THE THIRD DAY
Carson City(Wednesday), July 31, 2002
Senate called to order at 10:22 a.m.
President Hunt presiding.
Roll called.
All present.
Prayer by the Chaplain, Pastor Bruce Henderson.
Our Father who art in heaven, hallowed be Thy Name.
As the saying goes, Wednesday’s child is loving and giving. Today is Wednesday. May we see traces of Wednesday’s child here in these chambers today. May we be loving and giving for our people as You always are toward us. We pray this today for tomorrow is Thursday. And, Thursday’s child has to work hard to make a living.
Thank you.
Amen.
Pledge of allegiance to the Flag.
Senator Raggio moved that further reading of the Journal be dispensed with, and the President and Secretary be authorized to make the necessary corrections and additions.
Motion carried.
MESSAGES FROM THE ASSEMBLY
Assembly Chamber, Carson City, July 31, 2002
To the Honorable the Senate:
I have the honor to inform your honorable body that the Assembly on this day passed, as amended, Assembly Bill No. 1.
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Patricia R. Williams |
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Assistant Chief Clerk of the Assembly |
MOTIONS, RESOLUTIONS AND NOTICES
Senator Raggio moved that the following persons be accepted as accredited press representatives, and that they be assigned space at the press table and allowed the use of the appropriate media facilities: CAMRAC STUDIOS, Gary Martin and Jim Mitchell.
Motion carried.
INTRODUCTION, FIRST READING AND REFERENCE
Assembly Bill No. 1.
Senator Rawson moved that the bill be referred to the Committee of the Whole.
Motion carried.
GENERAL FILE AND THIRD READING
Senate Bill No. 2.
Bill read third time.
The following amendment was proposed by the Committee of the Whole:
Amendment No. 2.
Amend section 1, page 2, line 6, by deleting “2” and inserting “3”.
Amend section 1, page 2, line 15, after “whether” by inserting “or not”.
Amend section 1, page 2, line 30, by deleting:
“as a result” and inserting:
“, exclusive of interest computed from the date of judgment, to or for the benefit of any claimant arising out”.
Amend section 1, page 2, line 34, after “2.” by inserting:
“Except as otherwise provided in subsection 3 and NRS 41.505:
(a) A hospital other than a hospital described in paragraph (a) of subsection 1;
(b) An employee of a hospital described in paragraph (a); and
(c) A physician or dentist licensed under the provisions of chapter 630, 631 or 633 of NRS who renders care or assistance in a hospital described in paragraph (a), whether or not the care or assistance was rendered gratuitously or for a fee,
that in good faith renders care or assistance necessitated by a sudden, unexpected situation or occurrence resulting in an acute life-threatening medical condition demanding immediate medical attention, for which the patient enters the hospital through its emergency room, may not be held liable for more than $50,000 in civil damages, exclusive of interest computed from the date of judgment, to or for the benefit of any claimant arising out of any act or omission in rendering that care or assistance if the care or assistance is rendered in good faith and in a manner not amounting to gross negligence or reckless, willful or wanton conduct.
3.”.
Amend section 1, page 2, line 40, by deleting “subsection 1” and inserting:
“subsections 1 and 2”.
Amend section 1, page 2, line 44, by deleting “3.” and inserting:
“4. If:
(a) A physician or dentist provides follow-up care to a patient to whom he rendered care or assistance pursuant to subsection 1 or 2;
(b) A medical condition arises during the course of the follow-up care that is directly related to the original medical condition for which care or assistance was rendered pursuant to subsection 1 or 2; and
(c) The patient files an action for malpractice based on the medical condition that arises during the course of the follow-up care,
there is a rebuttable
presumption that the medical condition was caused by the care or assistance
rendered pursuant to subsection 1 or 2 and that the limitation on liability
provided by subsection 1 or 2 applies with respect to the medical condition
that arises during the course of the follow-up care.
5.”.
Amend section 1, page 2, line 45, after “1” by inserting “or 2”.
Amend the bill as a whole by adding a new section designated sec. 1.5, following section 1, to read as follows:
“Sec. 1.5. NRS 41.505 is hereby amended to read as follows:
41.505 1. Any physician or registered nurse who in good faith gives instruction or provides supervision to an emergency medical attendant or registered nurse, at the scene of an emergency or while transporting an ill or injured person from the scene of an emergency, is not liable for any civil damages as a result of any act or omission, not amounting to gross negligence, in giving that instruction or providing that supervision. An emergency medical attendant, registered nurse or licensed practical nurse who obeys an instruction given by a physician, registered nurse or licensed practical nurse and thereby renders emergency care, at the scene of an emergency or while transporting an ill or injured person from the scene of an emergency, is not liable for any civil damages as a result of any act or omission, not amounting to gross negligence, in rendering that emergency care.
2. Except as otherwise provided in subsection 3, any person licensed under the provisions of chapter 630, 632 or 633 of NRS and any person who holds an equivalent license issued by another state, who renders emergency care or assistance in an emergency, gratuitously and in good faith, is not liable for any civil damages as a result of any act or omission, not amounting to gross negligence, by him in rendering the emergency care or assistance or as a result of any failure to act, not amounting to gross negligence, to provide or arrange for further medical treatment for the injured or ill person. This section does not excuse a physician or nurse from liability for damages resulting from his acts or omissions which occur in a licensed medical facility relative to any person with whom there is a preexisting relationship as a patient.
3. Any person licensed under the provisions of chapter 630, 632 or 633 of NRS and any person who holds an equivalent license issued by another state who renders emergency obstetrical care or assistance to a pregnant woman during labor or the delivery of the child is not liable for any civil damages as a result of any act or omission by him in rendering that care or assistance if:
(a) The care or assistance is rendered in good faith and in a manner not amounting to gross negligence or reckless, willful or wanton conduct;
(b) The person has not previously provided prenatal or obstetrical care to the woman; and
(c) The damages are reasonably related to or primarily caused by a lack of prenatal care received by the woman.
A licensed medical facility in which such care or assistance is rendered is not liable for any civil damages as a result of any act or omission by the person in rendering that care or assistance if that person is not liable for any civil damages pursuant to this subsection and the actions of the medical facility relating to the rendering of that care or assistance do not amount to gross negligence or reckless, willful or wanton conduct.
4. Any person licensed under the provisions of chapter 630, 632 or 633 of NRS and any person who holds an equivalent license issued by another state who:
(a) Is retired or otherwise does not practice on a full-time basis; and
(b) Gratuitously and in good faith, renders medical care within the scope of his license to an indigent person,
is not liable for any civil damages as a result of any act or omission by him, not amounting to gross negligence or reckless, willful or wanton conduct, in rendering that care.
5. Any person licensed to practice medicine under the provisions of chapter 630 or 633 of NRS or licensed to practice dentistry under the provisions of chapter 631 of NRS, who renders care or assistance to a patient at a health care facility of a governmental entity or a nonprofit organization, is not liable for any civil damages as a result of any act or omission by him in rendering that care or assistance if the care or assistance is rendered gratuitously, in good faith and in a manner not amounting to gross negligence or reckless, willful or wanton conduct.
6. As used in this section:
(a) “Emergency medical attendant” means a person licensed as an attendant or certified as an emergency medical technician, intermediate emergency medical technician or advanced emergency medical technician pursuant to chapter 450B of NRS.
(b) “Gratuitously” has the meaning ascribed to it in NRS 41.500.
(c) “Health care facility” has the meaning ascribed to it in NRS 449.800.”.
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, pages 3 and 4, by deleting lines 14 through 47 on page 3 and lines 1 through 11 on page 4, 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) A case in which the conduct of the defendant is determined to constitute gross malpractice; or
(b) 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 “gross malpractice” means failure to exercise the required degree of care, skill or knowledge which amounts to:
(a) A conscious indifference to the consequences which may result from the gross malpractice; and
(b) A disregard for and indifference to the safety and welfare of the patient.”.
Amend sec. 6, page 4, line 12, before “In” by inserting “1.”.
Amend sec. 6, page 4, between lines 15 and 16, by inserting:
“2. As used in this section, “medical malpractice” means the failure of a physician, hospital, employee of a hospital, certified nurse midwife or certified registered nurse anesthetist in rendering services, to use the reasonable care, skill or knowledge ordinarily used under similar circumstances.”.
Amend sec. 8, page 4, line 34, after “practices” by inserting:
“or has practiced”.
Amend sec. 9, page 4, by deleting lines 37 and 38 and inserting:
“malpractice, each plaintiff, each defendant, the representative of each defendant’s insurer, and their respective attorneys shall attend”.
Amend sec. 9, page 5, line 1, after “party” by inserting:
“, his insurer”.
Amend sec. 10, page 5, lines 6 and 7, by deleting “and 41A.009” and inserting:
“, 41A.009 and 41A.013,”.
Amend sec. 12, page 6, line 45, after “practices” by inserting:
“or has practiced”.
Amend sec. 18, page 10, line 25, by deleting “person;” and inserting “occurrence;”.
Amend sec. 18, page 10, line 26, by deleting “per occurrence.” and inserting:
“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. 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. 35, page 17, line 1, by deleting “41A.013,”.
Amend sec. 38, page 17, line 11, by deleting “41A.013” and inserting “41A.016”.
Amend sec. 38, page 17, line 33, by deleting “41A.013” and inserting “41A.016”.
Amend the leadlines of repealed sections by deleting the leadline of NRS 41A.013.
Amend the preamble of the bill, page 1, by deleting line 7 and inserting:
“of Nevada; and
Whereas, It is recognized that patients who have been injured by medical malpractice must be afforded appropriate access to legal remedies for their injuries and that judicial discretion to render decisions in malpractice actions involving exceptional circumstances must be preserved; now, therefore,”.
Senator Raggio moved the adoption of the amendment.
Remarks by Senator Raggio.
Senator Raggio requested that his remarks be entered in the Journal.
Madam President and members of the Senate. I want to again commend the members of this body for the dedication and wisdom displayed throughout a long and difficult day yesterday. Despite some unexpected disappointments, you maintained your focus on crafting an acceptable public policy to ensure continued, high quality health care for Nevadans. Alternatives were intelligently discussed and evaluated in a bipartisan spirit.
Today, we will continue those efforts as we take action on our amendment to Senate Bill No. 2 and begin consideration of the Assembly proposals.
We have provided you copies of the amendments to Assembly Bill No. 1 to assist in identifying the difference between the two bills. Please take those copies with you when we go into committee. The Legal Division is also preparing a comparison of the two measures, and we should have that when we meet as a Committee of the Whole.
I remain confident this body and our colleagues down the hall can achieve a solution that is fair and appropriate, and in the best interests of the citizens who have entrusted this task to us.
Amendment adopted.
Bill ordered reprinted, engrossed and to third reading.
Madam President announced that if there were no objections, the Senate would recess subject to the call of the Chair.
Senate in recess at 10:36 a.m.
SENATE IN SESSION
At 11:17 a.m.
President Hunt presiding.
Quorum present.
MESSAGES FROM THE GOVERNOR
State of Nevada
Executive Chamber
Carson City, Nevada 89701, July 31, 2002
The Honorable William J. Raggio, Senate Majority Leader, Nevada State Senate, Legislative Building, 401 S. Carson Street, Carson City, NV 89701
To the Members of the Nevada State Senate:
Section 9 of Article V of the Nevada Constitution provides that the Governor may request the Legislature, when convened in Special Session, to consider matters other than those set forth in the call. With this letter, I am exercising my constitutional authority to bring additional legislative business to your attention.
During the 2001 Legislative Session, Assembly Bill No. 558 established the state’s share of the cost of premiums or contributions for group insurance for each public officer and employee, and for those retirees who have retired from the state and have continued to participate in the public employees’ benefits program. It is requested that legislation be considered that would increase the state’s contribution so that the historical level of support for these groups can be maintained.
Best wishes in your deliberations.
Sincerely,
Kenny C. Guinn
INTRODUCTION, FIRST READING AND REFERENCE
By Senators Raggio, Titus, Amodei, Care, Carlton, Coffin, Jacobsen, Mathews, McGinness, Milburn, Neal, O'Connell, O'Donnell, Paulk, Rawson, Rhoads, Schneider, Shaffer, Townsend, Washington, Wiener; Assemblymen Perkins, Hettrick, Anderson, Angle, Arberry, Bache, Beers, Berman, Brower, Brown, Buckley, Carpenter, Cegavske, 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:
Senate Bill No. 3—AN ACT relating to programs for public employees; increasing the amount to be paid by this state for group insurance for certain public employees, public officers and retired public employees; and providing other matters properly relating thereto.
Senator Rawson moved that the bill be referred to the Committee of the Whole.
Motion carried.
GENERAL FILE AND THIRD READING
Senate Bill No. 2.
Bill read third time.
Remarks by Senators Titus, Raggio and Neal.
Senator Titus requested that the following remarks be entered in the Journal.
Senator Titus:
Over the past several months, I have received numerous phone calls, letters and emails from doctors and their patients in southern Nevada expressing concern over our growing medical malpractice insurance crisis and imploring the Legislature to take some immediate and drastic action to assure doctors greater access to more affordable coverage. A person is most vulnerable when he or she is in need of medical care; the added stress caused by fear of possibly losing one’s trusted physician only makes a bad situation worse. And who among us cannot relate a story of some doctor who has miraculously saved the life or eased the suffering of a loved one?
For those reasons, I pledged to my constituents that I would do everything I could to help find both short and long term solutions to the problem. Accordingly, I volunteered to serve on the interim malpractice committee created by Speaker Richard Perkins and chaired by Assembly Majority Leader Buckley. I heard hours of testimony on this subject and attempted to educate myself by doing considerable research on what is happening in other states. I also encouraged the Governor to call a special session when it appeared that legislation was needed, and needed now, following the closing of the UMC Trauma Center. I came to Carson City with an open mind―willing to put aside my personal beliefs in the sanctity of every American citizen’s constitutional right to seek redress in the courts, willing to put aside partisanship to work together for meaningful tort reform, reform which creates a stable, predictable environment in which insurance companies can compete and also protects the rights of individual patients who may have been harmed by malpractice. In that spirit, I stood, just Monday, on the Capitol steps―shoulder-to-shoulder with the Governor, the Lieutenant Governor, the Majority Leader, and the leadership of the Assembly―endorsing the Governor’s consensus bill, a bill the Governor called “a critical first step toward a long term solution.” A bill the esteemed Majority Leader called “not a win for doctors, or a loss for lawyers or vice versa,” but “a win for the people of this State.” A bill Dr. Florence Jameson said made her feel like, “I am going to continue practicing.” A bill Dr. Ikram Khan called “an historic and bold decision—a meaningful cap in the context of the whole package.” A bill Mr. Cotton, representing the doctors, said was, “the light at the end of the tunnel.” A bill two insurance experts, (former Nevada Commissioner of Insurance and the current President of the Nevada State Malpractice Insurance Company) said was “meaningful tort reform,” “a quantum leap from where we are.”
A bill that among other things: a) Restructured the Judicial process in malpractice cases in Nevada by placing a $350,000 cap on non-economic damages; b) Replaced the ineffective, time consuming, overly costly screening panel with an expedited procedure; c) Eliminated joint and several claims for non-economic damages; d) Placed restrictions on expert witness testimony; e) Enhanced sanctions on lawyers who bring frivolous lawsuits; and f) Capped the liability of trauma doctors in public and non-profit facilities at $50,000 total awards.
Did I think this was the perfect bill? No, far from it. It is silent on much needed insurance reform like public intervention in rate filings, adequate notice of withdrawal from the market and prohibition against requesting rate increases based on losses from imprudent investments and fraudulent corporate practices. It virtually ignores the need for better reporting of medical errors, errors which cause preventable injuries to one out of every 25 patients in the United States, errors which it identified could be avoided and therefore could prevent medical malpractice problems on the front end. The bill does nothing to directly benefit doctors―like mandating prompt payment of claims or allowing collective negotiations by physicians for reimbursement. And it does not specifically address what many of us see as the most serious problem―the loss of OB/GYNs. There is no consideration of what the State could do to strengthen our own programs―Baby to Baby, Nevada Care, and Nevada Checkup―by possibly increasing rates for baby delivery and eliminating red tape. Nor is there a provision which would prohibit insurance companies from charging extra premiums to OB/GYNs for a higher number of deliveries unless they can actuarially show an increased risk.
Even so―even with these omissions―I thought the Governor had included some good, fair reform measures which I could support. So, I agreed to be the primary co-sponsor of his bill. Then following two days of intense testimony and negotiations, at the 11th hour, after being noticeably absent, the greedy insurance companies weighed in for the first time and unfortunately misled some well-intended doctors into thinking this was not a good bill. In effect, the insurance companies are holding Nevada doctors and patients hostage, exuberantly raising malpractice rates so they can recoup their losses from September 11, from the Enron bankruptcy, from the plummeting stock market and from bad business decisions based on “creative” auditing practices currently being investigated by Congress. Why should we believe anything they say? Using fuzzy math, a couple of companies, just a couple, who have little insurance experience and, generally, none in the Nevada market, argued that the Governor’s consensus bill would not bring down rates. At the same time, however, they refused to commit to lowering rates by any specific amount within any given time frame, even if the most restrictive caps were imposed. In fact, they said it would take weeks to calculate any potential effect and years to realize any possible benefits.
And yet, as a result of this last minute, rather questionable testimony for reasons I cannot fathom, this body was willing to abandon the Governor’s consensus bill, eliminating, in the blinking of an eye, the Governor’s compassionate exception of egregious cases from the cap and expanding the trauma center of $50,000 to include virtually every patient in every emergency room across the State and any follow-up care they might need. Meanwhile, the Assembly passed the Governor’s bill, on a bipartisan vote, which included support from some of the most conservative members across the aisle.
Like the Governor, like the majority of the Assembly and like a number of people who testified before us during the past two days, I believe the original consensus bill provides meaningful tort reform. It combines head and heart. It addresses the economic woes of physicians. It assures patients that they will get the quality healthcare they need. It gives insurance companies the predictability they seek. It protects the rights of injured parties.
Senate Bill No. 2 as amended does not provide that balance and therefore does not adequately protect the health, safety and rights of Nevadans. Nonetheless, I say let’s get on with it; let’s send it down the hall, and let’s trust that wiser heads and kinder hearts will prevail.
Senator Raggio:
Thank you, Madam President. I was not going to make any remarks on this, but I can’t let the remarks of the Minority Leader stand because, intentionally or otherwise, it is a mischaracterization of the strenuous effort that was put forth in this chamber. The bill that the Senate is acting on, now, passed on a bipartisan vote of the Committee of the Whole with only Senator Titus objecting, as I understood it.
The point is this. We stood shoulder-to-shoulder on what was termed an accord that would serve the purpose. The purpose for which we are here is not to reward doctors or lawyers. The purpose for which we are here is to provide a solution to a severe crisis in southern Nevada. I would think the Minority Leader’s first interest ought to be to address that crisis. That goal was to provide an atmosphere in this State to insurance carriers to provide affordable coverage for doctors.
Senator Titus:
Point of order. I must object to Senator Raggio’s comments. I do not want my motives questioned.
Senator Raggio:
I am going to let my remarks stand because I am very surprised that, at this point in time, we would have this type of comment on what this bill does. The goal here was to provide an atmosphere in this State to ensure that there would be adequate, predictable and sufficient coverage for medical practitioners and that there would be some solution to the crisis dealing with OB/GYN cases, trauma cases and things of that kind.
We went through a arduous situation here. We stood shoulder-to-shoulder on what we thought was an accord.
I do not think the Minority Leader can speak for the Governor. The Governor has indicated to this speaker that the Senate version of the bill is far superior to what the lower house passed. The lower house went through what, I would term, a rather inadequate procedure to determine what is the best bill, what is the best solution to this crisis.
Now, much is made of “heart and head.” Let me suggest that the Senate version considers the ultimate goal that we need to reach to provide this kind of coverage so that we are not going to have doctors leaving the State, so that patients with these catastrophic injuries are going to have the type of quality medical care that they need. If we just pass a bill that makes us feel good but has an adverse result, and we don’t have physicians in southern Nevada, I am not going to be part of that. I don’t think that anybody here, of either party, want to be part of that situation.
Let’s give our attention for a moment to the exceptions, since the Minority Leader seems to want to characterize it as something drastic or draconian. Yes, we did carve out some of the listed exceptions. The exceptions to the cap are two. One is for gross negligence. Nobody argued that that should not be an exception. The other exception provides that it does not have to be gross negligence, but that any or all of those types of injuries, and probably more, can be considered if a jury returns a verdict in excess of the $350,000 cap. So, where is the heart? A jury can consider those cases. Everything that was outlined from paragraphs a) through f) can be considered by a jury. They are not told what the cap is. That verdict can come back, and the court can find clear and convincing evidence that those are exceptional circumstances, including any or all of those items. The jury’s verdict can be sustained for non-economic damages.
Let’s not mischaracterize this just to get a lot of ink. We are going to go to a conference committee, undoubtedly. Let us be uniform and stand shoulder-to-shoulder, not just to make ink but to make sure that we come out of here in this session with a bill that is going to both protect the claimant and that will ensure, insofar as we can, that there is a climate for insurance companies to want to do business in this State and to provide coverage that will allow doctors and others to be financially able to continue their practices.
For us to get far a field and not keep that goal in mind, we cannot pass a bill here to make insurance companies practice or provide coverage in this State. I would like to pass a bill that would immediately cut premiums. We tried to do that with auto insurance. The Court ruled that unconstitutional. I am sure the Minority Leader and others are aware of that.
To go out and suggest that we can somehow sanction insurance companies, you can call them greedy or whatever you want, but they are not going to come into this State if we do not provide a climate for them to provide coverage. We are not the biggest of the 50 states. They are not going to come here and do business if we do not provide the kind of climate so that they can make a profit. I would be the first, if we could enforce a bill, to say, “tomorrow, you have to cut insurance rates by 25 percent.”
We have provided in this bill, as it stands here in the Senate, a much better bill that we hope will, at least, let insurance companies know that we are concerned about this issue, and that we have provided a reasonable cap―one that does not deprive a claimant with catastrophic injury or some opportunity to exceed that cap.
I may be getting worked up about this. I am a little irritated at the effort we have put forth in two days, going late into the evening and working on every line and aspect in this bill and then to have someone suggest that we are doing a disservice. We are doing a far better service in this House than was done in the other House. I am not trying to be critical of the other House.
This is not a rubber stamp body. I did not stand on the steps of the Capitol with the Lieutenant Governor, the Governor and the Minority Leader just to come over here and rubber stamp something that I had not previously seen. We looked at every aspect of this bill. We looked at it in a bipartisan way, in a constructive way, and our effort here is far superior and far better serves the goal that we intended to achieve when we came here. None of us on either side of this body wanted to leave here with a bill that sounded good but achieved nothing.
Yes, we could pass a bill far more draconian. We could pass a bill with an absolute $350,000 cap with no exceptions. The insurance companies would like it far better probably. But, I am not here to make the insurance companies like it or dislike it. I am here, as I hope the rest of these Senators are, to do the best we can. Other states have caps. The insurance companies are doing business there. Other states have some exceptions. We have to make those exceptions, at least, humanitarian, at least, attractive enough so that there will be predictable, accessible, hopefully, cost attainable insurance that will serve these purposes.
The Minority Leader raised a lot of issues we have not addressed. We could not address these issues because they were not in the Governor’s call. If that is a criticism of the Governor, let her direct it there. We are going to meet again in February. This is not the last of this issue. Most of us will be here. There will be an opportunity to bring up all the other issues that pertain to medical malpractice, as well as insurance reform, and all these other ideas. We will have 120 days to look at that. Also, we will have the opportunity to have, at least, a few months to see whether or not some impact has been achieved. We sent a strong message in our deliberations to the insurance companies and told them we expected them, we can not order them, to take this to heart and, hopefully, realize that we are trying to achieve this goal, and that we need to help achieve it as well. Only time is going to tell.
I know the doctors are not happy. The lawyers are not happy. That was not my purpose in coming here. I would urge us to send this out unanimously. If you object to it, vote against it. I expect to go into that Committee of the Whole and look at the comparisons of the bills. If there are some changes that we need to make, we will accommodate the concerns of the Senator from Las Vegas about some of the other doctors.
We are not a rubber stamp here and never have been. I resent that kind of an inference. I am going to support this bill as it is. Hopefully, we will get to a conference committee, and our colleagues down the hall will work with us to achieve exactly the kind of results that we are all trying to achieve.
Senator Neal:
Madame President and members of the Senate, I voted for this in committee, and I intend to vote for this bill, today, to send it down to the Assembly. Issues have been raised relative to the caps and the expansion of the bill. I indicated, last night, in the Committee of the Whole that once we set out to list things to be adhered to in our statute, we exclude or alter those things which may be related.
The question that I raise relative to the phrase “exceptional circumstances” is that in my judgment it broadens the concept of those things which were taken out of the bill. We were not just limiting to brain damage and other damages but to exclude other things which we had not thought about and could come before a court relative to the language which we put into this bill. The doctrine governing our law states that what is expressed excludes or alters all other. The opposite is true. What is not expressed includes all others under the phrase exceptional circumstances.
As to the expansion of the emergency cap of $50,000 to the other hospitals, I would advise the Senators to read the language. I have read it. I won’t point out to you what it says. I think that you will find that what we have done is the right thing.
As I indicated, I will be voting for this. It is not a cure-all, and we never will be able to cure this problem. If we could have, we would have done it a long time ago. We happen to be a democracy. We have various interest groups who come to us to put forth their ideas and views relative to the legislation that is before us. We are obligated in many cases to accept and listen to those views and to see whether or not we should pass some of those views into law. Many views were expressed before the Committee of the Whole and were not placed into this bill, and they should not have been placed into this bill. The bill is here now. We should move forward and send it down to the other House so we can set up the conference committee to deal with the differences put forth by the other House in their bill.
Roll call on Senate Bill No. 2:
Yeas—21.
Nays—None.
Senate Bill No. 2 having received a constitutional majority, Madam President declared it passed, as amended.
Bill ordered transmitted to the Assembly.
Senator Raggio moved that the Senate resolve itself into a Committee of the Whole for the purpose of considering Senate Bill No. 3; Assembly Bill No. 1.
Motion carried.
IN COMMITTEE OF THE WHOLE
At 11:30 a.m.
Senator Raggio presiding.
Senate Bill No. 3 and Assembly Bill No. 1 considered.
The Committee of the Whole was addressed by Senator Raggio; Assemblywoman Ellen M. Koivisto, Clark County Assembly District No. 14; Assemblywoman Sheila Leslie, Washoe County Assembly District No. 27; Jan Needham, Principal Deputy Legislative Counsel; Bradley A. Wilkinson, Principal Deputy Legislative Counsel; Michael R. Alastuey, Assistant County Manager, Clark County; Robert Byrd, Chairman, Medical Liability Association of Nevada; John P. Comeaux, Director, Department of Administration; Denise Selleck Davis, Executive Director Nevada Osteopathic Medical Association; Michael J. Fisher, M.D., Ophthalmology; Gordon E. Hutting, Director, Quality Risk Management/Accreditation, Carson-Tahoe Hospital; Chair, American Society of Health Care Risk Management, Joint Commission Liaison Task Force; Leslie A. Johnstone, Accounting Officer, Public Employees’ Benefits Program; Robin Keith, President, Nevada Rural Hospital Partners; Ikram U. Khan, M.D., General Surgery; Carin Ralls, Registered Nurse; Organizer, Operating Engineers Local Union No. 3; James S. Tate, Jr., M.D., F.I.C.S., F.A.C.S.; Jim Wadhams, American Insurance Association; Bill M. Welch, President, CEO, Nevada Hospital Association; John Yacenda, Ph.D., M.P.H., P.A.H.M.; Chief Executive Officer, Health Care Strategies, Inc.
Senator Raggio:
The Committee of the Whole will please come to order. Today, we are going to consider Assembly Bill No. 1 and Senate Bill No. 3, which is an addition to the Governor’s call. I would like to thank all of you for your patience and your dedication as we continue with our efforts. We all know these are complex issues, and hopefully, collectively, we can produce solutions that meet the needs of all Nevadans to the fullest extent.
We are going to follow the same rules and procedures that we have been using for the last two days, and again. I remind you to turn off all cellular phones and pagers so that we will not be interrupted during this process.
Are there any preliminary remarks from the committee?
Senator Coffin:
Do we have a letter from the Governor or an amended proclamation?
Senator Raggio:
The Secretary read it, and it was on your Chamber desk along with all your other papers.
Let us first take up Assembly Bill No. 1. I think, since you are all familiar with these issues, the best way to proceed would be to ask our staff legal counsel to go through and apprise this committee of any differences between Senate Bill No. 2 and Assembly Bill No. 1. Have we distributed a comparison of the bills?
Bradley A. Wilkinson (Principal Deputy Legislative Counsel):
Yes, Mr. Chairman.
Senator Raggio:
Committee ask questions as we go through this bill in order to save time.
Mr. Wilkinson:
Let me start with the differences between the bills. Assembly Bill No. 1 contains three more “whereas” clauses in the preamble relating to medical errors that were not in the Senate bill, specifically, because those pertain to the reporting of medical errors.
Senate Bill No. 2 expands the limitations on liability to provide a $50,000 cap on civil damages for care assistance rendered in good faith, not amounting to gross negligence or reckless, willful, or wanton conduct; and necessitated by a sudden, unexpected situation or occurrence resulting in an acute, life-threatening medical condition demanding immediate medical assistance for hospitals other than trauma centers, employees of those hospitals, physicians, dentists and osteopathic physicians who render care or assistance in those hospitals. That provision was discussed in the committee yesterday.
Also, a new subsection 4 was added to create a rebuttable presumption that a medical condition, which arises during the course of follow-up care, is directly related to the original medical condition for which care assistance was rendered pursuant to subsection 1 or 2, was caused by the care or assistance rendered pursuant to subsection 1 or 2, and that the limitation on liability applies in any action for malpractice based upon the medical condition that arises during the course of that follow-up care.
Senator Raggio:
In section 1, we know what we did. The Assembly did not do that in their bill?
Mr. Wilkinson:
That is correct. We added something in Senate Bill No. 2 that was not in the Assembly bill.
Senator Raggio:
What we are going to be concerned about, mainly, is where their bill differs from Senate Bill No. 2. Can we keep that in mind?
Mr. Wilkinson:
Certainly.
Senator Raggio:
Sections 2, 3 and 4 are identical, right?
Mr. Wilkinson:
Right.
Senator Raggio:
How about section 5?
Mr. Wilkinson:
Section 5 is a section where this committee amended the exemptions on non-economic damages.
Senator Raggio:
Did the Assembly change that provision in the original bill in any way?
Mr. Wilkinson:
The Assembly did not change that.
Senator Raggio:
Go to section 6.
Mr. Wilkinson:
Section 6 was not changed by the Assembly. That was changed by this committee.
Senator Raggio:
We added certified nurse midwife and certified nurse anesthetist. How about section 7; any difference?
Mr. Wilkinson:
There is no difference in section 7.
Section 8 was not changed by the Assembly. It was changed by this committee.
Senator Raggio:
We added “as practiced.”
Mr. Wilkinson:
That is correct.
Senator Raggio:
We also added that language in a similar section dealing with medical testimony.
Mr. Wilkinson:
That is correct, section 12. The Assembly did not change that.
Senator Raggio:
How about section 9?
Mr. Wilkinson:
Section 9 was changed in the same manner as this committee changed section 9. The wording was slightly different, but the concept was the same.
Senator Raggio:
That required insurers and their attorneys to participate in a settlement conference?
Mr. Wilkinson:
That is correct.
Senator Raggio:
It has no real division there, right?
Mr. Wilkinson:
It is substantively the same.
Senator Raggio:
How about section 10?
Mr. Wilkinson:
Section 10 was merely a technical correction that was included in the Senate bill that was not in the Assembly bill.
Senator Raggio:
Our bill does not reflect the repeal of the statute to define “physician.” What is the difference, and why?
Mr. Wilkinson:
Actually, that is backwards. The Assembly bill does not reflect the repeal of the statute.
Senator Raggio:
Our version would be correct?
Mr. Wilkinson:
Our version is correct.
Senator Raggio:
So that is reversed? Assembly Bill No. 1 does not reflect that?
Mr. Wilkinson:
Right. That was a minor, technical correction. We inadvertently repealed the definition.
Senator Raggio:
If there are any technical corrections that need to be adjusted in our amendment, let us know.
Section 11 is identical.
Mr. Wilkinson:
That is correct.
Senator Raggio:
Section 12 is the other section where we put in the words “as practiced.”
Mr. Wilkinson:
That is correct.
Senator Raggio:
Then, sections 13, 14, 15, 16, and 17 are identical.
Mr. Wilkinson:
That is correct.
Senator Raggio:
The Assembly has a section that we do not have, section 18.
Mr. Wilkinson:
Sections 18 through 49 are the new language pertaining to the reporting of medical errors.
Senator Raggio:
We want to know what the Assembly did on the reporting of medical errors. I understand they create a new department or agency of some kind.
Mr. Wilkinson:
There is a new repository created for the receipt of those reports.
Senator Raggio:
Please point it out so we can take it up at this time.
Mr. Wilkinson:
Certainly, section 29.
Senator Raggio:
We do not have a corresponding section in our bill at this point?
Mr. Wilkinson:
That is correct.
Senator Raggio:
The Assembly put in a new section 29.
Mr. Wilkinson:
This is where the section numbers diverge. This creates a repository for health care quality assurance within the Health Division and allows the division to hire staff within legislative appropriations and authorization and contract with persons to carry out the provisions assigned to them.
Senator Raggio:
The repository is the main entity involved in receiving reports of incidents and serious events, disseminating information regarding serious events in an aggregated format, reporting incidents, and used internally to generate recommendations. No information regarding incidents is disseminated in any form. Is that what section 29 did?
Mr. Wilkinson:
That is correct.
Senator Coffin:
Brad, I know you could not be there to hear this testimony. I am sorry we do not have an Assemblyman here to help defend their bill. But this particular part I am curious about. I am curious about how long this Pennsylvania entity has been in effect, what its track record is and how many years they have used it. Maybe it has been presented to the interim committee, and there are Senators here who served on that committee, but I have not heard about it yet.
Mr. Wilkinson:
I do not know that information.
Senator Raggio:
We will try to get some information on that.
Senator Rawson:
In regard to that, we did have an Interim Study Committee on Medical Errors. We hired a consultant to chair a subcommittee and had three, full days of hearings on that. John Yacenda is here if you want him to comment on what the recommendations of the interim committee are. Some of those are the same as in this bill; some are not. This is referred to as, I think, the Pennsylvania language, and there really are a lot of differences.
Senator Raggio:
Our first effort has to be to understand, insofar as we can, what the bill provides, and then we can ask for some explanation as to what is behind this. We need to understand what the bill does provide, so let us hear that.
How many sections are involved, numbers 29 through what?
Mr. Wilkinson:
They are sections 18 through 49.
Senator Raggio:
We are looking at their bill.
Mr. Wilkinson:
That is correct, sections 18 through 49.
Senator Raggio:
Is there some way to tell us what it does without going through each section?
Jan Needham (Principal Deputy Legislative Counsel):
Basically, this sets up a procedure to report what they call “incidences and serious injuries.” Incidences are occurrences in the treatment of a patient that do not really injure the patient or require further treatment.
Senator Raggio:
Let us hone in on that, because in Section 20, apparently, they define “incident.”
Ms. Needham
Yes, that is correct.
Senator Rawson:
It is referred to as a near miss.
Ms. Needham:
Basically, it is defined as an event involving the treatment of a patient that could have injured the patient but really did not and did not require any further treatment. Whereas a serious event is defined in section 26, which is an occurrence involving the treatment of a patient that causes the death of a patient or compromises the safety of the patient and causes the patient to suffer injury that requires additional treatment.
Senator Raggio:
An incident, it says here, is a close call. So a patient could have been injured but, in actuality, was not. But, it is still reportable. Is that what you are saying?
Ms. Needham:
Yes.
Senator Raggio:
Who is required to report that?
Ms. Needham:
Basically, in section 30, a person who is employed by a medical facility has to notify a patient safety officer of any incident or serious event. Each medical facility is required to appoint a patient safety officer. The patient safety officer will then report it to the repository and to the medical facility’s representative for the notification of patients involved in serious events. So the report of the incident goes to a patient safety officer, and the patient-safety officer reports it to the repository.
Senator Raggio:
Is there a “whistle-blower” provision in there?
Ms. Needham:
Basically, yes. We can get to that.
Also in section 30, the administrator of the Health Division is required to send a survey to an employee who makes one of these reports to make sure the employee did not experience any retaliation or was not the subject of disciplinary action or any other corrective action from making the report.
In section 31, the repository collects and maintains these reports, and collects and maintains the responses to those surveys.
In section 32, the Health Division is required to contract with a person to collect and analyze this data and the responses, and then make recommendations for changes in health care practices.
In section 33, the repository evaluates any recommendations received from the independent contractor, and then gives the recommendations and those evaluations back to the administrator of the Health Division. The administrator then either approves or disapproves those recommendations. Section 33 also sets out the factors for evaluating those recommendations.
In Section 34, if the administrator approves the recommendation, the repository is required to send those recommendations to the appropriate medical facilities. If the recommendation includes only medical facilities within a certain geographical area, only those facilities will receive the recommendation. If it is only subject to one or two medical facilities, only those facilities will receive it.
Section 35 requires all medical facilities to designate a representative for the notification of patients in a serious event. This representative tells the patient, “You were involved in a serious event.”
Senator Raggio:
Is a serious event the same as an incident?
Ms. Needham:
No, a serious event is an occurrence in the treatment of a patient that either results in the death of a patient or serious injury or requires further treatment. An incident is, as Senator Rawson suggested, a near miss.
Section 36 requires the repository to compile information relating to serious events and responses to these surveys. They compile this information in the aggregate, and that information is available to any interested person who requests a copy of the report.
Section 37 provides that reports, documents and recommendations that are received throughout these provisions are not admissible as evidence in a legal or administrative proceeding.
Senator Raggio:
That cannot be subpoenaed by a court?
Ms. Needham:
I am not sure that prohibits a subpoena, but it is not going to be admissible.
Senator Raggio:
Is it available for inspection by an attorney, even if it cannot be used in court?
Ms. Needham:
I believe so.
Section 38 requires each medical facility to develop an internal patient safety plan that has to be approved by the repository. It also requires a medical facility to provide that compliance with this plan is going to be a condition of employment.
Section 39 requires medical facilities to designate a patient safety officer. The patient safety officer investigates and supervises the reporting of all incidents and serious events, and then takes action that he deems necessary to ensure the safety of patients. He reports to a patient safety committee.
Senator Raggio:
Each hospital is required to have a safety committee?
Ms. Needham:
Yes, each hospital is required to have a patient safety officer and patient safety committee. That requirement is in section 40. The medical facility is required to establish that committee. The patient safety committee receives reports from the patient safety officer, evaluates the actions of the patient safety officer and reviews the quality of measures that are enacted to improve the safety of patients.
Section 41 provides immunity from liability for reporting incidents and serious events, and for compiling and transmitting this information that is required throughout these sections.
Section 42 provides for the imposition of a fine against the medical facility or an employee or officer of the medical facility for a violation of these various provisions. However, a medical facility can request a hearing with regard to the imposition of a fine. The administrator holds those hearings.
Section 45 prohibits the medical facility from retaliating or discriminating against an employee who reports information to the Board of Medical Examiners that may result in disciplinary action against a physician, or who reports an incident or serious event to the repository.
Section 46 allows an employee of the medical facility to file an action for retaliation and discrimination if they have been retaliated against or discriminated against. The employee can file an action in court. The court, if it finds that there has been discrimination or retaliation, is required to award damages and may grant equitable relief. It provides also that the facility would be subject to a civil penalty of not more than $10,000.
Section 48 provides that a physician cannot retaliate or discriminate against an employee in the same manner and has similar provisions as to the actions that may be taken.
Section 59 does the same with osteopathic physicians. They are prohibited from retaliating or discriminating against an employee. The employee may go to court, and the court would be required to award damages or grant equitable relief.
Senator Raggio:
I note that this would require the Health Division to contract some of this responsibility to independent contractors and also creates the repository within the Health Division?
Ms. Needham:
Yes, Mr. Chairman.
Senator Raggio:
Is there anything in the bill for funding for these purposes?
Ms. Needham:
Not that I am aware of, no.
Senator Raggio:
Does that cover the area of change?
Ms. Needham:
Yes, Mr. Chairman.
Senator Raggio:
So, that replaces anything in the original Senate bill that dealt with reporting?
Ms. Needham:
This is an addition to it.
Senator Raggio:
Are there any questions at this point?
Senator Rhoads:
Is there any reporting being done now along these same lines?
Ms. Needham:
Senator, I am not certain, but I do not believe so.
Senator Rhoads:
This will all be new reporting?
Ms. Needham:
Yes, that is my understanding. It would be a new requirement added to the statutes. It could be current practice.
Senator Mathews:
There is some reporting in the accredited bodies. Those hospitals that are accredited are required to report, and the ones that are not accredited usually follow those guidelines. This is an aggregate report, but they are reporting.
Senator Raggio:
Any other questions or comments at this point?
Senator Neal:
Referring to section 37, the report that you speak of here, is that the report that goes to the repository?
Ms. Needham:
Senator, I believe that is correct. These are new provisions to us, too.
Senator Neal:
So, if this report goes to the repository and the language that follows that, actually, is not admissible as evidence in any administrative, legal proceeding, does that mean, then, that you could get the information in that report from the repository then go directly to the hospital to subpoena those reports?
Ms. Needham:
Subpoena the reports from the hospital?
senator neal:
Yes.
Ms. Needham:
I am not sure. I would have to follow up on that.
Senator Neal:
The language there is very clear. You are talking about a report that is filed.
Ms. Needham:
Right, but it is not admissible as evidence. That is basically what this says.
Senator Neal:
It is not admissible as evidence because it is filed in the repository?
Ms. Needham:
No, I believe it is not admissible as evidence so that people will make accurate reports and then the information would not be used against them.
Senator Neal:
So, the action barred as admission in evidence extends back to the origination of the report?
Ms. Needham:
It is any report, any document, any other information that is compiled pursuant to these provisions.
Senator Neal:
Do you understand what I am saying? We are talking about a repository where this information is placed which becomes a report that is available to the public, right?
Ms. Needham:
The report, yes. The repository compiles aggregate information that it receives, and then that aggregate information is available to any interested person.
Senator Neal:
If I should get that report from the repository in the aggregate, and I am able to glean from it that Hospital “X” has committed these incidents, and I need that information for a lawsuit, am I barred, then, from going to Hospital “X” and subpoenaing that information?
Ms. Needham:
From going to the hospital? This section does not bar that, but any of the reports would not be admissible. The report that was submitted pursuant to this provision would not be admissible in evidence.
Senator Neal:
So, I still can go to the hospital and get that information if I can glean that information from those documents that enter the repository?
Ms. Needham:
This section does not prohibit that.
Senator Raggio:
We have Assemblywoman Koivisto here. Ms. Koivisto, we are now looking at sections 18 through 49 of Assembly Bill No. 1. We have heard some of the testimony as to what it does. We would be interested in your version it. What it does and why, and how it will work.
Assemblywoman Ellen M. Koivisto (Clark County Assembly District No. 14):
Thank you, Mr. Chairman. The medical errors reporting part of Assembly Bill No. 1 simply allows the reporting of medical errors in a non-punitive, confidential, protected manner in order to track errors, find out where and why they are occurring in the system, and correct them.
Senator Raggio:
Who determines that something is an incident? An incident, as I understand it, is something that is a close call that did not result in actual injuries. That is part of this. It talks about incidents and serious events. Who makes the determination that something is an incident?
Assemblywoman Koivisto:
I believe that the determination would be made by the professionals working in the hospital: the doctors, the nurses, the pharmacists. The bill calls for a patient safety officer, which I would assume most hospitals already have. That person should be qualified to make that call.
Senator Raggio:
My concern in the brief explanation that I have heard is mostly on this incident reporting, as distinguished from a serious event where injury does occur. I can envision a situation where somebody may see something as an incident and others may not. That is then on the record somewhere, even though the identity of the provider physician, whatever, is not revealed for other purposes. Is there a way for anybody to challenge that it really is not an incident?
Assemblywoman Koivisto:
I would think that whoever is making the report and taking the report and the contract agency who is compiling the data on the incident would be able to determine if it really is.
Senator Raggio:
It sounds like someone may see something as an incident that maybe ten other people in the room do not think constituted an incident, and it is still going to become part of the reporting. It sounds like whoever turns something into an incident is going to report it, and that is going to stand. Is that right? If somebody says, “That was an incident, and I am reporting it,” can someone else say, “No, that was not an incident?”
Assemblywoman Koivisto:
I do not know why they could not.
Senator Raggio:
What could they do about it if they did not think it was an incident? If the person to whom they report this, the patient safety officer or whomever, thinks it does not rise to the level of an incident. What happens then?
Assemblywoman Koivisto:
I think it would be the patient safety officer’s call.
Senator Raggio:
If somebody says, “That was an incident, and I am reporting it,” could somebody say, “No, that was not an incident?”
Assemblywoman Koivisto:
I do not know why they could not.
Senator Raggio:
What could they do about it, if they did not think it was an incident? If the person to whom they report this, the safety officer or whomever, and that does not rise to the level of an incident, what happens then?
Assemblywoman Koivisto:
I think it would be the patient safety officer’s call.
Senator Raggio:
Is that in the bill?
Assemblywoman Koivisto:
I do not think the bill goes into that much detail.
Senator Raggio:
Well, if we are trying to collect accurate information, we would want to know how that occurs. Is there some way to challenge somebody’s characterization of an incident? We all know that there are some people who could find something wrong in everything that happens. How do we differentiate? Or did you not see that as a problem?
Assemblywoman Koivisto:
Actually, I really did not see it as a problem. I felt that professionals working in the field―doctors, nurses, pharmacists―would know what was an incident, what was a close call, and what was a sentinel event.
Senator Raggio:
Can only professionals report the incident, or can anybody report an incident? An incident means: an event occurring in a 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 that required a patient to receive additional treatment.
Assemblywoman Koivisto:
I would think anybody could report it, but again, I think the patient safety officer would know since he or she is the one who makes the report to the repository.
Senator Raggio:
So, your understanding of the intent of the bill would be that the public safety officer, as the case may be, determines whether or not it really is an incident within this definition?
Assemblywoman Koivisto:
That is correct.
Senator Raggio:
There is nothing in the bill that provides any appropriation or funding. Although, it mandates independent contractors be hired and also mandates the creation of a repository, but no funding is provided. How was that contemplated?
Assemblywoman Koivisto:
My understanding is, that because this does not go into effect until July 1, 2003, it is intended to be part of the Governor’s budget.
Senator Neal:
I am trying to clear up the difference between an incident and a serious event. I read this in a medical report. For instance, say you are a guy having his private parts prepped with a saline solution, and all of a sudden, instead of saline solution, acid is put in the needle. And somebody said, “Hold it! You have acid in that needle.” That is an incident. But, if he goes ahead and inserts the acid, that becomes a serious event. That needs to be reported.
Senator Raggio:
They both have to be reported.
Senator Neal:
Yes, they both have to be reported, but that is also the difference. The other situation would be where a guy goes in for a physical examination. He goes into the examining room, and they are prepping him for his leg to be cut off. He looks around and says, “What is happening here?” He looks at the chart, and it is somebody else’s chart. That is an incident, if it’s caught in time. If it’s not caught in time, and he has his leg cut off, that becomes a serious event. That is what you are talking about in this bill.
Senator Raggio:
Is there a sanction for someone failing to report an incident or a serious event?
Assemblywoman Koivisto:
I believe there is a $1,000 fine.
Senator Raggio:
If an incident occurs and somebody does not report it, they are subject to that fine even though they might not have thought it was an incident?
Assemblywoman Koivisto:
Correct, they are subject to the fine, but if nobody reports it and there is no record of it, it would probably be very difficult to collect the fine.
Senator O'Donnell:
We have, as you have in your House, gone through a lot of pain to do what we felt was necessary to help the crisis in southern Nevada in terms of medical malpractice and affordability of premiums. Do you think that this additional legislation will create more lawsuits or create fewer lawsuits by having this language in here?
Assemblywoman Koivisto:
It should have the effect of creating fewer lawsuits because errors will be caught and corrected. Since it is all confidential, non-punitive reporting and the purpose is to correct system errors, the end result should be fewer lawsuits and better health care.
Senator O'Donnell:
Is not the language in the bill, sort of, passive? In other words, there has to be an incident that happened, and there has to be a serious event that happened, before it gets reported? At that point, if it has already happened, is not there a potential lawsuit?
Assemblywoman Koivisto:
You cannot report an error, certainly, before it happens. The purpose of medical errors reporting is to track trends, to track errors and to find out if there is a problem in the system. If the same error recurs, you know there is something that needs to be fixed. If you fix it, it should not happen any more. That is the purpose of medical errors reporting.
Senator O'Donnell:
You think this is going to create less litigation as time goes on?
Assemblywoman Koivisto:
It should.
Senator O'Connell:
I had the opportunity of listening to your testimony during your last meeting on this specific issue. Did I misunderstand that Nevada now has one of the best records as far as medical error reporting is concerned, or that the State has some of the fewest errors?
Assemblywoman Koivisto:
I am not aware of that. What I learned is that we do not have the data available to make that call.
Senator O'Connell:
There is nothing in the system, presently, that collects information or reports to the Health Board?
Assemblywoman Koivisto:
We have various systems. They are formalized, but nothing is mandatory. We do not have any mandatory reporting. It is all voluntary. JCAHO (Joint Commission on Accreditation of Health Care Organizations) reporting is voluntary, in order to maintain their accreditation. Data is not available. That was one of the parts of the report from the subcommittee, that there is no data available to make the call.
Senator O'Connell:
I was thinking that the hospitals had to do this in order to maintain their licenses, their accreditation. I am getting some nods. Have I been misled, or is that not the correct understanding?
Senator Mathews:
Let me help. JCAHO does require that, in order to be reaccredited, you must have a record of every incident. It has to be in writing. It is a composite of the incidents, and it is required. It is required in order to be re-accredited.
Senator Carlton:
To follow along that same line of thought, it was my understanding that in this reporting there was no anonymity clause, so it had a stifling effect on the personnel and the hospital actually making the report because they were afraid there would be some retribution. This legislation, or this provision of this legislation, addresses the anonymity part.
Senator Mathews:
But that was not the question. The question was whether there was any standard. There are requirements to report now, and most hospitals outside of JCAHO, the small hospitals in the rural areas, follow the standards of JCAHO.
Senator Carlton:
I am just following along that line. There is reporting, but it is not at this level. This takes it to a different level that might give us more information if the personnel in the hospital feel more comfortable in relaying incidents that happen to them.
Senator Mathews:
One of the things that happens in a hospital setting is that you are required to report your own events, whether it is a near miss or a miss. I always taught my students that you make the incident report because you know what happened better than anyone. I do not want someone else reporting my incident. I report my own incident. It goes to the quality control department with my name on it, and when it gets there, even if it was a lock saline solution, I would report it because I am the best person to tell you what I almost did or what I did. All my students were taught that you report your incidents. I do not want anyone else in the hospital doing that.
It may not happen, and some may not report it, but if they graduated from Truckee Meadows Community College, I will bet you that they report their own incidents.
Senator Raggio:
Assemblywoman Leslie is here. Did you have something to add on this?
Assemblywoman Sheila Leslie (Washoe County Assembly District No. 27):
This amendment is modeled after legislation that was introduced, passed and enacted this year in Pennsylvania. It was agreed upon in the Governor’s compromise bill and with the Senate as a concept―the Pennsylvania language. What you have here is the Pennsylvania bill that was modified for Nevada.
The real purpose of it, as Assemblywoman Koivisto was saying, is to reduce errors and to prevent injury. I think that is a very important concept for us to keep in mind in terms of the whole medical malpractice model as Senator O’Donnell was talking about. Whether this will help reduce premiums and help increase safety, we think it is an essential element of the whole package.
There are 15 states that have enacted legislation of this type. One of the reasons we need it in Nevada is that we have a very weak, voluntary-only reporting system, and we believe that this mandatory system is absolutely essential to help reduce injuries in our hospital settings.
I am here because our Majority Leader assigned me to meet with the Hospital Association and see if we can work on some of the details before the conference committee meets. There are going to be areas where we can compromise. One of them, interestingly enough, is tightening the definition of incident and making sure that it is what we need to have in our Nevada law to cover the issues that you were talking about when we walked in.
We are hopeful that by the time the conference committee meets, there will be some additional information about how we can modify the bill to meet some of the concerns that were raised by the Hospital Association.
One concern that has not been mentioned and that was raised by several of the members of the Assembly last night on the floor is, perhaps, an exception or a phase-in for the rural hospitals. Realizing that Nevada already has a hard time keeping medical professionals and we certainly do not want to drive any more out, how we can make this more manageable in the rural areas, at least, when we first implement it.
There was an interim subcommittee meeting on this issue. Doctor Yacenda testified, yesterday, in our House that this legislation is consistent with the recommendations that came out of that subcommittee. We were happy to get that testimony, as well.
Senator Raggio:
The original bill, and the Senate amended version of that bill, did provide for certain reporting including claims filed, things of that kind, with sanctions. I think, there is somebody here to testify on their concerns about this more extensive reporting of incidents and serious events that do not amount to claims filed and things of that kind.
This is not going to take effect until July 1, 2003. I am wondering if it would be better to deal with it at the regular session since it is not going to go into effect until 2003 and deal with all of these concerns at that time rather than attempt to do it justice today.
I know that the Governor and his staff initially looked at the Pennsylvania reporting statutes. They found some serious concerns about its usage and the history of what had resulted. I think, their decision was that they not, for that reason, put it into the bill at this time. That is only an observation so I am wondering if that might not be a better way to resolve it.
Assemblywoman Leslie:
Of course, that may be the result of this, but my understanding is that we are close to fixing some of the problems. I have not yet had a chance to sit down with some of the hospital people after they gave me their objections this morning. I think we are close enough that we can come up with something we all agree on.
Senator Townsend:
The effort here is a noble one. I was wondering if you had considered the absolute necessity to mandate that the Health Division hire a staff, contract out and, with regard to a health facility, mandate a specific person.
Would you consider that we just say the Health Division will do this? However they do it is their business. Same with a hospital facility, as long as they meet whatever the ultimate goal is. We are now starting to tell people who to hire and defining things, and because I am one of the older ones around here, I have seen that is how bureaucracies become less than efficient. If the two entities I have referenced are just given a responsibility, let them figure out how best to do it within their own budgets and within their own structure because each hospital is different and each Health Division administrator is different. That might be a way to streamline it and make it easier rather than dictate the specifics of how they would do that. Would that be something you would consider?
Assemblywoman Leslie:
In fact, that is one of the areas that we are discussing with the Hospital Association. That is on the list.
Senator Rawson:
I might add that in the Pennsylvania plan it was a very extensive procedure, just like ours is now. There are some considerable differences in it, and you have to look at the whole package and how it was put together so that it blends with their situation. It is part of the Pennsylvania package. They wrestled with this idea of joint and several liability, and we have this reporting, and we have the potential for more suits. They enacted a part of their bill that they call ostensible agency. I do not have the details on that, but I am told it makes it considerably harder to sue a hospital or to bring them into an action. Yes, there is more reporting and scrutiny, but there is also more protection on the other side.
I think your suggestion is a good suggestion. We have had a serious interim study on this in the Interim Committee on Health Care. It is still grappling with the issue. I was convinced that we were headed in a similar direction, but is this something that the physicians, the attorneys and the hospitals agree to? My impression is they have not agreed to this so we are adding a whole new element.
Senator Neal:
Do you know whether or not the Pennsylvania law, as it is being stated here, led to the reduction of malpractice suits?
Senator Rawson:
I think the Pennsylvania law is new, just recently enacted, so we are going to have to watch it. I am facilitating this process. I am not trying to block it, and I think there are good intentions on this. The public has a right to know that we have done everything that we can do to reduce the problems.
Senator Raggio:
Are there some in the audience who are prepared to offer some testimony on this? I am going to ask them to come forward, please.
Carin Ralls (Registered Nurse; Organizer, Operating Engineers Local Union No. 3):
I am here on behalf of the registered nurses at Washoe Medical Center and Elko Hospital. We support this bill the way it is.
Senator Raggio:
We are talking only about sections 18 through 49 of the bill. Is that what you are talking about?
Ms. Ralls:
Yes. We support this. It is a way for us to report errors and not feel that we are going to be retaliated against. The retaliation part of this amendment will cover people in the hospital who make a report so they will not be retaliated against which sometimes occurs now. I have a nurse who has been retaliated against because of reporting. This would cover that. She or he would be able to make a report and not feel that the hospital or the physician, who is self-employed or self-contracted at the hospital, can retaliate against them. It also requires a follow-up that makes sure that the steps are being done correctly, and that the person who has made a report can feel confident in the steps that were taken.
Bill M. Welch (President, CEO, Nevada Hospital Association):
I want to thank the Senate for the opportunity to speak to this issue. We recognize and appreciate the issue and concerns that are being raised here, and the efforts, the purpose of what the objective is here, and that is to ensure safe patient care. We in the hospital industry are committed to that process. To that extent, I would add that there is a perception out there, a suggestion, that we do not do reporting, that we do not collect and analyze data. That is wrong. Hospitals go through an extensive process. We have gone through an extensive process to present testimony to the interim Legislative Committee on Health Care, to the subcommittee, not only in the recent interim, but in prior legislative processes. On record is an extensive volume of documentation that provides copies of the reports, processes, policies and procedures, the various regulations and guidelines, that the hospital industry must follow, both in a mandatory or voluntary process.
These reports are collected. They are analyzed, and plans or corrections are developed. Those plans or corrections are then reevaluated to ensure that they have been effective. It also should be noted, and it is suggested, that these reports are hidden someplace. There are two aspects to the reporting process. There is the reporting process within the hospital community, and those are, in fact, maintained within the hospital community.
Senator Raggio:
I may have missed some of what you said. Does that include what we are talking about here, both incidents and serious events?
Mr. Welch:
Yes, it does, Senator. Those reports are maintained within the hospital, and they are not, in fact, disseminated beyond that. However, through the licensing survey process, through the Medicare certification process, and for those hospitals who are JCAHO accredited, as well as for their medical malpractice insurance risk management evaluations, those reports must be and are evaluated by these oversight authorities to ensure that we are complying with those processes.
Senator Raggio:
Is that available in all hospitals?
Mr. Welch:
Yes, it is.
Senator Raggio:
Even the rural hospitals?
Mr. Welch:
Yes, it is. Additionally, then, there is the opportunity for reporting errors anonymously. We could, at this point, pull out our cell phones, call the Bureau of Licensure and Certification, and suggest to them that we have just left Carson-Tahoe Hospital and had a negative experience, incident, sentinel event, serious event. We may do that anonymously. The Bureau of Licensure must investigate that within 30 days. I assure you, if not every one of our hospitals in this State then the overwhelming majority of our hospitals in this State have had incidences like that reported. The Bureau of Licensure and Certification has gone into those facilities to determine the validity of those reports. That data is collected and is available to this body. That was presented to the subcommittee of the interim Legislative Committee on Health Care.
The Pennsylvania issue―that legislation was passed in two forms. The first piece of it was passed in March after extensive debate and consideration. The second piece of that legislation was passed recently, sometime in late spring. That legislation has only recently gone into effect, and in talking with that state, they have not even been able to determine how to effectively implement that process. Yet, we are trying to model, and I want to say try to model the proposed amendment to this legislation that was brought to you today on Pennsylvania. It is not based solely on the Pennsylvania model. There is a compilation of many different components of this that far exceed or go outside the Pennsylvania model. Our challenge has been, in less than 24 hours, to try to evaluate and come back to you with logical, rational, effective compromises that would be meaningful to meet the goals that are included here. To do that in 24 hours, when another state has gone through their full legislative process to make those considerations, seems to me to be extremely unreasonable. Now, in good faith and in trying to recognize the importance of the issue here, we have attempted to generate language that would accommodate that process to the extent that we feel will not compromise a number of issues. I would like to point out what some of those issues are.
The bill, at least the version of the amendment that we saw, we believe, in fact, compromises the confidentiality process. We believe it compromises the confidentiality process to the extent that it compromises the peer review process. The peer review process is a voluntary reporting process that is supposed to be non-punitive. I want to emphasize, non-punitive. Now, we have heard that individuals who have reported have been terminated. I have not seen any statistics to support that that may have happened. If that has happened, I would encourage those individuals to file a complaint with the appropriate state and federal agencies. There are federal and state laws in place to protect people against that. So if that is happening, they should report it.
It compromises the peer review process because who is going to want to report themselves or one of their peers in a situation that may bring litigation against them. Again, peer review is a voluntary process, and it is a confidential process to allow the hospitals to collect data and analyze what is going on within their organizations in order to implement changes of systems to effect a positive outcome on improving the delivery of health care. Keep in mind, the institute of medicine does not recommend the instituting of mandatory reporting. They make many good recommendations.
JCAHO, which is recognized by the health industry as the standard to meet―the optimum standard, not minimum, not average, but the optimum standard―does not recognize that as the most effective way to effect a change in the occurrence of medical errors. I have tried to obtain data from the 14 to 16 various states that have some level of mandatory reporting, from JCAHO, from the American Hospital Association, something that supports the statement that mandatory reporting results in a reduction of the occurrence of medical errors. We do not find that anywhere. So to answer the question, will this reduce suits, we do not know. Nobody knows.
The question then has to be raised, what is the cost. I heard that raised this morning. A similar piece of legislation, not nearly as extensive as this piece of legislation, was presented in the 1999 session. As I recall, the Bureau of Licensure and Certification indicated that it would be approximately $1.2 million, $1.3 million to fund that process. This is far more expensive than what has been proposed today for that process. Four years later, we have got to believe, it is going to be much more than that.
Senator Raggio:
Excuse me. What is that cost? That is a significant amount. You are going to hire some people in the repository, you are going to do some contracting, and you are saying this is even more expensive than what was projected it would cost?
Mr. Welch:
The Bureau of Licensure and Certification, in 1999, was asked to determine whether or not there was a fiscal note on the reporting mechanism that was proposed in that session.
Senator Raggio:
It was similar to this?
Mr. Welch:
It was similar but less extensive.
Senator Raggio:
Is there any additional cost to the facility?
Mr. Welch:
There will absolutely be additional costs for the facility, because in one sense this is a duplication of the processes that we already have in place. It then extends it to a mandatory reporting process to additional entities and organizations which will require an additional expenditure on our part.
We do have several individuals who would like to speak, and I certainly do not want to beat this into the ground. If the Legislature directs us to sit down and work through this process in this short time frame, we certainly will. We came here to collaborate and cooperate with this process because some tort reform has to be passed. Our concern has been, all along, that we have to maintain our physician community. Hospitals facilitate the process of delivery of care and without our physicians we cannot do that. We came here to be part and supportive of developing a solution.
When all is said and done, we need to look at whether or not there are any proven cases out there as to whether or not mandatory reporting has, in fact, reduced occurrences. We have to consider the costs associated with engaging this process and expanding what is already there to the benefit because somebody will have to pay that cost. You may assess us that cost. The bottom line is, will it be paid through tax increases to support the government agencies to process this, or will we pay through increases in the health care process? Is that increased cost, based upon documented data, warranted?
Gordon Hutting, the safety director for Carson-Tahoe Hospital, can answer technical questions with regard to the processes or technical concerns with regard to the legislation as it has been submitted. Also, Ms. Keith from the Nevada Rural Health Partners would like to make a comment.
Senator Raggio:
We had not anticipated spending this amount of time, because we are trying to finish our business today. We have another bill to consider, as well, so I am going to ask we be as concise as we can in our questioning, responses and presentations. Let us keep in mind that we do not want to leave anything out that is important.
Senator O'Connell:
Did you have the opportunity to make the same presentation to the Assembly?
Mr. Welch:
Yes, I did.
Senator Wiener:
I had previously chaired the interim committee on school safety and juvenile violence, and we made provisions for mandatory reporting of incidents of violence on campuses. When you have voluntary reporting, my concern is underreporting may occur. If there are enough incidents at your facility, whether anonymous or collected in the aggregate, that somehow seems to reflect what is going on in the hospital. That may, indeed, result in increased premiums or maybe not getting accredited or so on. What is the incentive voluntarily reporting incidents that you think need to be reported vs. reporting those that maybe should be reported but, as they accumulate, may make your hospital not look as well-positioned as you would like it to look. Because it is voluntary, you have the choice as to what to report. By reporting those incidents which you might report that should be reported, it may make you look bad. How do we balance those two?
Mr. Welch:
In fact, we have policies within our hospitals that require reporting. When we talk about voluntary reporting, it is voluntary in the sense that this is not mandatorily reported to the State. Within our hospital organizations, we have policies and procedures that require the reporting of incidents and sentinel events. The incentive for the hospital is that we are there to provide the best quality of care. We have many processes that are in place to ensure that we are continuously evaluating our ability and our effectiveness in accomplishing that goal. These reporting processes assist us in that.
Say, we do not have the perspective about wanting to ensure safe quality care. Let us look at that strictly from the financial standpoint. If we get sued, we are at great risk for great financial damage. We want to ensure that we reduce every opportunity there is for an occurrence to happen in order to avoid litigation, loss, medical malpractice against our organization. Our own medical malpractice insurance carriers continuously evaluate this and effect this in patient safety funds.
Senator Care:
You used as an example Medicare compliance. Are the incidents contained in those reports, and, if so, what does Medicare do with those?
Gordon E. Hutting (Director, Quality Risk Management & Accreditation, Carson-Tahoe Hospital; Chair, American Society of Health Care Risk Management, Joint Commission Liaison Task Force):
The Joint Commission this year has appointed me as a permanent member to their Hospital Advisory Council, which is a 25‑member group that advises the Joint Commission on their policies, procedures and standards relative to accreditation. Specifically, in response to your question about Medicare, the data that we collect and aggregate provides us the opportunity to develop performance improvement programs. In response to whether it is an incident, a near miss, or what is described as a sentinel event, that data is made available to CMS anytime they come in and do a survey. They can see the originating incident. They can see what the corrective plan is, what the follow-up and monitoring plan is, as well as the on-going performance improvement.
Senator Raggio:
They can see it, but what can they tell you to do with it? What can they tell you to do after they have read it and evaluated it.
Mr. Hutting:
If we are not in compliance in their opinion, if we are running a facility that poses a danger to patients or others, they can remove Medicare or Medicaid funding. In our case, that is equal to about 55 percent of our income. There is a significant incentive for the hospital to ensure that they stay in compliance.
Senator Neal:
The reports that you now compile, are they of the description, say, of an incident and serious event? Is that the title of the report, or section of the report that is subtitled?
Mr. Hutting:
Yes, Senator Neal.
Senator Neal:
If that is the case, then why would it be difficult to extract that information and send it to a repository in the State?
Mr. Hutting:
It is not difficult to obtain that information. I would submit, that the Bureau of Licensure and Certification can, at any time, request that information, and we would make it available.
Senator Neal:
Well, you know, we are trying to limit the cost of malpractice insurance. Whether or not these reports would do that is the question. Apparently the Assembly is of that opinion, that having these reports have that type of substance. These reports that you now develop―take, for example, the incident report, is that a separate, entitled report?
Mr. Hutting:
Yes, Senator Neal, it is. And then the reports are broken down by category. For example, we have an incident report that tracks data for the last 3 years of falls that occur in the hospital.
Senator Neal:
Now, the serious event report. Would that be a part of the incident report? Would that be in a box or something that you would check off if it is a serious incident, and then describe what that incident was, what that serious event was?
Mr. Hutting:
What you are describing as a serious event, the joint commission categorizes as a sentinel event, and that is kept separate. A report is made to the administration of the hospital as well as the governing board of the hospital. The joint commission requires that we do what is called a real-cause analysis, which is a drill-down analysis of the cause and effect of that specific incident. The joint commission is also, now, requiring from the standards standpoint that all accredited hospitals institute what is called a failure-mode effects and criticality analysis, which is a standard that has been adopted from the U.S. Navy.
Senator Neal:
Are you part of the hospital association?
Mr. Hutting:
No, I am not.
Senator Neal:
Let me direct this to Mr. Welch, as head of the Hospital Association. Are all of these reports similar throughout the hospital association group?
Mr. Welch:
Senator Neal, the reports may be different. The parameters, the guidelines and the standards, for which those reports must be established, are the same for every hospital. When they come in, whether it is Medicare, the State, JCAHO, they will evaluate each hospital system to ensure that it meets those standard guidelines and objectives as they find in their departments.
Senator Neal:
The JCAHO, or the Medicaid and Medicare group, do they have a designated form number for such reports?
Mr. Hutting:
No, they do not, but I think what we are talking about is form over substance. The substance of that is required in the reporting mechanism, and the correction and aggregation of data is consistent. The format in how you choose to collect that data and how you choose to present it, is left up to each individual facility.
Senator Raggio:
I think, this is one of the reasons why this is something that should have more debate and attention, and since it will not go into effect, in any event, until the next session is over, maybe we ought to consider that.
Robin Keith (President, Nevada Rural Hospital Partners):
I have a brief comment to make with regard to the smallest of our rural hospitals that are not Joint Commission accredited.
Senator Raggio:
Are you still conducting an adequate job of reporting, consistent to what Mr. Welch testified?
Ms. Keith:
I am. That is the point. We want to participate in a well-thought-through project and do not want a lower standard.
John Yacenda (PhD, MPH, PAHM; Chief Executive Officer, Health Care Strategies, Inc.)
I am chairman of the interim subcommittee that studied medical errors reporting. I want to concur with your sense of recommendation that this should be moved to fuller deliberation in the next session. I need to comment that, based on what my chairman (Senator Rawson) said earlier, we have several recommendations, many of which are mirrored in this legislation. The subcommittee is going to go before the full committee on August 20 for the consideration of possible legislative actions, all of which are dedicated to patient safety and a healthier, safer environment in Nevada for our citizens.
Senator Raggio:
Is the subcommittee, to your knowledge, going to recommend a bill draft that covers these areas in the next session?
Dr. Yacenda:
The committee will recommend a bill package relative to surveillance, creating a surveillance system that would gather most of the information that is being discussed. The big difference between a surveillance system, that we envision, and this bill is, this legislation goes way beyond collecting information. It goes to actually having people prescribe medical practices and procedures that should be followed by individual medical facilities, locally or statewide. It takes a step beyond gathering information to assess what is going on and then creating best-practice sharing of information to create change.
Senator Raggio:
That makes sense. I do not think, we should act precipitously at this time and usurp the effort that is being put forth in your subcommittee. That would be my opinion.
Let us go to section 50 of Assembly Bill No. 1, which corresponds with Section 18 of Senate Bill No. 2. Those sections are identical. Senator Neal had someone who had asked to be heard on this issue?
James S. Tate, Jr., (M.D., F.I.C.S., F.A.C.S.):
I am the president of the West-Crear Medical Society, which is the local branch of the National Medical Association.
Senator Raggio:
Section 50 requires a minimum amount of professional
liability insurance coverage for a physician licensed in this State, at $1
million per occurrence and $3 million in the aggregate.
Dr. Tate:
Yes. I received information that this was something the so-called Nevada Physicians’ Task Force asked to be included. Let me make it very clear that, as a representative of black physicians in the State of Nevada, we were never allowed to be a part of that, and we do not take any responsibility for that. This is a very bad idea. If you pass this, you put me and a lot of other black physicians, out of business. Never before has the State required a physician to carry a certain amount of medical malpractice. That has always been the purview of the hospital. Many of our members are office-based physicians, and they do not carry large amounts of medical malpractice because they really do not need it. In my own case, I am a trauma surgeon. I work at University Medical Center.
You have already passed a portion of this bill that says, if you work at UMC, you are capped at $50,000, but now you are requiring a $1 million and $3 million malpractice premiums. Anybody who has been in the State and doing trauma for more than 5 years has been sued, probably multiple times. Our premiums have skyrocketed to the point that they are not even considerable. For example, my insurance company, which, by the way, said that they would not insure anybody who does trauma any more, wanted $132,000 for tail coverage. To be perfectly frank, Senator, that is more than my house cost. I do not think anybody has $132,000 for malpractice insurance. I will go back to doing what I was doing before I became a doctor, which was driving a bus.
At some point, it gets to be ridiculous, and I think you have to understand. In this State, particularly, black physicians are often the early warning system. We told the Insurance Commissioner a year ago, “This is going to become a crisis; you need to do something now.” She politely dismissed us, and sure enough, now, we are in this crisis. Our bottom lines are usually so tenuous because we see people who do not have money. They are generally sicker. They generally do not have a lot of insurance. So, anything that happens affects our bottom line. We feel it right away, whereas others may not.
Again, if you pass this, it would be a disaster for us because we just would not be able to do it.
Senator Raggio:
Doctor, are you saying physicians, who are practicing, treating patients, today, do not carry any medical malpractice insurance? Are there physicians who do not?
Dr. Tate:
There are some who do not. If they are office-based physicians, most do not carry that much insurance―a heavy burden of insurance. They carry somewhat less if they do not have a hospital requirement.
Senator Raggio:
What do you carry?
Dr. Tate:
I carry zip. I am not working now. I am temporarily out of work because my insurance company, as I said, decided they would not renew the policy for doctors doing trauma. Now, we are trying to find another policy.
Senator Raggio:
Have you made application to the State?
Dr. Tate:
Yes, but we have not heard back from them yet. That has been about three or four weeks ago, so they are taking their time.
But, for example, UMC requires $50,000 and $150,000, and it would be possible to practice just at UMC and still do trauma, still see the trauma patients, with $50,000 and $150,000. But, if you require $1 million and $3 million coverage, I do not know what that is going to cost because nobody has bothered to give us a quote. As an example, my partner, who has been here less than 2 years and has never had a claim filed against him, they want $57,000 next year for his policy.
Senator Raggio:
Is he a trauma doctor?
Dr. Tate:
Yes.
Senator Raggio:
He practices only in trauma?
Dr. Tate:
No, he practices all over. He does have the $1 million and $3 million coverage, but that is what they want for a year. I have been here for 15 years. I cannot even imagine what they will be asking from me.
Senator Raggio:
The difficulty is that with a cap, to make it effective, there had to be a maximum. The maximum limit under the cap is the limit of the professional liability policy that is required. That is the reason, I think, for that level of coverage and to ensure that every physician who is treating a patient under any setting would have at least that amount of liability insurance. I do not know how we are going to address this. The question was also raised by some who are physicians, who do not treat patients, who may be holding a position at an administrative level, but they do not ever actually treat patients. They have to be an M.D., but in order to keep their license, they have to acquire this insurance. That is a similar problem. We will have to think about that.
Senator Rhoads:
I have been getting calls from my rural district, from doctors that are going to have a hard time with this.
Denise Selleck Davis (Executive Director, Nevada Osteopathic Medical Association):
I am a full-time executive director, and I am not a physician. I am not an actuary, nor am I salesman of insurance.
The Nevada Osteopathic Medical Association (NOMA) represents 200 member physicians of the 350 osteopathic medical professionals in the State. NOMA is the only representative of this group. We have not been part of the task force, nor were we invited to the table. When you hear the group speak about “the doctors,” we have not been consulted and are not part of that group. The number one area of practice among osteopathic physicians nationwide is family practice. Across the country members vary, but they fill approximately 35 to 40 percent of all rural physician positions. Many of these physicians through the last few years, both in urban and in rural areas, have discontinued hospital work. When you go to your family physician and you are ill enough to be hospitalized, they turn you over to specialists, either the area that is covered by your condition or possibly by a new specialty that has arisen called hospitalist. Part of the reason that they do that is because their insurance vastly increases when they set foot in a hospital. Your family physician is no longer going to visit you in the hospital when you are ill, even to come check on your care, see that you are being treated and work as your advocate as your family physician may have done in the past.
This section requires the same amount of insurance for the office-based family physician as it does for an invasive cardiologist. That cardiologist is considered a higher risk category, and should be. The doctor who treats you for a sore throat is not operating on the same level, we hope, as the physician who is opening your chest. We believe that it is an unfair burden to require these amounts of insurance―$1 million and $3 million―as a licensure requirement. We do have physicians who do not see patients, who are medical directors, who do insurance work in workups and evaluations. We also believe that these are professionals. These are the people that you trust with your life and with your health. We believe that they are intelligent enough, and wish to protect their families and the assets they have worked hard for, that they will have proper coverage in order to work. If they decide to do hospital work, their coverage will need to increase. If they decide to do higher-risk categories or extend their education into those kinds of practices, they will need to increase their coverage, and they will do so. We think they are intelligent enough to make the decision of how much insurance they should carry. None of us would want to risk our homes; we carry homeowners’ insurance. None of us wish to risk the things that we have worked for. We are smart enough to go buy those things. These are professionals. These are not people who make these decisions lightly. But they also wish to continue to see their patients, to give them the best possible care they can.
Their reimbursement is dropping every year. They are actually making less money than they made 10 years ago. Now we are talking about increasing their rates as part of their license requirement, regardless of their practice. In some states, for instance―and these figures were just given to me, today, over the phone, so I do not have them in a report to give you―Colorado, which has tort reform and caps, requires $500,000 and $1 million coverage. Connecticut is the same as Colorado. Indiana is $1 million and $3 million coverage, as you are proposing. Kansas requires $200,000 and $600,000. Louisiana bases it on hospital admissions. Missouri determines it based on the population of the county that they live in, and whether or not they do hospital work. They require a maximum of $500,000, and that is for areas of high population and hospital work.
Senator Raggio:
Our primary goal was to adopt a workable cap for non-economic damages. That was our main goal in creating some tort reform, meaningful tort reform. The compromise was reached by all of those who professed to have an intense interest in this, to establish a minimum cap, a cap of $350,000 with the understanding that if, in those cases where there was―whatever the exceptions are to the cap under our version―gross negligence or something of that kind, there would be a fair opportunity to exceed that cap in non-economic damages up to some level. In order to make it work, a level of $1 million was established, and that also recognized that you deducted any economic damage from that amount. But, it had to be some maximum level.
You cannot create an effective maximum level unless there is some requirement that the physicians who are going to be found liable have some ability to pay. The only way that is going to work is to have a professional liability policy that has at least that level. That is the reason that this is in here. I do not know how that can be changed without doing complete surgery to the effect of the bill. I guess you could say, “Well, we are going to require only certain physicians or certain specialties to carry this kind of insurance to get a license, and others do not have to.” That, obviously, is going to be subject to a lot of consternation. I do not know what the alternative is at this point. I think, and I understand Dr. Tate’s concern and others, that you have to have some obligation to protect yourself as well as to provide some fund that is a good source for at least some compensation to be paid where there have been these serious injuries. I do not know the answer. I am just musing out loud.
Ms. Davis:
If I could respond to that, this topic has been a topic of conversation among many of our physician members for well over a year.
Senator Raggio:
Let me make this point, because following what you said and that is why I brought this up, if we did that and the physician only carried a policy with, say, a limit of $350,000, it would not mean anything under this situation where you can exceed the cap.
Ms. Davis:
I have heard of no physician who has any interest in going bare and working without insurance. I know of no physician who is interested in working with so little coverage that he risks his family or his assets. That would be a very foolish mistake on any of their parts.
Yesterday, Senator O’Donnell made an analogy about buying his 16-year-old daughter a car. If he buys her a hot, red sports car, it may be a very expensive insurance policy. Sixteen‑year-olds driving hot sports cars have a tendency to have high accident rates and to drive less carefully than, shall we say, my mother at age 65 driving a Buick that is 15 years old. We have physicians who are practicing in small practices, family physicians who are one-doc, one-office physicians. And yes, those physicians are going away. They are not going to be with us, probably, within the next 100 years. But, we still have one-doctor, one-office physicians, and they are, in many cases, in smaller towns. I have one in Boulder City that I spoke to this morning, and his comment to me was, “At those limits, with the amount of practice I do, I will have to retire.” We have heard from physicians in Elko who will be under the same situation, that they will have to make the decision of whether or not to provide health care in areas that are already under-served, which, by the way, is the entire State of Nevada.
Senator Raggio:
The problem is that even doctors who treat patients in those settings can be guilty of negligence or gross negligence, which would cause a verdict to occur that would be above the cap. How do we handle that if they do not have insurance or because they do not want to pay the expense to be a physician. They just carry insurance to the amount of the cap? How do we handle that?
Ms. Davis:
When you came here, you came here with the express purpose of seeing to it that access to health care was guaranteed. You have been given a terrible burden. You have spent a great deal of time and work. I have been so, terribly, impressed with the amount of dedication over the last several months that have been put into this. This is not an easy decision to make. What I guess I am suggesting most is that we need to be aware that we have physicians who practice at different risk levels. A trauma surgeon who is brining people back literally from the dead and is working in a trauma center under emergency situations, works at a different pace than the family physician who is seeing people in his office that he sees on a regular basis and for routine health care. To require the same amount of coverage from them is an over burden to those family physicians, and may, in fact, eliminate their availability to the public. I am sorry I do not have a solution for you.
Dr. Tate:
Let me make one point. When I first got to Nevada, when I first got to Las Vegas, the hospital was requiring something like a maximum $500,000 for malpractice. There was a big debate that said, if you take it up to $1 million and $3 million, the lawsuits are going to triple because everybody is now going to go after that $1 million. That is, in fact, what happened. I do not know where you got the $1 million and $3 million figure. I can understand, as a physician, that you need something above the cap, but why $1 million above the cap? As has already been stated, trauma surgery is a very risky business. All of us have been sued. All of our rates have gone up. I do not know what you want us to do.
Senator Raggio:
I do not know enough about the situation to warrant an opinion as to whether or not, if you were a doctor and you obtain a policy, they would provide a policy at a lower premium, provided that it only covered acts that you perform within the trauma center where you are employed. That may be obtainable. I do not know.
Dr. Tate:
Not with this bill. That is not even possible.
Senator Raggio:
You could not be a physician; you could not be licensees?
Senator Coffin:
This is an area of the bill I had not really focused on before, but it is beginning to haunt me, only because it brings back memories of previous sessions when we worked on automobile insurance. Senator Townsend, Senator O'Connell and Senator Shafer will remember the no-fault auto insurance bill I introduced, and got it out of committee. I had my ears pinned back pretty thoroughly by the trial lawyers because I did not see why we should have to force people to buy insurance. That was my philosophy then. People needed insurance if they have assets to protect. At this point, in the State, we require a person, no matter how wealthy they are or how poor they are, to have $15,000 and $30,000 of auto insurance. They can buy more. If they are smart and they have assets, they had better have it or they could lose everything. So, I am kind of troubled by this because, in a way, what we have is kind of a country doctor syndrome here, but it can occur right in the middle of the largest county in the State, as we have seen. When he says an office-based doctor, he means he could be even working out of a home office but not going into the hospital. Now, they are governed by the medical rules at the hospital if they want to be admitted there, but I would wager there are some doctors that just do not go to the hospitals. They just treat people and that is it. Maybe we are treading into areas here that are a bit intrusive. On the other hand, I do not want to, necessarily, totally, upset the apple cart upon which this bill is resting. I do not know if this is the lynchpin for the entire bill, but I do not think it hurts to discuss the possibilities.
Senator O'Donnell:
Mr. Chairman, when we got involved in this particular measure, we had a bill that was handed to us from the Governor’s Office that was agreed to by a group of physicians, not all physicians, but a group of physicians. It was handed to us to discern and decipher what was the real and good policy to promulgate for the medical community, for the attorneys and for the public. That being said, here you have a group of Legislators who voted to extend the coverage of $50,000 to trauma patients no matter where they go. You have a physician who works for the county, who does not make a lot of money. He could probably make a lot more money on the outside working as a regular physician, having a regular practice, but he works for the county, and we require him to have a $1 million, $3 million policy. At the same time, we limit his exposure to $50,000. We also tell him that, by the way, you are not getting a raise next time because the county does not have any money. You have got this guy in the squeeze. And not just this gentleman here, but the doctor that this person represents was not over at the Governor’s Office agreeing to this deal. That is just blatantly unfair. We get information hourly in this committee that makes us rethink what we have done. I, like Senator Coffin, think that maybe this ought to be analyzed and re-looked at in the proper way. We have to be careful what we are doing here.
Senator Raggio:
I had hoped that by 2 o’clock we would have had our work completed on this bill and also on Senate Bill No. 3. We are going to have to utilize an outside limit of 3 o’clock to get all this done. I know it is going to be a lot to do, so let us try to stay in focus. If we are going to have any hope of adjourning, after conference committees and all, we really have to try to keep to that schedule. Let us go on.
Section 51, I believe, is identical. Is that correct? Let me ask a question first that has come up. The question has been raised to me several times, and to others, whether or not the passage of this bill is retroactive, and whether or not it applies to any cases now in the pipeline―cases that have been filed before the effective date. What is the opinion of the legislative counsel?
Mr. Wilkinson:
The provisions in the bill pertaining to caps on non-economic damages and the provisions pertaining to several liability do not apply retroactively. They apply prospectively based upon the accrual of cause of action.
With respect to cases that are pending before the screening panel, as was discussed yesterday, those people have the right to remain in the screening panel system, or opt out and file their action in court. However, regardless of what action they take, the provisions pertaining to caps and several liability will not affect their case.
Senator Raggio:
Section 52 is identical. When I say identical, it is identical to Section 20 of Senate Bill No. 2. Section 53 is identical to section 21. Section 54 is identical to section 22. Sections 55, 56 are identical with those sections in sections 23 and 24 of Senate Bill No. 2. Again, section 57 contains the minimum amount of coverage for a dentist, $1 million and $3 million in the aggregate. I do not know whether that is a similar situation or not. Let us assume that it may be. Sections 58 and 59 are new sections in the Assembly bill. Tell me what those are. This is the same on the retaliation, is that right?
Mr. Wilkinson:
That is correct.
Senator Raggio:
This has to do with the reporting?
Mr. Wilkinson:
The recording.
Senator Raggio:
So that is included in our discussion. That applies to osteopaths, is that right?
Mr. Wilkinson:
That is correct.
Senator Raggio:
Section 60, again, that is referring to an employee not being discriminated against. Same thing?
Mr. Wilkinson:
That is correct.
Senator Raggio:
Section 61 corresponds with section 27 of Senate Bill No. 2, and again that is the licensing requirement for the insurance for osteopathic physicians.
Mr. Wilkinson:
Correct.
Senator Raggio:
Section 62 is identical to section 28. Section 63 is identical to section 29. Sections 64 and 65 are identical to sections 30 and 31. And sections 66 through 73, as I understand it, are identical to Senate Bill No. 2. Section 74 is the section that deals with reporting and the effective date. Is that correct?
Mr. Wilkinson:
That is correct.
Senator Raggio:
Otherwise, section 75, which is the language setting the effective date, is identical to section 40.
Mr. Wilkinson:
Right.
Senator Raggio:
Section 1.5 is the pro bono provision. The Assembly does not have that in their bill, is that correct?
Mr. Wilkinson:
That is correct.
Senator Raggio:
Is everyone now familiar with the differences?
Michael R. Alastuey (Assistant County Manager, Clark County):
We come only in friendship to the process, not to support a particular interest group. I have just received a call from our district attorney’s office, Office of County Counsel, relative to what Dr. Tate and others were discussing―the relationship between the minimal policy coverages and the caps. Our county counsel has pointed out, and I would voice this as a request of the Legislative Counsel Bureau’s Legal Division, that we all want to take pains to make sure there is not an unintended consequence here.
Nevada Revised Statute (NRS) 41 provides for sovereign immunity in a number of ways in a generalized capping mechanism and also with respect to specific circumstances regarding medical care. We have noted that in section 1, there is mention that, except as provided in subsection 2 in NRS 41.505, a hospital, which is designated as a trauma center, an employee of such a hospital, a physician or dentist, or a physician whose liability is not otherwise limited, pursuant to NRS 431.032, which is a generalized cap, then falls into the circumstances providing for the $350,000 cap and, then, the relationship between the $350,000 and the policy limits. We would want to make sure, with the assistance of Legislative Counsel Bureau, there is not an unintended consequence where other institutions or an employee, now with a hard cap of $50,000, would be drawn into the $350,000 or the $1 million or a circumstance beyond that. That would be our request.
Senator Raggio:
Has there been suggested language as to what you are proposing?
Mr. Alastuey:
As it comes from county counsel, we would like the Legal Division to examine the possibility of striking the reference in paragraphs (a) and (b) in subsection 1 of section 1 of the bill.
Senator Raggio:
You are looking at Assembly Bill No. 1?
Mr. Alastuey:
Actually, I am looking at both bills, I believe.
Senator Raggio:
Why? I do not understand what the problem is here. What we are trying to do is make the same cap available whether it is in a trauma-designated hospital or any other hospital under the same circumstances. What is happening there?
Mr. Alastuey:
Currently, UMC as a public institution is under the $50,000 cap. The direct employees of UMC are also under the $50,000 cap. The area we all want to get to is to some limitation of liability for those individuals who practice at those institutions who are not employees. In so doing, we simply want to take care of those individuals, and perhaps this bill does that, but we are not absolutely sure. We want to take care that the existing cap available to UMC as a public institution, and to UMC employees as public employees, is not diluted or, in effect, breached as an unintended consequence.
Senator Raggio:
I do not understand. What did we do to UMC as a trauma hospital that would dilute the cap they are under? They are under a $50,000 cap. How does this dilute that?
Mr. Alastuey:
We want to make sure there is not an unintended consequence, and so we, simply, ask an additional reading of this bill with this in mind. If NRS 41.032 specifically limits that liability, in general terms, and yet, there is specific treatment of a hospital as a trauma facility or an employee of a hospital as a trauma facility, should that be in a public circumstance, which UMC is―a public institution―we would not want the general construction, and we remember the words of legislative counsel past, that the specific can override the general. We would not want to see those circumstances uncapped, either UMC or its employees. If this bill is solid in that regard, then we support it in its current form. If not, we would, simply, want a legal examination to avoid an unintended consequence.
Senator Raggio:
Let me ask our legal counsel who has been listening to this. Is there something in this bill that does that?
Mr. Wilkinson:
Mr. Chairman, I have been trying to follow the argument. It is not entirely clear to me how or what the problem would be. Paragraph (a) refers to a hospital that is a trauma center that is already a non-profit organization. Mr. Alastuey, which provision is it, specifically, that would create some sort of conflict?
Mr. Alastuey:
It is not a conflict. We wanted to ask the question and have it answered to everybody’s satisfaction. Does the potential redundancy between the general cap for the public institutions and the specific mention of health care institutions and employees of health care institutions in this section and elsewhere, does the redundancy beg the legal question that there is a possibility the $50,000 cap could be breached in an actual legal outcome by virtue of other than what I see here?
Senator Raggio:
There is no intention in this bill to do anything like what you are saying, and I am failing to read the language that does that.
Senator O'Donnell:
In section 5, it says that the cap can be raised if there is gross negligence or if there is clear and convincing evidence.
Senator Raggio:
I do not think that is true in a trauma center.
Senator O'Donnell:
That is what he is saying. It’s in two sections. There is section 5 and then there is the trauma section. Which one do I fall under, and am I protected? Am I continued to be protected under the trauma center language, or does section 5 supercede that trauma center language in the event I go to trial and found to be grossly negligent and/or under clear and convincing evidence?
Mr. Alastuey:
We want to make sure there is a careful and complete coordination between conserving all of the existing cap mechanism and extending the cap protection in the circumstances that we all want to see.
Senator Raggio:
I am not the one that gives legal opinions to this committee, but it would seem to me that there is nothing in this bill that otherwise upsets the present status of tort immunity with a $50,000 limit for the State. Is there, counsel?
Mr. Wilkinson:
No. We specifically attempted to address that in paragraph (d) of subsection 1, and I do not foresee that it would be any problem the way this is drafted.
Senator Raggio:
In case you ever get in front of a court and that issue is raised, Mr. Alastuey, you can tell the judge that I said so.
Mr. Alastuey:
Yes, Senator, that is what I would do. In addition, we also wish that the existing cap available in the law for certain physician employees be taken into account in examining section 50 and those subsequent sections related to the malpractice coverage requirements. We would simply mention that on behalf of the physicians at UMC that are capped right now, that are practicing and licensed.
Senator Raggio:
It seems to me we have a couple of issues to consider in order to get to the conference committee. We are going to have to amend Assembly Bill No. 1 substantially to what the Senate bill is, pass it out of our House so we can get to a conference. That, hopefully, can be done today.
On the first issue, which is all of the sections dealing with the so-called Pennsylvania reporting system, how many on the committee would prefer to not deal with it at this time and handle it as a matter in the regular session? This is the reporting system that we heard all the testimony about, and, as we indicated, does not become effective until July 1, 2003. It seems to the chair, just from what we have heard here, there has not been enough time yet to measure the result achieved in Pennsylvania. This can be something we can deal with in the regular session. What is the committee’s pleasure on that? It seems that a majority of the committee would rather handle it in the regular session.
That means we would amend Assembly Bill No. 1 with the same version of Senate Bill No. 2 that we sent over there. Reporting, now in the Senate version, goes beyond the present that does require reporting of claims filed and things of that kind.
What about the issue of the $1 million and $3 million insurance provision? We understand the reason it is in there, so that there is some capability in those cases that exceed the cap for recovery. The problem seems to be that it can be onerous because it is also going to be a requirement that a physician, to be licensed, is going to have to carry that amount of insurance.
Senator O'Donnell:
Mr. Chairman, you have a situation in a county hospital where a doctor might be making $300,000 as a county employee, and yet now he has to carry $132,000 worth of premiums to have the ability to work in the trauma center where he is capped at $50,000 liability. It makes no sense.
Senator Raggio:
And the other situation is where a doctor, dentist, osteopath, whoever, may never treat a patient, may hold a position in an administrative capacity but has to be an M.D. It does seem onerous to require that person to carry this kind of insurance to get licensed. The other side of this is, can you make it a requirement that only certain doctors have to carry this kind of insurance? I do not know whether that is fair, either, so where do we go with this?
Senator Rawson:
I am not sure that I have an answer. I suppose you could look at it, one, from their risk, whatever their risk factor is.
Senator Raggio:
One easy way to address it would be to say that any physician or dentist who is treating a patient would have to carry this insurance in order to be licensed. Now, that does not solve everybody’s problem. It does not solve the problem that Dr. Tate mentioned here because he is in a trauma setting. But, if you start carving this out, you are going to get some very difficult results. I do not know whether that is an understandable and a reasonable classification to require licensing by an insurance requirement for only physicians who actually treat patients.
Senator Rawson:
Another possibility would be to base it on income. I am not suggesting that. I am just saying that is another approach, so you could be by the risk, income, population and the size of the county you are in.
Senator O'Connell:
At one point in time, I asked if we could look into the availability of an umbrella insurance policy and a rider, if you would, for liability. I do not know if that is a possibility, or if it is done anywhere, but I wonder if Mr. Wadams or somebody who is in the insurance business could address that possibility.
Robert Byrd (Chairman, Medical Liability Association of Nevada):
It seems to me that it would be logical for this entire issue to be handled through the rating process in the insurance company. That can be mandated by the Insurance Commissioner, and they could pass on those rates. We could recognize the level of risk and reduce that rate to where it is appropriate for that risk.
Senator Raggio:
Should we mandate that in legislation? How? I am not sure what you are saying.
Mr. Byrd:
I am saying the Insurance Commissioner could mandate that we file a rate that will recognize the level of risk of those individual doctors.
Senator Raggio:
You are saying we should keep the requirement that they have this kind of coverage to be a physician?
Mr. Byrd:
As far as those doctors that see patients are concerned, yes.
Senator Raggio:
I understand that. But the problem is, and that seemed to me to be a clear answer for the moment, that only those doctors who actually treat a patient or patients would have to carry this kind of insurance in order to be licensed. My first question was, is that appropriate? Is that a reasonable thing to do? Assuming it is, then you are saying in your company you can look at that―the doctors that only sit in an office and treat patients in their office or are in an administrative function and never see a patient.
Mr. Byrd:
Or a doctor in a trauma center who has limited liability.
Senator Raggio:
So, we would not have to change this?
Mr. Byrd:
Correct.
Senator Raggio:
We could keep this provision and, to your understanding, your company, at least, would do that in the rate process. So a doctor like Dr. Tate would have to pay a premium, but it would be adjusted.
Mr. Byrd:
It would not be an enormous payment.
Senator Raggio:
I understand.
Mr. Byrd:
And that could be controlled through the insurance department.
Senator Raggio:
However, there is no assurance that Dr. Tate or any other physician is automatically going to be accepted for insurance purposes.
Mr. Byrd:
They would still have to undergo the underwriting process. That is right.
Senator Raggio:
That may be the situation.
Senator Rhoads:
Would that work in the rural areas?
Mr. Byrd:
I do not know any reason why it would not. It should. From an underwriter’s standpoint, there would not be any reason for it not to.
Senator Raggio:
I think that is a logical approach.
Mr. Byrd:
It makes perfect sense from an underwriting standpoint.
Senator Rawson:
Would it be bad policy for us to include in the legislation that this issue is assigned to the Division of Insurance? In other words, direct how this will be done?
Mr. Byrd:
That would be an excellent idea.
Senator Raggio:
Counsel, what we are looking at here as a potential amendment, if I can speak for the committee at this point, would be to leave the provision as it is so that all physicians, all people covered under this act, would be required to have this coverage. We are also suggesting that something else be added that would require the Insurance Division to do what?
Mr. Byrd:
To mandate a rate classification recognizing the potential risk characteristics.
Mr. Wilkinson:
The concept is venturing into the area of medical malpractice insurance reform that we had previously expressed the opinion was outside the call of the Governor’s proclamation.
Senator Raggio:
I was looking at this section that was in the bill that was provided.
Mr. Wilkinson:
That is true.
Senator Raggio:
We are only talking about the limits of liability insurance that has to be carried for licensing. How can this not be relevant to that?
Mr. Wilkinson:
This is specifically tied into the issue of medical malpractice. It would certainly be up to the committee to make that determination if that was desirable.
Senator Raggio:
Let us proceed with this, because I do not want to go back to step one and a half. Then, if it is your firm opinion about what we are doing is beyond the call, we will just have to ask the Governor to send us a letter that indicates that we deal with it.
Senator O'Donnell:
One possible solution would be to keep the $1 million, $3 million in the bill and allow the Insurance Commissioner to determine by regulation mitigating circumstances where a physician could make the case to the Insurance Commissioner.
Senator Raggio:
I think that is what Mr. Byrd is essentially saying. We will put in here that the Insurance Commissioner will mandate the rate based upon the level of risk in so far as doctors treating patients or not treating patients. Whatever the basic language is that gives that authority. I think we have clearly stated our intent.
Ikram U. Khan, M.D. (General Surgery):
On the same subject, the $1 million, $3 million coverage, I have served on the Medical Licensing Board for eight years. There are a few issues you need to keep in mind. In today’s environment, if a doctor has had one claim of any consequence, insurance companies are refusing to insure this doctor. A large number of us are in that category. If these insurance companies refuse or cherry-pick these doctors―they are good doctors―they would not be insurable any more, $1 million or $3 million or anything. That is one component of it.
If you make the $1 million or $3 million coverage mandatory, there are medical directors, non-medical physicians in towns or states who do non-clinical work. They, too, would be required to carry a $1 million policy though there are not mitigating circumstances for them, but they would be required. You would lose all those consultants, medical directorships, because they would be required to carry the $1 million, $3 million coverage also.
There are also issues in terms of the $1 million, $3 million coverage because of the exemptions you are considering. Even in those exemption cases, the maximum award was $1 million in non-economic damages. Most of those exemptions have been deleted in the Senate version. The $1 million and $3 million coverage came into existence to minimize the exploitation of the physician even in those exceptional circumstances. These are the three or four areas you need to keep in mind.
Were the $1 million, $3 million coverage to go up and now those coverages are required to be $2 million, $5 million, are the hospitals or managed care going to require that? The bar keeps going up for the physician, and we are at the mercy of the insurance companies. Unfortunately, we have been at their mercy and are getting more and more in their grip. They get higher premiums at $1 million and $3 million and now they have a big jackpot.
Senator Care:
If we adopt the amendment, what happens in the case where a doctor, who is paying a lower premium based on the risk assessment, but strays outside of the parameters of their practice contemplated by the carrier, and it is determined to be malpractice to a degree that far exceeds whatever that lower coverage is? What do we do with them?
Senator Raggio:
I do not know.
Senator Rawson:
It is not lower coverage. It is simply a lower premium. He still has the same actual coverage, so as this amendment would state that it is risk-assessed. That is simply the premium that they would be paying.
Senator Raggio:
I assume, if he gets into a higher-risk area, the next time they issue the policy they are going to raise his fees.
Senator Titus:
We can tell the Insurance Commissioner, now, to charge certain people who have certain practices a lower rate?
Senator Raggio:
The commissioner does not charge anything.
Senator Rawson:
We would simply be mandating the Insurance Commission to ensure that all insurance offered in the State is risk-based, risk-assessed.
Senator Raggio:
The commissioner has the right to approve the rates that are charged by insurance companies.
Senator Rawson:
Would it be out of the question for us to establish a date for that risk-assessment? In other words, we start cold. There are people that have past histories and so on, but we are starting a broad new proposal now, and we start cold with the date of this.
Senator Titus:
I do not understand. The commissioner has that much control over the rates. Why can’t she just bring the rates down?
Senator Raggio:
I think, the answer to that is, there is a distinction between either us or her just mandating across-the-board rate reduction. If she mandates that, the insurance companies probably would not issue insurance in the state if they could not do so in a profitable way. What we are talking about is different. We are talking about her office looking at the level of risk in these positions and mandating that there be a distinction in the premium based on the level of risk. That is what I understood Mr. Byrd to say.
Senator Titus:
I cannot believe that is not happening already.
Michael J. Fischer, M.D. (Ophthalmology):
I wanted to answer your question in reference to what to do about the doctor who does something different. Each one of us, when we get our malpractice insurance, we have to deliver to the malpractice companies exactly what we do in our practice. When some kind of a new procedure becomes available, you are not covered unless you notify your insurance company and they sign off on it. The answer is, if someone were to do something that he was not covered for, probably, his malpractice company is not going to cover it, and all of his assets would be up for grabs.
Senator Raggio:
That is helpful.
Committee, we have to make a decision. Would the committee be comfortable or not with leaving the requirement in the bill for licensure and then directing the Insurance Commissioner, as I understood the suggestion, to mandate that the insurance companies adopt a rate that recognizes the level of risk with respect to physician categories?
If we just strike it, then we are back to square one and a half, again, on this because the effective cap does not work.
Senator Coffin:
Maybe one way to solve this is to reduce the amount. If we are going to mandate at the state level, maybe you need to leave the provision in but you just change the numbers. What other section of the bill would be affected if we changed the numbers?
Senator Raggio:
The maximum amount that would be recoverable in the cap for those injuries that are outside of the cap. That is the only place it would be applicable because in those cases that would come under exceptions, as we call it, paragraphs (g) or (h), the amount of recovery is limited by the amount of professional liability coverage. So if you lower the amount, you are lowering the amount that would otherwise be recoverable in those cases. I do not think that is what you want to do.
Senator Coffin:
That makes sense. The only experience I had on this was back in January. I began to research it when the crisis first started. I asked the commissioner to ask some companies, because availability was more of a problem than price at that time in my mind, I asked her what about trying to find out if the companies will write a $5 million cap. None of them would. Actually, some said, “Well, that will just raise the target that lawyers will go for.” So, doctors did not want it. Insurance companies could not price it so my idea fell by the wayside, and you never read a word about it.
Senator Raggio:
As a suggestion from our staff, since we are looking at that maximum liability under section 5, what if we provided that in order for a physician to be protected by that cap the physician would have to have liability insurance up to that amount?
Senator Townsend:
Two things. Number one, that addresses the concern about practice, because you are not likely to be sued if you are not practicing.
Senator Raggio:
A doctor will not have the protection of that maximum liability unless that doctor carries the cap. Then we do not have to make it a condition of licensure.
Senator Townsend:
Absolutely. The other thing that is important is the issue of what was brought before us relative to the Insurance Commissioner. You cannot start dictating certain ways to apply and analyze premiums in certain segments of the insurance industry based on whatever public need you have at the moment. I think, you are prohibited by federal law. You cannot do that. You cannot instruct her that you are going to bring every person in and say, “Well, that person is a risk.” That is not the way insurance is done. Your premiums for your most at-risk doctors would, absolutely, sky-rocket, and the individuals, say your general practioners, who are working in a less than clinical setting, would drop to the appropriate risk. That would be disaster.
Senator Raggio:
We have got to get things moving here.
Senator O'Donnell:
I think I can solve this problem. Keep the $1 million, $3 million coverage, but instead of allowing the Insurance Commissioner to set actuarial rates for those low-risk doctors, allow the doctors to petition the Insurance Commissioner for a lower cap, maybe a $500,000 cap or a $300,000 cap. When you have a situation where you have rural, county doctors practicing in the rural areas treating colds and sniffles and are going to require him to have a $1 million coverage, when the attorney goes to court for a malpractice suit, he is going to ask for the policy limits whether it is a hangnail or whether it is leaving a pair of forceps inside someone. They are going to ask for the policy limits. If they settle, the next premium cycle that comes around for those rural doctors is going to skyrocket. Instead of allowing the Insurance Commissioner to establish the rate, or mandate that they have rates commensurate to certain and different practices, allow the Insurance Commissioner, by petition, to lower this $1 million, $3 million requirement on special circumstances and allow her to draft the regulations to mimic this.
Senator Raggio:
It is a worthwhile suggestion, but I think that it does not solve the situation that we were trying to address. If she mandates a doctor to have a lower cap on non-economic and there is, somehow, an injury that occurs, then you are limiting the recovery to much less.
It seems to me that some doctors, who do not have this kind of risk, may not want to carry that kind of insurance. A trauma doctor who is an employee of the hospital, and that is all he does, may not, like Dr. Tate. He may not have to have that kind of insurance, because he is under a cap of $50,000.
Senator O'Donnell:
What about the doctor who is an administrator?
Senator Raggio:
He does not have to carry anything if he does not want to.
Senator O'Donnell:
What about the doctor that on occasion gets a phone call from his neighbor who says, “I have a headache, and I really need a good dose of aspirin?”
Senator Raggio:
That is always possible. He had better have that in mind when the neighbors call.
Let us not lose sight of this suggestion for the moment. It is a pretty good one, and it serves all the purposes. There is enough incentive in this that any doctor who has any kind of risk is going to want to carry that kind of insurance. Any doctor who does not, then, is not going to have the benefit of this maximum cap.
Senator Neal:
I do not know what a $1 million insurance policy premium would be.
Senator Raggio:
Maybe the doctors know better than we do. First of all it depends on your specialty. It depends on what field you practice in.
Dr. Khan:
No, not at all. Actually, based on what you just mentioned and without researching it, it sounds like an excellent suggestion. The premiums vary from specialty to specialty. I am a general surgeon. My premium was $28,000 a year with no previous. In obstetrics, you have heard testimony of premiums up to $108,000, $137,000, $168,000. It varies from specialty to specialty based on risk.
What you just suggested, that the doctor who is in a high-risk category should perhaps keep the $1 million coverage. Right now, there are some of us who carry $2 million and $5 million because we are very concerned about the exposure. If somebody is a clinical director, he does not need a $1 million policy. He may carry a $100,000 policy or whatever.
Senator Coffin:
It probably would be very good. We probably will not be affecting very many people.
Senator Raggio:
They will not have to do this to keep their license.
Senator Coffin:
There is also the hospital control. If you want to practice in a hospital, you are gong to have to maintain the $1 million and $3 million coverage.
Senator Raggio:
But, we heard testimony some hospitals do not require that much.
Senator Coffin:
That is fine. They need to protect themselves or at least shift some of the blame or some of the coverage to the doctor. I have a feeling it will not protect a great number of physicians. It is not going to wipe out a market.
Senator Raggio:
Is there a consensus then that instead of a requirement for licensure for these various professions involved here, we provide that in order to be covered under the bill’s maximum cap for the limit of professional liability, the doctor, dentist, etc., must maintain a policy with those limits.
Senator Rawson:
So moved.
Senator Raggio:
Discussion on the motion.
Senator Rawson:
And, to remove the other provisions from the reporting provision.
Senator Raggio:
First of all we are going to amend Assembly Bill No. 1 leaving out those provisions that deal with that reporting, and I recited the sections from 18 through 49. We are going to delete those from Assembly Bill No. 1 to conform to our version of Senate Bill No. 2. I will take a motion to that effect first.
Senator Rawson:
So moved.
Senator Raggio:
Motion by Senator Rawson. Is there any discussion?
Senator Titus:
You will not be required to buy the $1 million insurance?
Senator Raggio:
You are.
On this motion (removing sections 18 through 49 of Assembly Bill No. 1), all in favor indicate, aye; opposed, no.
The motion carried. Senators Carlson, Care and Titus voted no.
On the second issue, I will accept a motion.
Senator Rawson:
So moved.
Senator Raggio:
The motion is to delete the provision in the bill that provides for requirements for licensure to maintain these policy limits, and now, the provision will be, that, in order to qualify for the cap, to bring yourself within that limited cap, the party will have to maintain a policy with those limits―$1 million per occurrence, $3 million in the aggregate. Is there any discussion?
Senator Titus:
Now, when you say within that cap, you are talking about the cap of the policy limit, which is $1 million, or are you talking about the cap of $350,000?
Senator Raggio:
No, the $1 million.
Senator Titus:
The $1 million.
Senator Raggio:
The bill, presently, as to both structures, would limit the amount of damages in those cases that come outside the $350,000 cap to the amount of the professional liability insurance policy.
Senator Titus:
That is $1 million.
Senator Raggio:
Right.
Senator Titus:
So, if you do not want to be protected by the cap, then you do not have to buy the insurance. Is that what you are saying?
Senator Raggio:
That is correct. You won’t have the benefit of the cap unless you carry that kind of insurance.
Senator Titus:
But is not that counter-intuitive? If you do not have insurance, you are less able to pay and not having the cap creates a worse problem?
Senator Raggio:
No, the problem is that presently there is no cap, and anything above the insurance policy that a doctor is hit with in a verdict, that doctor has to pay it out of his own funds.
Senator Titus:
But, if you do not have insurance outside of the cap, that is going to put more of a burden on the doctor, and it is less likely that the patient will ever collect.
Senator Rawson:
That is true. There will be some doctors who will feel that burden, but what will happen in actuality is some doctors will take a $500,000, $1 million aggregate because they have very little exposure. They have very little risk. They feel adequately covered with that. If they are sued, their suits will probably be small enough to be covered by that coverage. If they are wrong in their guess on that, then yes, their assets are at stake, and it would behoove them, if they feel any risk at all, to fit into this situation and take the $1 million, $3 million coverage.
Senator Raggio:
The doctor that does not treat patients or sits in an office is probably going to carry a very small amount.
Senator Care:
There are all manner of ways to protect your assets, even when you have been hit with a judgment.
Senator Raggio:
All in favor of this motion indicate, aye; opposed, no.
The motion carried. Senators Carlton, Care, Neal, Titus and Wiener voted no.
Unless there is some other point that needs to be raised, I would suggest we amend Assembly Bill No. 1 to conform to the Senate version, which is Senate Bill No. 2.
Senator Rawson moved to amend, and do pass as amended, Assembly Bill No. 1.
Motion carried. Senator Carlton voted no.
Senator Raggio:
Let us now address Senate Bill No. 3. It increases the amount paid by the State for group insurance for certain public employees. The State’s share of the premiums for group insurance for the state public employees is $384.50. This bill proposes to increase the State’s share to $465.78 per month. For retirees, as indicated in section 2, it goes to $263.89 a month, from $217.84. This does not require an appropriation.
What this does, in effect, is meet a problem that is of grave concern to those who are covered under the Public Employees Health Benefits Program. They are at the point where they are looking at either a reduction in benefits or a very high increase in the premium that would be paid by the employee. The Fiscal Division tells me that this will cause a premium increase that the state will, probably, be paying about 80 percent of any premium increase between now and the end of the fiscal year. The employees’ share will, probably, be about 20 percent of that so there is some increase going to the employees. However, it is a far cry from what otherwise would have been looked at as either a great reduction, or something equivalent to 100 percent of premium increase being paid by employees. It is a realistic attempt, a real attempt, to solve that problem for these employees. Many of them got some raise, and that would be taken away in the cost of increased premiums. Some of us suggested this to the Governor, and the Governor followed through with this bill.
Mr. Ghiggeri and the Fiscal Division tell me that this will cost several million dollars a month. This is a cost that will, of course, comprise part of the deficit that we are going to have to deal with next session. Of this, about 50 percent of that cost is going to come from the General Fund. The remainder will come from either the Highway Fund or those agencies that are funded by federal funding.
Senator Rawson:
I am a university employee. We are not affected.
Senator Raggio:
I think there are a lot of us on this committee who are insured under this system. Neither you nor us are going to benefit any more than anybody else in that class so I do not know if disclosure is required, but if you want to make it that is fine.
John P. Comeaux (Director, Department of Administration):
You pretty much explained the purpose of the bill. The change in the State’s contribution will generate slightly over $12 million for the benefit program over the 6 months from January 1, 2003, to June 30, 2003. It will cost a couple of million dollars a month. Roughly half of that, we estimate between 45 and 50 percent of it, will be General Fund. The cost to the General Fund is going to be about $6 million over that period of time.
The benefit program, basically, will have exhausted their reserves by the end of this calendar year so something has to be done. If this is not done, as the Chairman indicated, the only other place the program can go would be to the participants. If I remember correctly, the increase in employees’ premiums necessary to generate that same amount of revenue would be approximately 135 percent, which would not be good.
Senator Amodei:
You indicated this would fund about $12 million, $2 million a month, for the State’s portion. What portion, I believe the Chairman said an additional 20 percent, would be passed onto the employees? How much are we asking from them? Do we have an average amount per month for increase in the premiums that would be passed along to an employee or a retiree?
Mr. Comeaux:
The total generated from the participants, I believe, is about $3 million. It would be a total of $15 million from both sources over those 6 months. Leslie Johnstone would have to answer the question about average increases.
Leslie A. Johnstone (Accounting Officer, Public Employees’ Benefits Program):
Our PEBP (Public Employees’ Benefits Program) board is meeting next week and those rate decisions will be made at that point. Roughly, it averages overall to about a 21 percent increase to the participants on a composite level.
Senator Amodei:
If I am correct, what is before us now is an authorization for a 21 percent increase in the premuim benefits for members or retirees in the State plan.
Ms. Johnstone:
Correct, with equal sharing between the State and the participant that we have had historically.
Senator Coffin:
I will disclose that, like Senator Rawson, my wife is an employee of the university system, and I am carried as one of the dependents on the coverage so I suppose I will benefit in some way. I am not sure how it is going to be spread out, whether some of this will be used at all for the dependents or if it is just for the individual employees.
Ms. Johnstone:
This decision will be made, next week, by the PEBP board.
Senator Coffin:
So, we really do not know.
The second question I have, which is related to this is we under-budgeted and then we had the recession of 9-11. We were in trouble. We do not know the results of all of this yet. Perry, you need to help us. We need to know how much money we have, how much this is going to increase our hole in the budget, and when are we going to get the list of cuts, freezes or changes from you that are going to occur in this fiscal year. I am speaking as a member of the Finance Committee, but we have been looking for that information for a long time. It is important to know that we have got the money for this.
Mr. Comeaux:
I can tell you that, based on the Budget Office estimates of our revenue, the situation has remained essentially unchanged since the last time I reported to you. Basically, for fiscal 2003, we estimate that we are going to have about a $165 million problem. This will add about $6 million to that, so it really does not make much of a difference. The Governor has had before him for some months now a plan to deal with this. He has been waiting on several things to put that plan into action. He has been waiting to get a good look at what the reversions are going to be for fiscal 2002. We basically have that now. My office received estimates from the agencies that should be very close, since we will be closing the books within about 3 weeks as of last Friday. We are compiling those now so we will be able to give the Governor that piece of information, which is an important piece that he was missing. We also now have 12-months’ worth of collections on gaming and know what our gaming collections are for fiscal 2002. We are one month shy of a full year on sales tax. But, we have enough to look at our revenue estimates to see if we need to revise those. I do not think we will need to revise them.
Senator Raggio:
September 11, 2002, we are having an Interim Finance Committee meeting. Will we have better information at that time?
Mr. Comeaux:
We will, Mr. Chairman.
Senator O'Connell:
I would move to do pass Senate Bill No. 3.
Senator Raggio:
I will accept the motion to recommend a do pass on Senate Bill No. 3. Is there any discussion?
Senator Milburn:
I wanted to disclose that I am a retired PERS employee, and I have been informed that this will not preclude me from voting because I will not be treated any differently from any other employee.
Senator Raggio:
I think the Chair has indicated that, for the record, all those members who, maybe all of us, are covered under the Public Employees’ Benefits Plan, and the opinion I received was as members it does not preclude us from voting. Is that correct, Ms. Needham?
Ms. Needham:
Yes, Mr. Chairman.
Senator Raggio:
Any further discussion?
Senator Amodei:
Am I correct in my belief that at the September 11, 2002, IFC meeting it would be appropriate to discuss the $3 million figure that is being asked from the state employees?
Senator Raggio:
I did not hear that.
Senator Amodei:
Mr. Comeaux’s staff have indicated that if we pass this, the State will contribute $12 million in funds for the increase and $3 million will go to policy holders, which amounts to a 21 percent increase. In view of your statement, is this something that could be discussed further at IFC?
Senator Raggio:
I was talking about the status of the deficit and the Governor’s plan, if any, to make cuts in the budget and so forth.
Senator Amodei:
I understand that. My question is whether the September 11 IFC meeting is a more appropriate venue to discuss the State coming up with the other $3 million so the employees do not incur a 20 percent increase in premiums as a result of the passage of this bill. Would that be a more appropriate forum to discuss this?
Senator Raggio:
I do not think that there is going to be any opportunity to change this at the IFC meeting.
Senator Amodei:
I move to amend this measure so that the State picks up the entire cost, including the $3 million that is going to be incurred by the employees so that there is no increase in the cost presently being paid by state employees who have, just speaking off the top of my head, experienced increased costs in their health care premiums which I believe do not rival those of medical malpractice folks in this State, but approach that.
Senator Raggio:
If this is the State’s share, what is the expected, additional amount per month an employee would paid? The State is picking up about 80 percent of the increase and 20 percent would be paid by employees. What does that mean in dollars?
Mr. Comeaux:
Mr. Chairman, the total for that 6-month period of time that would come from the participants would be $3 million. What would the average amount be to each participant, I am not certain. The total would be $3 million paid by the employees and $12 million from the State for a total of $15 million.
Senator Raggio:
Yes, but in an individual case, for example, the State’s share goes up from $384.60 to $465.78. Is that correct? And if I am calculating it right that is an increase of about $80 per employee. If the State’s share of that $80 is 80 percent, that means the State is picking up about $64 a month and the employee is picking up about $16 a month. Am I wrong?
Mr. Comeaux:
The $80 is what the State is picking up. What the employee picks up would be in addition to that.
Senator Raggio:
The employee would be picking up about $20 a month.
Mr. Comeaux:
Yes, sir.
Senator Raggio:
Well, it was contemplated that the employee was going to have to pick up about $100 a month or have some drastic cut in benefits.
Ms. Johnstone:
I just want to clarify that that is very much an average. The change will vary dramatically depending on whether it is family coverage or participant only.
Mr. Comeaux:
What is being proposed here would maintain the existing funding scheme. Right now the State funds about 80 percent of the total cost of this program, the participants fund the other 20 percent. This would maintain that same arrangement.
Senator Raggio:
I am going to suggest, and I understand where you are coming from, but I think this is a good solution the Governor has proposed, and it is maintaining that ratio without having to have the employees, as was anticipated, pick up all of the cost.
Senator Amodei:
I understand that. The basis for the motion was, or maybe I misunderstood Leslie, but when I said what is this going to do there, an indication, on the record, that there was going to be a 21 percent increase in the cost for the participants. Now, either there is a 21 percent increase, which is not $16 a month, which is not offensive to me, or it is more than that. I am struggling with a dearth of information as to what the impact on the individual employee’s policy is going to be as a result of this.
Ms. Johnstone:
That 21 percent is very much an average. Consider that the participant does not currently contribute anything toward their premium, and they represent about 60 percent of the population. That 20 percent is on the total participant premiums that are charged now. It will vary dramatically between tiers no matter what the decisions are by the board.
Senator Coffin:
It is a tough deal. The Governor only has so much money to work with. I have been privy to a couple of the cuts and freezes, simply, because I have been inquiring about it. For example, the reason I cannot support the amendment is because number one, we really do not know all the people that are going to be cut and/or frozen in their present appropriations by the Administration. I know one or two of them, and if we go through with this amendment―in fact doing this bill already makes it even tougher because the Governor is going to have to cut more somewhere else. But, take Opportunity Village in Las Vegas, effective October 1, 2002, they are not going to get, in the present circumstances, the 1.7 percent increase that they were appropriated. Washoe Association of Retarded Citizens is not going to get its 1.7 percent increase that was appropriated. They have already gotten letters on this, and I have copies of them. These things are leaking out as they go, and so for that reason those cuts, in essence, those freezes may have to be increased. Not only for those agencies but for other agencies if we increase this appropriation even further, so I cannot support the amendment. I want to do the best for our employees. This is a big deal for them. I will support the bill, but I cannot support the amendment. Please understand it is not for a lack of a reason. There are hundreds of reasons out there. They are going to be revealed to us. The Governor has a tough job. He is the guy in the seat. He did not expand the call to include my request. I asked him about opening it up so he could spend in many other areas. We argued and discussed this a lot over a week and a half, and I said, “Okay, you are the boss. I will give you this. I will probably lose the vote anyway so it is your business.” Having said that to him, I have got to support him on this. Therefore, I am going to oppose the motion.
Senator Raggio:
I will likewise oppose the amendment because I feel we have done a very good thing here to bring this out at this Special Session. I know that everyone I have talked to in the public employee sector is very happy that we are doing what is in this bill. I do not want to add any more than is necessary to the deficit for the very reasons that Senator Coffin stated.
The motion is to adopt an amendment that would augment the amount in the bill to require the State to pay the full share. How much would that be a month?
Mr. Comeaux:
Roughly, that would add another $20 a month to the State’s share, so it would go up to around $485 a month.
Senator Raggio:
The cost overall would be another $3 million.
All in favor of the amendment raise your hands, please. Thirteen Senators voted in favor of the motion.
Motion carried.
Senator Titus:
I realize you said that we all were able to vote but I want to also put on the record that I am just a single member participant in this. I do not have a family policy so I am not affected at all by my vote.
Senator Raggio:
The amendment is adopted by the Committee of the Whole and will be an amendment to the bill.
Are there any other amendments to the bill?
I will accept a motion to do pass the bill as amended.
Senator Jacobsen moved to amend, and do pass as amended, Senate Bill No. 3.
Motion carried.
Senator Raggio:
Is there anything else to come before the Committee of the Whole at this time?
At that point I will thank the committee again. I would like to, particularly, thank the staff who assisted this Committee of the Whole: Scott Young, Brad Wilkinson and Jan Needham as well as Brenda Erdoes and her staff for the work that was done for the Committee of the Whole.
On the motion of Senator Raggio, the committee did rise and report back to the Senate.
SENATE IN SESSION
At 6:37 p.m.
President Hunt presiding.
Quorum present.
REPORTS OF COMMITTEES
Madam President:
Your Committee of the Whole, to which were referred Senate Bill No. 3; 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.
William J. Raggio, Chairman
GENERAL FILE AND THIRD READING
Senate Bill No. 3.
Bill read third time.
The following amendment was proposed by the Committee of the Whole:
Amendment No. 5.
Amend section 1, page 2, line 4, by deleting “$465.78” and inserting “$486.10”.
Amend sec. 2, page 2, line 13, by deleting “$263.89” and inserting “$275.40”.
Senator Raggio moved the adoption of the amendment.
Amendment adopted.
Bill ordered reprinted, engrossed and to third reading.
Assembly Bill No. 1.
Bill read third time.
The following amendment was proposed by the Committee on:
Amendment No. 4.
Amend section 1, page 2, line 20, by deleting “2” and inserting “3”.
Amend section 1, page 2, line 29, after “whether” by inserting “or not”.
Amend section 1, page 2, line 44, by deleting:
“as a result” and inserting:
“, exclusive of interest computed from the date of judgment, to or for the benefit of any claimant arising out”.
Amend section 1, page 2, line 48, after “2.” by inserting:
“Except as otherwise provided in subsection 3 and NRS 41.505:
(a) A hospital other than a hospital described in paragraph (a) of subsection 1;
(b) An employee of a hospital described in paragraph (a); and
(c) A physician or dentist licensed under the provisions of chapter 630, 631 or 633 of NRS who renders care or assistance in a hospital described in paragraph (a), whether or not the care or assistance was rendered gratuitously or for a fee,
that in good faith renders care or assistance necessitated by a sudden, unexpected situation or occurrence resulting in an acute life-threatening medical condition demanding immediate medical attention, for which the patient enters the hospital through its emergency room, may not be held liable for more than $50,000 in civil damages, exclusive of interest computed from the date of judgment, to or for the benefit of any claimant arising out of any act or omission in rendering that care or assistance if the care or assistance is rendered in good faith and in a manner not amounting to gross negligence or reckless, willful or wanton conduct.
3.”.
Amend section 1, page 3, line 5, by deleting “subsection 1” and inserting:
“subsections 1 and 2”.
Amend section 1, page 3, line 9, by deleting “3.” and inserting:
“4. If:
(a) A physician or dentist provides follow-up care to a patient to whom he rendered care or assistance pursuant to subsection 1 or 2;
(b) A medical condition arises during the course of the follow-up care that is directly related to the original medical condition for which care or assistance was rendered pursuant to subsection 1 or 2; and
(c) The patient files an action for malpractice based on the medical condition that arises during the course of the follow-up care,
there is a rebuttable presumption that the medical condition was caused by the care or assistance rendered pursuant to subsection 1 or 2 and that the limitation on liability provided by subsection 1 or 2 applies with respect to the medical condition that arises during the course of the follow-up care.
5.”.
Amend section 1, page 3, line 10, after “1” by inserting “or 2”.
Amend the bill as a whole by adding a new section designated sec. 1.5, following section 1, to read as follows:
“Sec. 1.5. NRS 41.505 is hereby amended to read as follows:
41.505 1. Any physician or registered nurse who in good faith gives instruction or provides supervision to an emergency medical attendant or registered nurse, at the scene of an emergency or while transporting an ill or injured person from the scene of an emergency, is not liable for any civil damages as a result of any act or omission, not amounting to gross negligence, in giving that instruction or providing that supervision. An emergency medical attendant, registered nurse or licensed practical nurse who obeys an instruction given by a physician, registered nurse or licensed practical nurse and thereby renders emergency care, at the scene of an emergency or while transporting an ill or injured person from the scene of an emergency, is not liable for any civil damages as a result of any act or omission, not amounting to gross negligence, in rendering that emergency care.
2. Except as otherwise provided in subsection 3, any person licensed under the provisions of chapter 630, 632 or 633 of NRS and any person who holds an equivalent license issued by another state, who renders emergency care or assistance in an emergency, gratuitously and in good faith, is not liable for any civil damages as a result of any act or omission, not amounting to gross negligence, by him in rendering the emergency care or assistance or as a result of any failure to act, not amounting to gross negligence, to provide or arrange for further medical treatment for the injured or ill person. This section does not excuse a physician or nurse from liability for damages resulting from his acts or omissions which occur in a licensed medical facility relative to any person with whom there is a preexisting relationship as a patient.
3. Any person licensed under the provisions of chapter 630, 632 or 633 of NRS and any person who holds an equivalent license issued by another state who renders emergency obstetrical care or assistance to a pregnant woman during labor or the delivery of the child is not liable for any civil damages as a result of any act or omission by him in rendering that care or assistance if:
(a) The care or assistance is rendered in good faith and in a manner not amounting to gross negligence or reckless, willful or wanton conduct;
(b) The person has not previously provided prenatal or obstetrical care to the woman; and
(c) The damages are reasonably related to or primarily caused by a lack of prenatal care received by the woman.
A licensed medical facility in which such care or assistance is rendered is not liable for any civil damages as a result of any act or omission by the person in rendering that care or assistance if that person is not liable for any civil damages pursuant to this subsection and the actions of the medical facility relating to the rendering of that care or assistance do not amount to gross negligence or reckless, willful or wanton conduct.
4. Any person licensed under the provisions of chapter 630, 632 or 633 of NRS and any person who holds an equivalent license issued by another state who:
(a) Is retired or otherwise does not practice on a full-time basis; and
(b) Gratuitously and in good faith, renders medical care within the scope of his license to an indigent person,
is not liable for any civil damages as a result of any act or omission by him, not amounting to gross negligence or reckless, willful or wanton conduct, in rendering that care.
5. Any person licensed to practice medicine under the provisions of chapter 630 or 633 of NRS or licensed to practice dentistry under the provisions of chapter 631 of NRS who renders care or assistance to a patient at a health care facility of a governmental entity or a nonprofit organization is not liable for any civil damages as a result of any act or omission by him in rendering that care or assistance if the care or assistance is rendered gratuitously, in good faith and in a manner not amounting to gross negligence or reckless, willful or wanton conduct.
6. As used in this section:
(a) “Emergency medical attendant” means a person licensed as an attendant or certified as an emergency medical technician, intermediate emergency medical technician or advanced emergency medical technician pursuant to chapter 450B of NRS.
(b) “Gratuitously” has the meaning ascribed to it in NRS 41.500.
(c) “Health care facility” has the meaning ascribed to it in NRS 449.800.”.
Amend sec. 5, page 3, line 28, after “2” by inserting “or 4”.
Amend sec. 5, page 3, by deleting lines 36 through 42.
Amend sec. 5, page 3, line 43, by deleting “(g)” and inserting “(a)”.
Amend sec. 5, page 3, line 45, by deleting “(h)” and inserting “(b)”.
Amend sec. 5, page 4, line 1, by deleting “In” and inserting:
“Except as otherwise provided in subsection 4, in”.
Amend sec. 5, page 4, line 11, after “4.” by inserting:
“The limitations set forth in subsections 1 and 3 do not apply in an action for damages for medical malpractice or dental malpractice unless the defendant was covered by professional liability insurance at the time the injury occurred in an amount of:
(a) Not less than $1,000,000 per occurrence; and
(b) Not less than $3,000,000 in the aggregate.
5.”.
Amend sec. 5, page 4, by deleting lines 13 through 28 and inserting:
“6 . For the purposes of this section, “gross malpractice” means failure to exercise the required degree of care, skill or knowledge that amounts to:
(a) A conscious indifference to the consequences which may result from the gross malpractice; and
(b) A disregard for and indifference to the safety and welfare of the patient.”.
Amend sec. 6, page 4, line 29, before “In” by inserting “1.”.
Amend sec. 6, page 4, between lines 32 and 33, by inserting:
“2. As used in this section, “medical malpractice” means the failure of a physician, hospital, employee of a hospital, certified nurse midwife or certified registered nurse anesthetist in rendering services to use the reasonable care, skill or knowledge ordinarily used under similar circumstances.”.
Amend sec. 8, page 5, line 2, after “practices” by inserting:
“or has practiced”.
Amend sec. 9, page 5, by deleting lines 5 and 6 and inserting:
“malpractice, each plaintiff, each defendant, the representative of each defendant’s insurer and their respective attorneys shall attend and”.
Amend sec. 9, page 5, line 16, after “party” by inserting:
“, his insurer”.
Amend sec. 10, page 5, lines 21 and 22, by deleting “and 41A.009” and inserting:
“, 41A.009 and 41A.013”.
Amend sec. 12, page 7, line 14, after “practices” by inserting:
“or has practiced”.
Amend the bill as a whole by deleting sections 18 through 50 and inserting:
“Secs. 18-50. (Deleted by amendment.)”.
Amend the bill as a whole by deleting sec. 57 and inserting:
“Sec. 57. (Deleted by amendment.)”.
Amend sec. 58, page 23, line 14, by deleting:
“59 to 64, inclusive,” and inserting:
“62, 63 and 64”.
Amend the bill as a whole by deleting sections 59 through 61 and inserting:
“Secs. 59-61. (Deleted by amendment.)”.
Amend sec. 69, page 27, line 40, by deleting “41A.013,”.
Amend sec. 72, page 28, line 2, by deleting “41A.013” and inserting “41A.016”.
Amend sec. 72, page 28, line 24, by deleting “41A.013” and inserting “41A.016”.
Amend the bill as a whole by deleting sec. 74 and inserting:
“Sec. 74. (Deleted by amendment.)”.
Amend sec. 75, page 29, by deleting line 9 and inserting:
“Sec. 75. This section and sections 1 to 17, inclusive, 51 to 58,”.
Amend sec. 75, page 29, line 10, by deleting “61” and inserting “62”.
Amend sec. 75, page 29, by deleting lines 12 and 13.
Amend the leadlines of repealed sections by deleting the leadline of NRS 41A.013.
Amend the preamble of the bill, page 2, by deleting lines 1 through 13 and inserting:
“Whereas, It is recognized that patients who have been injured by medical malpractice must be afforded appropriate access to legal remedies for their injuries and that judicial discretion to render decisions in malpractice actions involving exceptional circumstances must be preserved; now, therefore,”.
Amend the preamble of the bill, page 2, by deleting lines 1 through 13.
Senator Raggio moved the adoption of the amendment.
Amendment adopted.
Bill ordered reprinted, re-engrossed and to third reading.
Madam President announced that if there were no objections, the Senate would recess subject to the call of the Chair.
Senate in recess at 6:42 p.m.
SENATE IN SESSION
At 6:57 p.m.
President Hunt presiding.
Quorum present.
GENERAL FILE AND THIRD READING
Senate Bill No. 3.
Bill read third time.
Roll call on Senate Bill No. 3:
Yeas—21.
Nays—None.
Senate Bill No. 3 having received a constitutional majority, Madam President declared it passed, as amended.
Bill ordered transmitted to the Assembly.
Assembly Bill No. 1.
Bill read third time.
Roll call on Assembly Bill No. 1:
Yeas—21.
Nays—None.
Assembly Bill No. 1 having received a constitutional majority, Madam President declared it passed, as amended.
Bill ordered transmitted to the Assembly.
Madam President announced that if there were no objections, the Senate would recess subject to the call of the Chair.
Senate in recess at 7:01 p.m.
SENATE IN SESSION
At 8:51 p.m.
President Hunt presiding.
Quorum present.
MESSAGES FROM THE ASSEMBLY
Assembly Chamber, Carson City, July 31, 2002
To the Honorable the Senate:
I have the honor to inform your honorable body that the Assembly on this day respectfully refused to concur in the Senate Amendment No. 4 to Assembly Bill No. 1.
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Patricia R. Williams |
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Assistant Chief Clerk of the Assembly |
UNFINISHED BUSINESS
Recede From Senate Amendments
Senator Raggio moved that the Senate do not recede from its action on Assembly Bill No. 1, that a conference be requested, and that Madam President appoint a first Conference Committee consisting of three members to meet with a like committee of the Assembly.
Remarks by Senator Raggio.
Motion carried.
Bill ordered transmitted to the Assembly.
Appointment of Conference Committees
Madam President appointed Senators Raggio, Rawson and Schneider as a first Conference Committee to meet with a like committee of the Assembly for the further consideration of Assembly Bill No. 1.
Madam President announced that if there were no objections, the Senate would recess subject to the call of the Chair.
Senate in recess at 8:52 p.m.
SENATE IN SESSION
At 4:13: a.m.
President Hunt presiding.
Quorum present.
MESSAGES FROM THE ASSEMBLY
Assembly Chamber, Carson City, July 31, 2002
To the Honorable the Senate:
I have the honor to inform your honorable body that the Assembly on this day appointed Assemblymen Perkins, Buckley and Brown as a first Conference Committee concerning Assembly Bill No. 1.
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Patricia R. Williams |
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Assistant Chief Clerk of the Assembly |
Assembly Chamber, Carson City, August 1, 2002
To the Honorable the Senate:
I have the honor to inform your honorable body that the Assembly amended, and on this day passed, as amended, Senate Bill No. 3, Amendment No. 7, and respectfully requests your honorable body to concur in said amendment.
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Patricia R. Williams |
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Assistant Chief Clerk of the Assembly |
Assembly Chamber, Carson City, August 1, 2002
To the Honorable the Senate:
I have the honor to inform your honorable body that the Assembly on this day adopted the report of the first Conference Committee concerning Assembly Bill No. 1.
UNFINISHED BUSINESS
Consideration of Assembly amendments
Senate Bill No. 3.
The following Assembly Amendment was read:
Amendment No. 7.
Amend section 1, page 2, line 4, by deleting “$486.10” and inserting “$465.78”.
Amend sec. 2, page 2, line 13, by deleting “$275.40” and inserting “$263.89”.
Amend the bill as a whole by renumbering sec. 3 as sec. 5 and adding new sections designated sections 3 and 4, following sec. 2, to read as follows:
“Sec. 3. The board of the public employees’ benefits program shall ensure that:
1. No state employee who is a member of the program is required to pay, for the fiscal year 2002-2003, any part of the cost of the premiums or contributions for the program which are attributable to the health benefits coverage of the employee by the program. The provisions of this subsection do not prohibit requiring a state employee to pay the cost of the premiums or contributions attributable to the coverage of the state employee’s dependents by the program.
2. Any money resulting from the amendatory provisions of section 1 of this act that exceeds the amount necessary to carry out the provisions of subsection 1 is applied to reserves or used to maintain current health benefits.
Sec. 4. The board of the public employees’ benefits program shall issue a request for information or a request for proposals to determine whether privatization of the public employees’ benefits program is economically feasible. The board of the public employees’ benefits program shall require that any information or proposals returned in response to a request issued pursuant to this section are returned to the board in sufficient time to allow the board to use such information or proposals when making any decisions regarding any plan for benefits that will begin on or after July 1, 2003.”.
Amend sec. 3, page 2, line 14, by deleting:
“January 1, 2003.” and inserting:
“October 1, 2002.”.
Amend the title of the bill, third line, after the semicolon, by inserting:
“requiring the board of the public employees’ benefits program to issue a request for information or proposals concerning privatization of the program;”.
Senator Amodei moved that the Senate concur in the Assembly amendment to Senate Bill No. 3.
Motion carried by a constitutional majority.
Reports of Conference Committees
Madam President:
The first Conference Committee concerning Assembly Bill No. 1, consisting of the undersigned members, has met, and reports that:
It has agreed to recommend that the amendment of the Senate be concurred in.
It has agreed to recommend that the bill be further amended as set forth in Conference Amendment No. 1, which is attached to and hereby made a part of this report.
Conference Amendment.
Amend section 1, page 2, line 12, by deleting “3” and inserting “2”.
Amend section 1, page 2, by deleting line 17 and inserting:
“(b) A hospital other than a hospital described in paragraph (a);
(c) An employee of a hospital described in paragraph (a) or (b) who renders”.
Amend section 1, page 2, line 19, by deleting “(c)” and inserting “(d)”.
Amend section 1, page 2, line 21, by deleting “(a),” and inserting:
“(a) or (b),”.
Amend section 1, page 2, line 23, by deleting “(d)” and inserting “(e)”.
Amend section 1, pages 2 and 3, by deleting lines 32 through 49 on page 2 and lines 1 through 4 on page 3, and inserting:
“that in good faith renders care or assistance necessitated by a traumatic injury demanding immediate medical attention, for which the patient enters the hospital through its emergency room or trauma center, may not be held”.
Amend section 1, page 3, line 10, by deleting “3.” and inserting “2.”.
Amend section 1, page 3, line 16, by deleting:
“subsections 1 and 2” and inserting “subsection 1”.
Amend section 1, page 3, line 19, by deleting “medical emergency.” and inserting “traumatic injury.”.
Amend section 1, page 3, line 20, by deleting “4.” and inserting “3.”.
Amend section 1, page 3, line 22, by deleting:
“1 or 2;” and inserting “1;”.
Amend section 1, page 3, line 24, by deleting “medical condition” and inserting “traumatic injury”.
Amend section 1, page 3, line 25, by deleting:
“1 or 2;” and inserting “1;”.
Amend section 1, page 3, by deleting lines 28 and 29 and inserting:
“there is a rebuttable presumption that the medical condition was the result of the original traumatic injury and that”.
Amend section 1, page 3, line 30, by deleting “or 2”.
Amend section 1, page 3, by deleting line 33 and inserting:
“4. For the purposes of this section:
(a) “Reckless, willful or wanton”.
Amend section 1, page 3, line 34, by deleting “or 2”.
Amend section 1, page 3, line 39, by deleting “(a)” and inserting “(1)”.
Amend section 1, page 3, line 40, by deleting “(b)” and inserting “(2)”.
Amend section 1, page 3, line 41, by deleting “(c)” and inserting “(3)”.
Amend section 1, page 3, line 42, by deleting “(d)” and inserting “(4)”.
Amend section 1, page 3, line 44, by deleting “(e)” and inserting “(5)”.
Amend section 1, page 3, between lines 44 and 45 by inserting:
“(b) “Traumatic injury” means any acute injury which, according to standardized criteria for triage in the field, involves a significant risk of death or the precipitation of complications or disabilities.”.
Amend sec. 5, page 5, line 24, by deleting “or 4”.
Amend sec. 5, page 6, by deleting line 1 and inserting:
“4. The limitation set forth in subsection 3 does not apply in an”.
Amend sec. 5, page 6, by deleting line 4 and inserting:
“of the occurrence of the alleged malpractice and on the date on which the insurer receives notice of the claim, in an amount of:”.
Amend sec. 9, page 6, by deleting lines 46 and 47 and inserting:
“malpractice, all the parties to the action, the insurers of the respective parties and the attorneys of the respective parties shall attend and”.
Amend the bill as a whole, page 12, by deleting line 29 and inserting:
“Sec. 18. Chapter 439 of NRS is hereby amended by adding thereto the provisions set forth as sections 19 to 39, inclusive, of this act.
Sec. 19. As used in sections 19 to 39, inclusive, of this act, unless the context otherwise requires, the words and terms defined in sections 20 to 25, inclusive, of this act have the meanings ascribed to them in those sections.
Sec. 20. “Medical facility” means:
1. A hospital, as that term is defined in NRS 449.012 and 449.0151;
2. An obstetric center, as that term is defined in NRS 449.0151 and 449.0155;
3. A surgical center for ambulatory patients, as that term is defined in NRS 449.0151 and 449.019; and
4. An independent center for emergency medical care, as that term is defined NRS 449.013 and 449.0151.
Sec. 21. “Patient” means a person who:
1. Is admitted to a medical facility for the purpose of receiving treatment;
2. Resides in a medical facility; or
3. Receives treatment from a provider of health care.
Sec. 22. “Patient safety officer” means a person who is designated as such by a medical facility pursuant to section 35 of this act.
Sec. 23. “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. 24. “Repository” means the repository for health care quality assurance created by section 31 of this act.
Sec. 25. “Sentinel event” means an unexpected occurrence involving death or serious physical or psychological injury or the risk thereof, including, without limitation, any process variation for which a recurrence would carry a significant chance of a serious adverse outcome. The term includes loss of limb or function.
Secs. 26 and 27. (Deleted by amendment.)
Sec. 28. 1. Except as otherwise provided in subsection 2:
(a) A person who is employed by a medical facility shall, within 24 hours after becoming aware of a sentinel event that occurred at the medical facility, notify the patient safety officer of the facility of the sentinel event; and
(b) The patient safety officer shall, within 13 days after receiving notification pursuant to paragraph (a), report the date, the time and a brief description of the sentinel event to:
(1) The health division; and
(2) The representative designated pursuant to section 32 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 a sentinel event that occurred at the medical facility, the patient safety officer shall, within 14 days after discovering or becoming aware of the sentinel event, report the date, time and brief description of the sentinel event to:
(a) The health division; and
(b) The representative designated pursuant to section 32 of this act, if that person is different from the patient safety officer.
3. The administrator shall prescribe the manner in which reports of sentinel events must be made pursuant to this section.
Sec. 29. 1. The health division shall, to the extent of legislative appropriation and authorization:
(a) Collect and maintain reports received pursuant to section 28 of this act; and
(b) Ensure that such reports, and any additional documents created from such reports, are protected adequately from fire, theft, loss, destruction and other hazards and from unauthorized access.
2. Reports received pursuant to section 28 of this act are confidential, not subject to subpoena or discovery and not subject to inspection by the general public.
Sec. 30. 1. The health division shall, to the extent of legislative appropriation and authorization, contract with a quality improvement organization, as defined in 42 C.F.R. § 400.200, to analyze and report trends regarding sentinel events.
2. When the health division receives notice from a medical facility that the medical facility has taken corrective action to remedy the causes or contributing factors, or both, of a sentinel event, the health division shall:
(a) Make a record of the information;
(b) Ensure that the information is aggregated so as not to reveal the identity of a specific person or medical facility; and
(c) Transmit the information to a quality improvement organization.
3. A quality improvement organization to whom information is transmitted pursuant to subsection 2 shall, at least quarterly, report its findings regarding the analysis of aggregated trends of sentinel events to the repository for health care quality assurance.
Sec. 31. 1. The repository for health care quality assurance is hereby created within the health division.
2. The repository shall, to the extent of legislative appropriation and authorization, function as a clearinghouse of information relating to aggregated trends of sentinel events.
Sec. 32. 1. Each medical facility that is located within this state shall designate a representative for the notification of patients who have been involved in sentinel 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 sentinel event that occurred at the medical facility, provide notice of that fact to each patient who was involved in that sentinel 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.
Sec. 33. Any report, document and any other information compiled or disseminated pursuant to the provisions of sections 19 to 39, inclusive, of this act is not admissible in evidence in any administrative or legal proceeding conducted in this state.
Sec. 34. 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.
2. A medical facility shall submit its patient safety plan to the governing board of the medical facility for approval in accordance with the requirements of this section.
3. 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 compliance with its patient safety plan.
Sec. 35. 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) Supervise the reporting of all sentinel events alleged to have occurred at the medical facility, including, without limitation, performing the duties required pursuant to section 28 of this act.
(c) Take such action as he determines to be necessary to ensure the safety of patients as a result of an investigation of any sentinel 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. 36. 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 treat patients at the medical facility, including, without limitation, at least one member of the medical, nursing and pharmaceutical staff of the medical facility.
(3) One member of the executive or governing body of the medical facility.
(b) A patient safety committee shall meet at least once each month.
3. The administrator shall adopt regulations prescribing the composition and frequency of meetings 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 35 of this act.
(b) Evaluate actions of the patient safety officer in connection with all reports of sentinel 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.
(d) Make recommendations to the executive or governing body of the medical facility to reduce the number and severity of sentinel 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 sentinel events that occurred at the medical facility during the preceding calendar quarter; and
(2) Any recommendations to reduce the number and severity of sentinel events that occur at the medical facility.
5. The proceedings and records of a patient safety committee are subject to the same privilege and protection from discovery as the proceedings and records described in NRS 49.265.
Sec. 37. 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 a sentinel event to a governmental entity with jurisdiction or another appropriate authority;
2. Notifies a governmental entity with jurisdiction or another appropriate authority of a sentinel event;
3. Transmits information regarding a sentinel event to a governmental entity with jurisdiction or another appropriate authority;
4. Compiles, prepares or disseminates information regarding a sentinel event to a governmental entity with jurisdiction or another appropriate authority; or
5. Performs any other act authorized pursuant to sections 19 to 39, inclusive, of this act.
Sec. 38. If a medical facility:
1. Commits a violation of any provision of sections 19 to 39, inclusive, of this act or for any violation for which an administrative sanction pursuant to NRS 449.163 would otherwise be applicable; and
2. Of its own volition, reports the violation to the administrator,
such a violation must not be used as the basis for imposing an administrative sanction pursuant to NRS 449.163.
Sec. 39. The administrator shall adopt such regulations as the administrator determines to be necessary or advisable to carry out the provisions of sections 19 to 39, inclusive, of this act.
Secs. 40-43. (Deleted by amendment.)
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 unfairly 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 a sentinel event to the health division pursuant to section 28 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 unfairly against an employee of the medical facility because the employee has taken 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”:
(1) Includes, without limitation, the following action if such action is taken solely because the employee took an action described in subsection 1:
(I) Frequent or undesirable changes in the location where the employee works;
(II) Frequent or undesirable transfers or reassignments;
(III) The issuance of letters of reprimand, letters of admonition or evaluations of poor performance;
(IV) A demotion;
(V) A reduction in pay;
(VI) The denial of a promotion;
(VII) A suspension;
(VIII) A dismissal;
(IX) A transfer; or
(X) Frequent changes in working hours or workdays.
(2) Does not include action described in sub-subparagraphs (I) to (X), inclusive, of paragraph (1) if the action is taken in the normal course of employment or as a form of discipline.
Sec. 46. 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 for such relief as may be appropriate under the law.
Sec. 47. Chapter 630 of NRS is hereby amended by adding thereto the provisions set forth as sections 48 and 49 of this act.
Sec. 48. 1. A physician or any agent or employee thereof shall not retaliate or discriminate unfairly 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 a sentinel event to the health division pursuant to section 28 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 unfairly against an employee of the physician because the employee has taken 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”:
(a) Includes, without limitation, the following action if such action is taken solely because the employee took an action described in subsection 1:
(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.
(b) Does not include action described in subparagraphs (1) to (10), inclusive, of paragraph (a) if the action is taken in the normal course of employment or as a form of discipline.
Sec. 49. 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 for such relief as may be appropriate.
Sec. 50. (Deleted by amendment.)”.
Amend sec. 55, page 15, by deleting lines 12 through 14.
Amend sec. 55, page 15, line 15, by deleting “5.” and inserting “4.”.
Amend the bill as a whole[,] page 15, by deleting line 42 and inserting:
“Sec. 59. 1. An osteopathic physician or any agent or employee thereof shall not retaliate or discriminate unfairly 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 a sentinel event to the health division pursuant to section 28 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 unfairly against an employee of the osteopathic physician because the employee has taken 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”:
(a) Includes, without limitation, the following action if such action is taken solely because the employee took an action described in subsection 1:
(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.
(b) Does not include action described in subparagraphs (1) to (10), inclusive, of paragraph (a) if the action is taken in the normal course of employment or as a form of discipline.
Sec. 60. 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 for such relief as may be appropriate under the law.
Sec. 61. (Deleted by amendment.)”.
Amend sec. 64, page 17, by deleting lines 9 through 11.
Amend sec. 64, page 17, line 12, by deleting “5.” and inserting “4.”.
Amend the bill as a whole by adding a new section designated sec. 72.5, following sec. 72, to read as follows:
“Sec. 72.5. 1. For the period beginning on October 1, 2002, and ending on October 1, 2005, the division shall monitor and maintain records of all:
(a) Premiums charged for policies of insurance covering the liability of a practitioner licensed to practice medicine, dentistry or osteopathic medicine pursuant to chapter 630, 631 or 633 of NRS for a breach of his professional duty toward a patient; and
(b) Jury verdicts and settlements of cases and claims relating to the liability of a practitioner licensed to practice medicine, dentistry or osteopathic medicine pursuant to chapter 630, 631 or 633 of NRS for a breach of his professional duty toward a patient, including, without limitation:
(1) The amount of each jury verdict or settlement;
(2) For each case or claim, whether any limitation on the amount of any damages applied; and
(3) For each case or claim, the effect of any applicable limitation on the amount of any damages.
2. Not later than November 1, 2005, the division shall deliver to the commissioner for review a report that must include, without limitation:
(a) A summary of the information obtained pursuant to subsection 1; and
(b) Analyses of any changes or trends in the amounts of or volumes of premiums or jury verdicts and settlements as evidenced by the information obtained pursuant to subsection 1.
3. Not later than December 1, 2005, the commissioner shall submit to the director of the legislative counsel bureau for transmission to the legislative commission and the legislature a report that must include, without limitation:
(a) The findings of the division delivered to the commissioner pursuant to this section; and
(b) Any recommendations of the commissioner for legislation based upon the findings of the division, including, without limitation, any recommendations for annual adjustments for inflation for any limitations on damages applicable to cases and claims relating to the liability of a practitioner licensed to practice medicine, dentistry or osteopathic medicine pursuant to chapter 630, 631 or 633 of NRS for a breach of his professional duty toward a patient.
4. As used in this section:
(a) “Commissioner” has the meaning ascribed to it in NRS 679A.060.
(b) “Division” has the meaning ascribed to it in NRS 679A.085.”.
Amend sec. 75, page 19, line 47, by deleting “This” and inserting “1. This”.
Amend sec. 75, page 19, after line 49, by inserting:
“2. Sections 18 to 39, inclusive, 44 to 49, inclusive, 59 and 60 of this act become effective on July 1, 2003.”.
Amend the title of the bill, sixteenth line, after “negligence;” by inserting:
“requiring the commissioner of insurance to report to the legislative commission and the legislature regarding certain premiums for insurance and certain jury verdicts and settlements;”.
Amend the bill as a whole by adding the following senators as primary joint sponsors:
Senators Raggio and Titus.
Amend the bill as a whole by adding the following senators as nonprimary joint sponsors:
Senators Amodei, Care, Carlton, Coffin, Jacobsen, Mathews, McGinness, Milburn, Neal, O'Connell, O’Donnell, Paulk, Rawson, Rhoads, Schneider, Shaffer, Townsend, Washington and Wiener.
William J. Raggio Richard D. Perkins
Raymond D. Rawson Barbara E. Buckley
Michael Schneider David Brown
Senate Conference Committee Assembly Conference Committee
Senator Raggio moved that the Senate adopt the report of the first Conference Committee concerning Assembly Bill No. 1.
Remarks by Senator Raggio.
Motion carried by a constitutional majority.
Madam President appointed Senators Jacobsen, Paulk and Carlton, as a committee to wait upon the Assembly and to inform that honorable body that the Senate is ready to adjourn sine die.
Madam President appointed Senators Milburn, Amodei and Care as a committee to wait upon His Excellency, Kenny Guinn, Governor of the State of Nevada, and to inform him that the Senate is ready to adjourn sine die.
A committee from the Assembly, consisting of Assemblymen Williams, Leslie and Carpenter, appeared before the bar of the Senate and announced that the Assembly is ready to adjourn sine die.
Senator Jacobsen reported that his committee had informed the Assembly that the Senate is ready to adjourn sine die.
Senator Milburn reported that her committee had informed the Governor that the Senate is ready to adjourn sine die.
Senator William J. Raggio moved that the Eighteenth Special Session of the Senate of the Legislature of the State of Nevada adjourn sine die.
Motion carried
Senate adjourned sine die at 4:24 a.m.
Approved: Lorraine T. Hunt
President of the Senate
Attest: Claire J. Clift
Secretary of the Senate