempt to make this a partisan issue. It is an attempt to express our feelings and our belief that this just does not do what needs to be done. Given these concerns, and I repeat what you have heard from every member of our caucus, we support meaningful tort reform. We are more than willing to vote for that. We are hopeful that what comes out of this is not necessarily Senate Bill 2—although we prefer that result at this moment—but a meaningful result from the conference committee, with a majority from this house working hard in that conference committee to make something we can all support. Thank you, Mr. Speaker pro Tempore.
Assemblyman Marvel:
Thank you, Mr. Speaker pro Tempore. Reluctantly, I have to echo the sentiments and concerns of my Minority Leader and certainly my colleague from Elko. I think I am probably one of the earliest proponents, in this House, for tort reform. And definitely we are going to get tort reform before we sine die from this session. I apologize to our chairman, for I did vote in favor of the bill earlier this evening in committee, but information has been developed since the vote was taken that makes me uncomfortable with the bill, particularly as it regards some our rural hospitals. Until after the next election, I’m still a rural legislator and I have to vote for the best interests of my rural hospitals. Thank you.
Assemblyman Perkins:
Thank you, Mr. Speaker pro Tempore. You know, we came here this week to provide relief for doctors, as well as protect the rights of victims of malpractice. Because this is special session is to provide that relief and protection as swiftly as possible, to reduce the impact on taxpayers. I have the utmost respect for doctors. One of my greatest heroes is my son’s oncologist. Like most parents, the doctors who delivered my children were very important people in our lives. The doctor who took care of my father’s medical needs, the pediatricians who practically helped raise my children—these are all very special people to the Perkins family. That is why that I feel it is so important that we leave here, having done what we need to do, to make sure every Nevada family continues to have access to their doctors. I would not vote on anything that I believed would not accomplish this goal.
I am very disappointed that a few big insurance companies, who don’t necessarily know or understand Nevada, seemed to have succeeded in misleading some doctors that this bill we are voting on tonight will not accomplish this goal. This, in spite of the fact, that the Governor, Lieutenant Governor, Senate Majority and Minority Leaders, the Assembly Assistant Majority Leader and I, stood together on the Capitol steps yesterday, with Dr. Ike Khan, one of the leaders of the Southern Nevada Physicians Task Force on this issue nearby, to talk about this bill as a meaningful and workable compromise that would provide relief to Nevada’s patients and physicians. This, in spite of the fact that two experts on insurance in Nevada today, testified before our committee that they believed this is a good bill that will accomplish our critical goals. Contrary to what has been said, our committee heard no testimony that there would not be relief.
Relative to the amendments, Mr. Speaker pro Tempore, the amendments, as well, were agreed to by the folks from the other House and the Governor. The amendments only added medical error reporting to this bill and did some technical cleanup. Medical error reporting was the substantive amendment to this bill. So, for people to suggest that they are not going to vote for it because it’s not tort reform, because we only added more reporting, I would have to take issue with. This is bi-partisan, its bi-cameral and it’s swift. I urge you all to support the Governor’s consensus tort reform bill. Thank you, Mr. Speaker pro Tempore.
Assemblyman Brower:
Thank you very much, Mr. Speaker pro Tempore. I have worked as part of a national task force for the last year on tort reform and specifically tort reform aimed at the medical malpractice problem that many states, including this state, are experiencing. I appreciate the good faith differences that the members of this body may have over the particular language in this bill. Let me remind my colleagues, Mr. Speaker pro Tempore, that this is the only bill that we have before us. The mission of the special session was and is tort reform, to address to the medical malpractice issue. Here we are with a bill. It’s the only bill that we are going to see on this floor, during this special session. It is not perfect. I have serious concerns over the amendments to the bill, but it is the only bill we have. Senate Bill 2 has not passed the Senate.
I urge this body to get this bill, this imperfect bill, to conference where the good faith differences that we have can be worked out. Let’s keep our eyes on the ball. We need to do something. We need to pass a bill to keep this process moving forward, to work with the Senate and pass meaningful reform. This may be only the first step, but we need to take that step, to get to the ultimate goal—to provide relief to the physicians and patients and the people of this state. So lets get this imperfect bill out of this house, into conference; let’s complete our work; let’s accomplish our mission. Thank you, Mr. Speaker pro Tempore.
Assemblyman Brown:
Thank you, Mr. Speaker pro Tempore. This is truly one of those classic dilemmas, where you have a principle but it is cloaked with some garments you don’t find terribly attractive or perhaps somewhat offensive. I do not believe that the bill we are asked to vote on at this time is the consensus or the Governor’s consensus bill. I think it is a considerably different animal. Not withstanding, I believe in the process and believe that we need to move this forward. I believe this is a work in progress. I look forward to seeing its further development in conference committee and I’m prepared to support it, on that basis. Thank you very much.
Assemblywoman Tiffany:
Thank you, Mr. Speaker pro Tempore. I have been sitting here, thinking I really did not want to get up and talk about this bill. If there is anyone that has had to go to a doctor and be saved, let alone recover from an injury, it’s me. If we do anything to chase out one more specialist from the State of Nevada, that could save a life, I just say shame on us. I had eight trauma, high-risk doctors working on me, to save my life. Eight of them. Those are the guys that are leaving now. Those are the ones that are calling up, those are the ones I’m running into at the door. It is no longer that a doctor may close his doors, but that the doctors have closed their doors and are gone. So tort reform, for me, was absolutely imperative.
When I was recovering in California, I had a number of those doctors sit on my bed and talk to me about what was happening in Nevada. I vowed on my recovery bed that I would come here and do everything I could, to keep the doctors practicing in Nevada. So, I very, very early on was in full support, particularly for the California MICRA bill. When the Governor brought a few of us in to brief us on what he felt was a reasonable bill for tort reform, I have to say I was pretty darned pleased. I thought it was very reasonable. Now, when I see the bill that is sitting in front of us, that’s not the bill we were briefed on. I am going to vote against this bill.
I have absolute faith and confidence that through the conference committee we will come up and leave this session with a tort reform bill that will be meaningful. We must keep quality and access of medical care in Nevada and stop any of our voters from leaving and going to California for better medical care. That’s sad. I did not want to have to get to this today. I have to say Assembly Bill 1 is not the tort reform package that is going to get us where we need to be. I will be very much looking forward to what comes out of this conference committee, with the full intent of walking out of here with a comprehensive tort reform package. Thank you, Mr. Speaker pro Tempore.
Assemblywoman Buckley:
Thank you, Mr. Speaker pro Tempore. I rise in support of Assembly Bill 1. I think it is important to remind ourselves what is in Assembly Bill 1. A complete restructuring of the judicial process for medical malpractice cases. Instead of cases being delayed in a screening panel and languishing for 18 months, driving the costs for all sides up through the ceiling, we are instituting fast tracking for medical malpractice cases. We are requiring cases to be brought within two years or be forever barred from consideration. In addition, we are requiring an affidavit of an expert, tightening those requirements, requiring the expert to be certified in a field similar to the area of malpractice alleged, to ensure that cases are meritorious upon filing. Institution of mandatory settlement conferences and judicial training to ensure that especially new appointees to the bench have training in these complex cases that they will hear. There is shortening of the statute of limitations, instead of four years, a three year timeline. There are caps on non-economic damages. The bill imposes a $350,000 cap on non-economic damages in medical malpractice cases.
There are exceptions and I think when you look at these exceptions—brain damage, paraplegia—these are the victims we want to make sure have redress. We are here to protect our doctors, to ensure access to care, so that every one of our constituents has a physician of their choice, while at the same time ensuring those who are catastrophically injured have some protection. We also have special protections for trauma surgeons. We are so fortunate to have talented trauma surgeons in certain communities. This bill grants a $50,000 cap, similar to the sovereign immunity cap, to keep those trauma surgeons working and to keep our trauma centers open. The joint and several liability provisions in the bill eliminates a physician being the deep pocket for pain and suffering damages. The bill also contains sanctions, tightening of sanctions against attorneys to address non-meritorious cases, if they are brought; and requiring a judge to sanction an attorney who is bringing a frivolous case. The bill does require mandatory insurance coverage. I was surprised to hear concerns raised at this late date, because the physicians brought this language to us, in the Governor’s consensus bill. In addition to the $350,000 cap, for the catastrophic cases, non-economic damages are limited to the amount of liability insurance. So, conceivably, in those cases, if the economic damages are high, say $800,000, someone who is a paraplegic would only have a $200,000 pain and suffering award. The reason why the policy requirements were put in, at the request of the physicians, was that the cap would be meaningless, if they did not have that. The reason the physicians came to the Governor, to ask that be included, was because they did not want to be exposed for non-economic damages, pain and suffering, and to have their personal assets at risk. Parties in good faith said that the insurance policies pay for this anyway. Why don’t we provide some assurance to our physicians, so they stay? This codified the practice of saying “your personal assets will not be at risk for non-economic damages above your policy limits.”
This bill also includes medical error reporting. Again, a consensus item, agreed to by the Governor, by the Senate and by the Assembly, for an important reason. Page 2 of the bill: “Medical errors cause preventable injuries to be suffered by as many as one out of 25 hospital patients in the United States.” For the last several sessions, we have heard testimony from our nurses. They are concerned about staffing patterns, they are concerned about errors in the hospitals. What they want to do is not to create a punitive system but to collect the errors so that systems can change. The medical error reporting system is confidential. In our original draft of the proposal we shared with the Governor, it was open. What he urged us to consider is let’s first start fixing the system. Let’s fix the system errors. If medication errors are being missed, let’s address that. There was a famous case in Arizona where someone was injected with a clear substance, they thought it was the anesthesia. It was not. The patient died. The purpose of medical error reporting is to correct those systems, not to blame, not to punish, but to make sure hospitals begin identifying the vials. That is why medical error reporting is part of a discussion of medical malpractice. If we can reduce errors, we lower premiums. We lower costs. We save lives. That is why it is in the bill.
I encourage all of my colleagues to raise the caliber of the debate on medical malpractice this session. Physicians are scared. Patients are scared. Our constituents are scared. It is time for us to rise, to show statesmen like behavior, to not engage in blame games, to work on a quality bill, which is what this is. All of us need to continue to hear testimony, concern and debates and have a product that we will all be proud to put our names on. Some of our colleagues say, ”This isn’t the bill. These amendments change the bill.” Let’s be honest. This is the Governor’s bill, reached in consensus, agreed to by the physicians in Carson City. There are now concerns being raised. Let us address those concerns, let us finish this session with a package that we are all proud to bring home. Thank you, Mr. Speaker pro Tempore.
Roll call on Assembly Bill No. 1:
Yeas—32.
Nays—Angle, Beers, Carpenter, Cegavske, Gustavson, Hettrick, Martin, Marvel, Nolan, Tiffany—10.
Assembly Bill No. 1 having received a constitutional majority, Mr. Speaker pro Tempore declared it passed, as amended.
Bill ordered transmitted to the Senate.
MOTIONS, RESOLUTIONS AND NOTICES
Assemblywoman Buckley moved that all rules be suspended and that Assembly Bill No. 1 be immediately transmitted to the Senate.
Motion carried unanimously.
UNFINISHED BUSINESS
Signing of Bills and Resolutions
There being no objections, the Speaker and Chief Clerk signed Assembly Concurrent Resolutions Nos. 1, 2; Assembly Resolutions Nos. 1, 2, 3; Senate Bill No. 1.
Assemblywoman Buckley moved that the Assembly adjourn until Wednesday, July 31st, 2002 at 12:00 p.m.
Motion carried.
Assembly adjourned at 12:10 a.m.
Approved:Richard D. Perkins
Attest: Jacqueline Sneddon
UNION LABEL