MINUTES OF THE meeting

of the

ASSEMBLY Committee on Medical Malpractice ISSUES

 

Eighteenth Special Session

July 30, 2002

 

 

The Assembly Committee on Medical Malpractice Issues was called to order at 9:53 a.m., on Tuesday, July 30, 2002.  Chairman Bernie Anderson presided in Room 4100 of the Legislative Building, Carson City, Nevada.  The meeting was videoconferenced to Room 4401 of the Grant Sawyer Office Building in Las Vegas, Nevada.  Exhibit A is the Agenda.  Exhibit B is the Guest List.  All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

 

 

COMMITTEE MEMBERS PRESENT:

 

Mr.    Bernie Anderson, Chairman

Ms.   Barbara Buckley, Vice Chairman

Mr.    Bob Beers

Mr.    David Brown

Mrs.  Barbara Cegavske

Mr.    Joseph Dini, Jr.

Mr.    Lynn Hettrick

Mrs.  Ellen Koivisto

Ms.   Sheila Leslie

Mr.    Mark Manendo

Mr.    John Marvel

Mr.    John Oceguera

Ms.   Genie Ohrenschall

Ms.   Bonnie Parnell

Mr.    Richard D. Perkins

 

 

GUEST LEGISLATORS PRESENT:

 

Assemblywoman Sharron Angle, Assembly District 29

Assemblyman Doug Bache, Assembly District 11

Assemblywoman Merle Berman, Assembly District 2

Assemblyman Greg Brower, Assembly District 37

Assemblyman John Carpenter, Assembly District 33

Assemblywoman Vonne Chowning, Assembly District 28

Assemblyman Jerry Clayborn, Assembly District 19

Assemblyman Tom Collins, Assembly District 1

Assemblywoman Marcia de Braga, Assembly District 35

Assemblywoman Vivian Freeman, Assembly District 24

Assemblywoman Chris Giunchigliani, Assembly District 9

Assemblyman David Goldwater, Assembly District 10

Assemblyman Don Gustavson, Assembly District 32

Assemblyman David E. Humke, Assembly District 26

Assemblyman John Lee, Assembly District 3

Assemblywoman Kathy Martin, Assembly District 20

Assemblywoman Kathy McClain, Assembly District 15

Assemblyman Roy Neighbors, Assembly District 36

Assemblyman Dennis Nolan, Assembly District 13

Assemblyman Davis Parks, Assembly District 41

Assemblyman Bob Price, Assembly District 17

Assemblywoman Debbie Smith, Assembly District 30

 

 

STAFF MEMBERS PRESENT:

 

Nicolas Anthony, Senior Research Analyst

Allison Combs, Principal Research Analyst

Risa Lang, Principal Deputy Legislature Counsel

Cindy Clampitt, Committee Secretary

June Rigsby, Committee Secretary

Linda Smith, Committee Secretary

 

OTHERS PRESENT:

 

Robin Keith, President of the Nevada Rural Hospital Partners and the Liability Cooperative of Nevada

Bill Welch, President and Chief Executive Officer, Nevada Hospital Association

Bill Bradley, Nevada Trial Lawyers’ Association

John Cotton, Nevada Physicians’ Task Force

Gus Flangas, Attorney, Nevada Physicians’ Task Force

Dean Hardy, Nevada Trial Lawyers’ Association

Jim Crockett, Nevada Trial Lawyers’ Association and member of the National Board of Trial Advocacy

Matthew Sharp, Nevada Trial Lawyers’ Association

Dr. Maury Astley, Executive Director, Nevada Dental Association

Edward Goodrich, representing himself

Larry Leslie, Executive Director, Nevada State Board of Medical Examiners

Richard LeGarza, General Counsel, Nevada State Board of Medical Examiners

Lisa Black, representing the Nevada Nurses’ Association

Carin Ralls, Operators’ Union 3 and a Registered Nurse

Dr. Curtis Brown, Physician

Dr. Paul Stumpf, General Surgeon

John Yacenda, Chairman, Subcommittee to Study a Reporting System for Nevada

Robert Byrd, Chairman, Medical Liability Association of Nevada

Jim Wadhams, representing the American Insurance Association 

Dr. Paul Stewart, Secretary-Treasurer, Nevada State Board of Medical

Examiners

 

Chairman Anderson called the meeting to order at 9:53 a.m. and all members were present.  He announced the committee would be hearing testimony for A.B. 1.

 

Assembly Bill 1:  Makes various changes related to medical and dental

malpractice.  (BDR 3-13)

 

Chairman Anderson informed the committee Assemblyman Greg Brower wished to have his name added as a sponsor of the bill and asked Assemblyman Hettrick to explain.

 

Assemblyman Hettrick explained Assemblyman Brower had wished to review the bill before adding his name as a sponsor.

 

Chairman Anderson stated at the close of the committee hearing on July 29, 2002, there were questions still pending including what effect the legislation would have on rural hospitals.

 

Ms. Robin Keith, President of the Nevada Rural Hospital Partners and the Liability Cooperative of Nevada (LICON), expressed appreciation for the interest of the committee on how A.B. 1 might affect the rural hospitals in the state.  She explained Nevada Rural Hospital Partners was a voluntary consortium of all 11 of Nevada’s small, rural, and not-for-profit hospitals. LICON was a self-funded insurance trust that provided professional liability insurance coverage for member hospitals and the physicians employed by each. LICON was formed approximately 14 years previous as a means of stabilizing the cost of, and access to, professional liability coverage.  Ms. Keith noted that all nine eligible hospitals were members of LICON.  The two non-participating members sought coverage from a different source.  Both hospitals were owned by larger hospitals and received their coverage from their parent hospitals.

 

Ms. Keith stated that to the extent A.B. 1 helped to ensure continued access to hospitals and physicians, it had parallel benefits across the state in urban and rural areas.  The limiting factors of the bill were also limiting across the state; thus, Ms. Keith felt the bill did not discriminate against rural hospitals.  Ms. Keith stated her organizations were actively working with the hospital association to clarify some parts of the bill.

 

Assemblyman Marvel noted there had been an additional protection for government-employed physicians and asked if that would affect the rural hospitals.  Ms. Keith responded it would have an effect.  She noted the facility in Fallon, Nevada, was a designated level-four trauma center.  The current ownership was a not-for-profit system and through Section 2 of A.B. 1 its physicians would enjoy the protection of the governmental cap.  However, that facility was for sale and it was possible it could be purchased by a for-profit system; in which case, under the language of A.B. 1, it would not be eligible for the governmental cap.  She opined that the physicians practicing in Fallon should not be “penalized” because of the ownership of the hospital.  The protection should be attached to all designated trauma centers, regardless of ownership.

 

Assemblyman Marvel asked if the Fallon facility was the only one in that situation and Ms. Keith answered it was the only rural hospital in that situation.

 

Chairman Anderson asked how long the facility in Churchill County had been up for sale.  Ms. Keith replied the attempt to sell had encompassed approximately one year.

 

Assemblywoman Parnell asked if the recent changes in the status of the Carson-Tahoe Hospital would cause it to be adversely affected by the bill.  Ms. Keith asked if Assemblywoman Parnell was referring to the trauma situation and explained that Carson-Tahoe Hospital was not a designated trauma center so the consequences would not apply to it.

 

Chairman Anderson clarified that Churchill, Washoe, and Clark Counties had the only designated trauma centers in the state.  Ms. Keith concurred.

 

Assemblyman Hettrick stated at the previous day’s hearing he had questioned whether the limit established in A.B. 1, which required a physician to have liability coverage in the amounts of $1 million for each person and $3 million for each occurrence, would in any way impact the smaller hospitals that might be providing insurance for physicians who worked at those institutions; and whether it would have a negative impact on the financial stability of any of the rural hospitals or clinics in some of the smaller communities.  Ms. Keith explained that from a rural hospital perspective there would be no adverse impact because similar limits had already been in place for some time as a requirement of the current carrier. She added, she had spoken with Mr. Roger Vollker, Executive Director of the Great Basin Primary Care Association, to which the clinics belonged.  He had informed her the federally qualified healthcare clinics, known as FQHC’s, covered their physicians through a federal program so the bill did not affect them. She was not aware of whether community health centers would be affected.

 

Assemblyman Hettrick made the assumption that any facility affiliated with a major hospital, profit or nonprofit, would be under the same coverages.  He added, there was some indication that the current wording of A.B. 1 would tend to make hospitals be the “deep pocket” of liability insurance funding.  He asked if Ms. Keith felt the wording of the bill would push liability toward the hospitals and if that would have an impact on the smaller rural hospitals and their ability to be financially stable.  Ms. Keith replied there was some language in the bill that was of concern.  Her concern was with the issue of the cap on noneconomic damages.  The organizations she represented supported the concept of a cap on noneconomic damages and greatly appreciated the change in joint and several liability language that made them responsible for only that portion of an incident created by the institution.  The specific concern was that the actual cap would become the limit of the liability policy.

 

Assemblyman Hettrick opined the bill would tend to move malpractice cases away from the physicians and toward the hospitals and asked if a fallout result might become the curtailment of access to medical care in some of the rural areas.  Ms. Keith replied that some facilities were always operating close to their budget limits; however, the rural institutions had been successful with the liability pool for insurance coverage.  She explained part of the reason was that a number of the hospitals in the pool were protected by the $50,000 cap and because of aggressive risk management practices.  She concluded an adverse financial effect was possible.

 

Assemblyman Marvel asked how much liability insurance rural hospitals were currently carrying.  Ms. Keith replied the coverage limits varied from facility to facility ranging from $5 million to $30 million depending on the size of the facility.

 

Chairman Anderson asked for clarification that the $3 million policy requirement in the bill would not set a higher exposure standard for rural institutions.  Ms. Keith stated the limits required in the bill were those required of physicians.  She added, the hospitals carried coverage in excess of the requirements of the bill.  Chairman Anderson reiterated he was attempting to ascertain whether the provisions of the bill would put the rural hospitals at a greater risk than their current levels.  Ms. Keith replied the Chair was technically correct; however, in a practical sense, the sources of damage, such as the incentive of who was looked to for payment of damages, might change somewhat as a result of the bill.  Chairman Anderson asked and Ms. Keith concurred that the issue could possibly be an arguable point.

 

Assemblyman Dini clarified his belief that an institution, such as South Lyon Medical Center, paid the malpractice insurance premium for the doctors who worked at the facility and Ms. Keith agreed.  Assemblyman Dini asked if the bill would, in any way, affect the amounts currently being paid by the hospital per physician.  He followed with a question of whether the bill would place an added burden or whether it would be the same burden.  Ms. Keith replied it would be the same burden.

 

Chairman Anderson asked if there were any other questions from the committee and having none asked if Mr. Welch had anything to add to Ms. Keith’s testimony.

 

Mr. Bill Welch, President and Chief Executive Officer, Nevada Hospital Association, stated his association supported the passage of meaningful tort reform that would help alleviate the current problems.  He noted he and Ms. Keith had collaborated on her testimony. 

 

Assemblyman Anderson stated the committee would move to an explanation of the bill.  Chairman Anderson suggested those present at the witness table move through A.B. 1 section-by-section, beginning with the first three sections.

 

Mr. Bill Bradley, Nevada Trial Lawyers’ Association (NTLA), introduced Matt Sharp, also of the Nevada Trial Lawyers’ Association.

 

Mr. Bradley explained A.B. 1, Section 1, addressed the trauma center issue in southern Nevada by imposing limitations on victims of negligence in trauma centers.  It would provide a cap of $50,000 that was already in existence to the state, counties, and cities under the doctrine of sovereign immunity.  The section stated a person treated under very emergent circumstances, who would claim they were a victim of medical malpractice, despite the medical malpractice policy limits of the doctors involved, would be limited to $50,000 irrespective of whether the damages were economic or noneconomic in nature. The provision did not consider fault or degree of damages.

 

Section 2 contained technical amendments to the Nevada Revised Statutes (NRS).

 

In Section 3, the first definition was for “economic damages.”  He explained medical malpractice cases were a type of tort claim and explained the types of damages a jury could award in tort cases.  A victim of someone else’s negligence was entitled to recover their past and future medical bills and their past and future wage loss, including the ability or inability to earn a living. 

 

Economic damages were defined as damages for medical treatment, care or custody, and loss of earnings.  The NTLA had agreed with physicians who desired an amendment to the definition deleting at Section 3, line 10, page 3, the word “and”; then following the words “loss of earnings” add “and loss of earning capacity.”  The amendment had already been approved in the Senate.  Mr. Bradley further explained economic damages as those damages that represented out-of-pocket expenses needed for care of an injured victim plus the expense associated with their loss of ability to earn a living and the loss of wages during their injury and recovery periods.

 

Mr. Bradley stated economic and noneconomic damages were further broken into past and future damages.  Past damages, whether economic or not, represented the damages inflicted upon a patient from the time of the medical malpractice until the time of the trial.  Future damages included those from the end of the trial through the anticipated life expectancy of the victim.  Past awards included a levy of interest because they represented money already taken away from the victim.  Future damages would not include interest because the damages had not yet occurred.

 

Mr. John Cotton, Nevada Physicians’ Task Force, concurred with the amendment language.

 

Mr. Gus Flangas, Attorney, Nevada Physicians’ Task Force, also concurred with the language as presented by Mr. Bradley.

 

Assemblywoman Ohrenschall asked Mr. Bradley to repeat the explanation regarding interest accrual.  Mr. Bradley explained interest was awarded on past damages because it represented the amount of money awarded to a victim, but not paid for a period of years from the time of the filing of a complaint until a judgment was returned.  Assemblywoman Ohrenschall asked if interest was also accrued on the loss of earning capacity as opposed to simply loss of wages.  Mr. Bradley replied interest would be applied if there was a loss of earning capacity during the period a victim was awaiting commencement of a trial.

 

Chairman Anderson stated the committee had been focusing on the pain and suffering elements related to caps so that amendment must have stemmed from an unintended consequence.  Mr. Bradley concurred.  Chairman Anderson asked for clarification that the amendment would not change existing law with regard to what damages were allowed.  Mr. Bradley agreed.

 

Chairman Anderson asked Mr. Bradley to continue with the explanation of the next three sections of A.B. 1.  Mr. Bradley agreed, noting that Section 5 might entail a more lengthy discussion.

 

Mr. Bradley related Section 4 contained the definition of noneconomic damages often referred to as the “pain and suffering” component of awards.  He added the lawyers and physicians were in agreement on that language.

 

In Section 5, agreement on a language amendment had been reached.  At Section 5, line 14, add “subsections 2 and 3” where currently only subsection 3 was shown. 

 

Section 5, line 16, should read, “noneconomic damages awarded to each plaintiff from each defendant.” 

 

At Section 5, subsection 2, line 20, should read “subsection 1 and 3.”  After the number “3” it should read, “the noneconomic damages awarded to a plaintiff from each defendant.”

 

At Section 5, subsection 2, line 21, after the word “exceed” remove the words, “the greater of $350,000 or.”  Chairman Anderson repeated the new language after the word plaintiff in line 20; “from each defendant must not exceed the amount of money remaining.”  Mr. Bradley affirmed that reading.  The Chair asked that the bill drafters make sure the language coincided with proper bill language.  Mr. Bradley noted there appeared to be some concern in the Senate about the proposed language mutually agreed upon by the attorneys and the physicians.  As part of the amendment, Chairman Raggio directed that if the bill drafters did not like the suggested language, it only be changed in a way that reflected the intent of the proposal and all parties would be given an opportunity to view the final language before it was adopted.  Chairman Anderson noted legislators tended to rely upon language proposed by the Legislative Counsel Bureau (LCB) staff.

 

Mr. Bradley stated the next amendment generated some concern about where it should be inserted.  It would either become a new section in front of Section 3 or a new section in front of Section 4.  He noted placement was not as important as the wording of the language.  The proposed amendment would state, “This section is not intended to limit the responsibility of any defendant for the total economic damages awarded.”

 

Further, A.B. 1, Section 5, subsection 3, subparagraph H, line 40, should read, “A case in which, following return of a verdict by the jury or a finding of damages in a bench trial.”  Also, in subparagraph H, line 42, it should read, “$350,000 for noneconomic damages is justified.”  Delete the words, “under the” and replace with, “as exceptional.”  Mr. Bradley clarified, the complete sentence would read, “A case which, following the return of a verdict by the jury, or a finding of damages in a bench trial, the court determines by clear and convincing evidence that an award in excess of $350,000, for noneconomic damages is justified as exceptional circumstances.”  He stated that concluded the agreed upon language changes in Section 5 of A.B. 1.

 

Chairman Anderson asked that Section 5 be explained to the committee.

 

Mr. Cotton explained the intent of Section 5 was that, rather than try to delineate every conceivable injury that could occur, they identified the very distinct injuries of brain damage, blindness, and others that were fairly obvious, and then allowed that the only time an exception would be involved was in a case where, by clear and convincing evidence a judge found there were exceptional circumstances in that particular case in the area of catastrophic damage occurring from the injury.  It did not address the conduct of the doctor or hospital involved.  Mr. Cotton stated the phrasing formed a very restrictive “catchall” limited to cases with a catastrophic impact.

 

Assemblywoman Buckley asked if the physicians felt the section provided a good balance for the state with the overall size of the cap and the exceptions provided in the bill.  Mr. Cotton replied the physicians he represented would prefer to have a fixed, lower cap, but they recognized the concerns through the opinions of the public and others that their preference might not be fair in all circumstances.  The goal, however, was to retain doctors who were practicing in the state and could be accomplished by protecting doctors’ personal assets by a policy limit cap in most cases.  In addition, the doctors desired the adoption of meaningful legislation under the current crisis that would allow outside insurance companies to begin writing coverage in the state and provide competition to realign the premium structure in the state.  That was a particular problem within Clark County.  The physicians were not initially agreeable to any exception in the bill, unless insurance representatives perceived the exceptions as a significant move to show stable levels upon which to base premium structures.  In discussion with others, there was indication that the language would result in appreciable changes over a period of 3-to-4 years.

 

Assemblywoman Buckley asked if the amended language in A.B. 1, Section 5, was perceived as fair and Mr. Cotton replied affirmatively.

 

Chairman Anderson asked if the committee could anticipate a 4-to-5 year waiting period before the insurance actuarial tables would reflect the provisions addressed by the bill.  Mr. Cotton explained there would possibly be some short-term savings and then there would be a wait for a pattern of cases and awards to build before there would be any significant movement in insurance premiums.  He added that was not an abnormal result within the insurance industry.  He noted that even if the bill reflected a cap of $5, there would not be an immediate impact on premiums.  The Chair confirmed, even if the cap was significantly lowered there would be a waiting period of 2 to 3 years to see what the actuarial tables would show.

 

Mr. Cotton noted another issue that should be seriously confronted was the fact there were only about three companies that were writing medical malpractice policies within the state, thus there was no incentive to provide any form of competition.  Chairman Anderson confirmed it was the hope of the physicians that the insurance market would be broadened by the bill and Mr. Cotton agreed.

 

Mr. Bradley suggested the committee spend some time discussing how the provisions would actually work and Chairman Anderson requested that he continue with the explanation of the bill.

 

Mr. Bradley stated A.B. 1, Section 6, contained the amendment to the doctrine of joint and several liability.  The language was modeled after the Medical Insurance Comprehensive Reform Act (MICRA) established in California.  The section made any healthcare provider jointly and severally liable for the economic damages incurred in a case, but only severally liable for the noneconomic damages.  He explained that of the economic damages awarded to a claimant, if there was more than one defendant, such as multiple doctors or a doctor and a hospital, the bill stated irrespective of the percentage of fault of each defendant, each healthcare provider would be responsible for all of the economic damages awarded to the claimant.  He noted that was the current law within the state.  Under the noneconomic damages, the responsibility to pay the amount of the award was based on the percentage of fault of each particular healthcare provider. 

 

Mr. Bradley explained if $100,000 in noneconomic damages was awarded in a case and one healthcare provider was found 70 percent at fault and the other was found 30 percent at fault, the first would pay $70,000 and the second would pay $30,000.

 

Assemblyman Marvel asked if the determination of percentages was subjective or if there was a rule to follow.  Mr. Bradley replied a jury made the determination.  Typically all evidence was presented by the attorneys for each side at trial, and at the conclusion, the judge would meet with all attorneys for the settling of instructions.  In any case heard before a jury, the jury was provided with jury instructions at the end of the trial.  Nevada law provided for a uniform set of jury instructions such as: how to elect a foreman of the jury; how to treat a corporation; and how sympathy, passion, and prejudice were excluded from decisions; among others.  Additionally, the attorneys would argue about certain jury instructions specific to the case from each side.  The judge would determine the final instructions given to a jury, including instructions about economic and noneconomic damages.  In the attorneys’ closing arguments the economic and noneconomic damages were presented by each side again.  The court also had a sheet containing a series of questions for the jury, called a verdict form, that contained such questions as:

 

• Do you find that the care provided by the doctor fell below the standard of care of a reasonably prudent physician under the same or similar circumstances;
• Do you find that the care of the second physician was below the standard of care of a similar physician;
• Do you find that the plaintiff was injured by the physician;
• What do you find as the amount of the economic damages;
• What do you find as the reasonable value of the physical and mental pain, suffering, disability, and anguish;
• Break down the amount into past and future damages; and
• Do you feel the plaintiff was partially at fault for his or her own disability.

 

The end result of the verdict form, if it was done appropriately, would give a good understanding of the intent of the jury.  The final calculations were made either by the judge or the jury, depending on where the trial was held.  Six out of eight jurors must agree on those apportionments of fault.

 

Assemblyman Marvel asked how many of such determinations went to appeal.  Mr. Bradley replied, the vast majority were appealed, however, at the same time negotiations were ongoing creating an opportunity to resolve the case before an appeal went before the higher court.

 

Chairman Anderson recessed the meeting at 11:02 a.m. The meeting reconvened at 11:58 a.m. 

 

Mr. Dean Hardy, representing the Nevada Trial Lawyers’ Association, stated he was prepared to speak generally about the bill, but first he would like to present a videotape for the committee.  He introduced Diane Meyer, an alleged victim of malpractice, and a speaker on the video.

 

The video titled, “MedMal Version #2 – 7-28-02,” (Exhibit C) portrayed three people affected by alleged medical malpractice. The first case portrayed was of a gentleman who went to a doctor for a needle biopsy of the chest.  Apparently, the patient complained that he was having problems breathing and according to the speaker, who was the wife of the patient, the doctor’s response was that the patient should “suck it up” because they were almost done.  The end result was that the aorta had been punctured several times and the patient died.

 

The second case was that of a baby who was born at full term.  The speaker was the mother of the child and stated she had asked the doctor if she could have a caesarean section to which the doctor replied he preferred to induce labor.  The mother stated she was unaware the doctor would not be present the entire time she was in labor.  The father explained the child was expected to go home in the normal manner and all was in readiness.  The mother said the baby was born not breathing, had a seizure, and severe life-long problems had occurred.

 

Ms. Meyer appeared as the third case in the video stating her husband had taken her to the emergency room and she was the only patient there at the time.  She stated she was very ill and could not get the attention of anyone to assist her.  After examination, she was diagnosed with a small kidney stone, given some medication and sent home.  Within 1.5 weeks she had lost her legs and her doctors had considered taking her hands as well.

 

The video summarized the fact that patients and their families who were affected by malpractice were affected for the rest of their lives.

 

Chairman Anderson expressed deep sympathy to Ms. Meyer for what had happened to her.  He stated nearly every member of the committee could probably relate some incident regarding a family member that had been harmed at some time.  He related a call from his sister-in-law prior to the legislative session to remind him of how she had lost her hands and feet as a result of medical malpractice.  Ms. Meyer stated she had wanted to speak before the committee to stress her viewpoint; victims of malpractice were real people.  She noted that while her medical and prosthetic needs would always be met, somewhere along the line victims of malpractice wanted to hear that someone was held responsible for mistakes being made.  She opined the term “pain and suffering” expressed the vast changes made in a life by certain circumstances.

 

Chairman Anderson stated it took a great deal of courage to appear before a committee.  He added he could only, in a small way, appreciate what the victims of malpractice dealt with daily.

 

Mr. Hardy introduced Jim Crockett, who also represented the NTLA.  Mr. Hardy stated he did not bring witnesses or the videotape to play on the emotions of the committee so that perhaps a trial lawyer could earn a larger fee.  He stated his purpose was that not only did their stories break his heart, but also that there was an assault on the justice system.  He opined the justice system was being trampled.  He explained, when the peoples' access to a trial by jury was limited it broke his heart.  He emphasized the Constitution was not a technicality.  He added, he was a Nevadan first and a trial lawyer second, and if he thought what he did for a living compromised healthcare he would change his livelihood.  He acknowledged doctors needed to have available and affordable malpractice insurance and acknowledged the efforts of the Governor in creating a state insurance company.  He stated, to fix the problem one must understand what created it in the first place. 

 

Mr. Hardy stressed the data collected did not support that the civil justice system was the sole blame for the demonstrable and significant increase doctors in southern Nevada were facing in their malpractice insurance rates.  He asked if it was a coincidence that St. Paul, the single largest insurer in southern Nevada who controlled 60 percent of the market share, and during the economic downturn of the last quarter of 2001, decided to no longer offer insurance in Nevada as well as every other state across the union.  He stated it seemed unlikely that a civil justice crisis was created at the same time.  He stressed the committee could not look solely to the civil justice system for a solution to the situation doctors were facing.

 

Mr. Hardy informed the committee that on Friday, July 26, 2002, in California, two of the larger insurers of medical malpractice in that state, asked for double- digit rate increases.  Norcal asked for a 13 percent rate increase and MIEC asked for a 10 percent increase.  Mr. Hardy concluded the problems facing the committee were truly complex.    

 

Chairman Anderson expressed his appreciation for the personal testimonies and the video provided and explained the committee needed to continue their study of A.B. 1.  He was most concerned that the public should have an opportunity to be heard.  He noted that whatever venue created the crisis there was indeed a crisis in southern Nevada when a trauma center was closed and the public lost access to healthcare when they needed it most.  He recognized the physicians’ profession was one of compassion and dedication.

 

Mr. Jim Crockett, Nevada Trial Lawyers’ Association, and a member of the National Board of Trial Advocacy, explained he represented private citizens exclusively and some of his practice was devoted to malpractice issues.  He addressed the committee regarding the constitutionality of any law passed by the legislature.  He noted the same people who comprised the electorate who chose the legislators were the same people who sat on juries and made decisions in malpractice insurance cases.

For a law to pass constitutional muster when the ability of a person to present their case before a jury was impaired, a court would review the impairment of the individual’s rights to seek full redress without any limitations upon the jury’s ability to consider all relevant issues and the public benefit purported as a result of that law.  The current problem was that there was no credible evidence to suggest that the civil justice system was the root of the current evil.  He provided the committee with a booklet entitled, “The Reality about Medical Malpractice Law” (Exhibit D).  He referred to the bar graph on page 2 that showed the average liability premium for a general surgeon in 2001.  In states without caps on damages the average nationwide premium was $26,144 per year.  For states with caps on damages, the premium was $26,746 per year.  He noted that meant general surgeons paid an average of $650 more for coverage in those states with a cap on malpractice damages.

Secondly, Mr. Crockett noted Governor Guinn instituted a suit through the State of Nevada against St. Paul Insurance Company alleging that St. Paul created the insurance crisis by underpricing itself in the market.  The suit alleged the company did a bad job of underwriting doctors and then, by pulling their coverage out of the state, caused irreparable harm to the insurance market within the state.  He added there was no question that the rates doctors were paying was outrageous, but the question was what caused the problem.

The third indicator that the civil justice system was not the culprit was that Congress empowered the Government Accounting Office to investigate the insurance industry to see if their accounting practices were at the root of current problems.  He acknowledged there was always room for improvement in the legal system, but when addressing constitutional issues, he asked the committee to keep focused narrowly on the Governor’s proclamation to address the crisis.  Mr. Crockett added the committee needed to discover what led to the closure of the southern Nevada trauma center and he opined broad changes in tort reform were not needed that encompassed every aspect of the civil justice system without legitimate justification. 

Chairman Anderson noted questions of constitutionality were always of interest to him.  He acknowledged California had responded to a medical malpractice crisis in its state. He added the cap was subsequently found constitutional under the U.S. Constitution because it had a legitimate purpose based upon legislative action and was rationally related to achieve the purpose of that legislation.  He suggested the burning question that would ultimately be placed before the Nevada Supreme Court, based upon whatever action the Nevada Legislature took in special session, was: 1)  Was there going to be a response from insurance companies to reduce rates.  If there was no response to reduce rates then, 2)  Constitutional scholars would say there was a crisis and the solution did not produce a result and therefore the caps did not have a place.  He asked if that was a fair statement.  Mr. Hardy replied testimony had been heard earlier from Mr. Wadhams, who was currently not present, that suggested A.B. 1 would have some positive effect on insurance rates for doctors.  From their perspective, the bill would help to stabilize and reduce insurance rates because there was a cap on the most vague aspect of damages – noneconomic damages.  He added that Mr. Byrd, Chairman and Chief Executive Officer of the state insurance company implemented by the Governor, had testified before the Senate also suggesting the bill would have a positive effect on insurance rates.  Mr. Hardy stated trial lawyers recognized the political reality of the situation requiring something to be done.  He expressed hope that what was accomplished during the session would have the desired effect.

Mr. Crockett concluded by stating it was his sincere hope the legislature was not driven by concerns expressed through the media.  He added the media should focus their attention on the insurance industry, rather than the civil justice system, to answer the question of “if” something was done, would the insurance companies respond with a quantifiable change.

The Chair asked if there were questions for the witnesses relative to the constitutionality of the outcome of current legislation.

Assemblyman Hettrick stated he appreciated the comments, but the legislature was not in session to assess blame, rather to find a way to lower the cost of medical malpractice insurance so it would be affordable and allow citizens, particularly in southern Nevada, access to healthcare.  Secondly, it seemed that if whatever legislation passed did not result in lowering of insurance premiums, then it would not stand the constitutional test of being effective legislation and would be ruled against.  He added that did not mean legislation should not be passed.  It should be passed and results of the outcome observed.  He acknowledged the crisis was an extremely complex issue, but it appeared something must be done to lower the cost of insurance or the state would continue to lose doctors.

Assemblyman Hettrick explained he could only see two ways to reduce the cost of insurance.  1)  Reduce the number of incidents, and 2) Reduce the cost per incident.  He stressed there was no other way.  He asked what the number of incidents were, acknowledging that human beings would make errors.  He asked how to reduce the incidence of errors.  He agreed with Ms. Meyer that she could not get her legs back, but the issue was, there had to be economical medical care and access for Nevadans. 

Mr. Crockett stated he had not used the word “blame” in his testimony.  He added his comments went to a purely constitutional perspective.  A court would look at whether the object of legislation was responsible for the ills that were being addressed.  He stressed legal caps would not address the issue of frequency of incidents of malpractice. He added caps only addressed severity of an issue and were necessary for only the most severe injuries.  He stated he had only brought up the insurance industry in addressing constitutionality to say it would be wonderful if the insurance industry could be held accountable and commit a specific kind of rate reduction or that they would address rate reduction based upon the rates prior to the current crisis.  Mr. Crockett noted Mr. Hardy was not a malpractice lawyer and under the current issues of coincidence, not just September 11th or Wall Street, issues were coming to light, but WorldCom and Enron were all developing in the fall and winter of 2001; yet those issues were only currently coming to light.  It was one of the things that prompted Congress to instruct the Government Accounting Office to investigate the insurance industry for the accounting practices to see if those had created the current, national crisis.  He added the insurance industry were the ones who were telling doctors who had never experienced a medical malpractice claim and had a history of being an excellent physician, that their premium would jump from $42,000 per year to $126, 000 per year.

Assemblyman Hettrick acknowledged he had not meant to put the word “blame” in Mr. Crockett’s mouth; in fact, Mr. Hardy had actually used the term, “sole blame.” He added, in terms of timing, the legislature had been looking at tort reform longer than since the advent of September 11th.  He noted there had been multiple bills proposed by multiple persons to address tort reform.  He commented on the double-digit rate increase requests in California.  To go 13 percent up from a $42,000 premium was a great deal different than to go from $42,000 to $126,000.  There was a magnitude of change that must be recognized.  The California requests might relate to inflation alone, depending on when the last rate increases had been allowed.  He stressed the legislature was not trying to assess blame, but rather to find a way to affordable premiums in Nevada.

Chairman Anderson stated malpractice was more than someone making an error; it was someone making a mistake that should have been avoided because of a healthcare provider doing their job.  It was an avoidable mistake caused through negligence.  One of the frustrations dealing with any legislation involving tort claims was the demonstrable ability to someone of whether an event was an identifiable event and  whether it could have been avoided.  If that could be proven, it would not be considered an accident.  Mr. Hardy stated he was comfortable with the comments by the Chair and Assemblyman Hettrick.  He was comfortable that the legislative deliberations would produce a bill that addressed the issue and it was a tough job.

Mr. Crockett stated, with regard to the medical malpractice issue, his purpose in providing testimony was to identify issues the NTLA had become aware of in their research as to potential pitfalls.  He addressed the Chair’s comments regarding mistakes and their preventability.  In order to establish a recovery system that would only compensate for mistakes made, it would completely change the legal system to a “no-fault” system.  If a person had a bad result because of medical treatment, regardless of the cause, they would be compensated according to some schedule similar to workman’s compensation.  He stated that was not the way the civil justice system worked.  He added the system did not require a doctor to perform at the level of an “A+” physician.  Under the current system, if a doctor had complied with the standard of care that his colleagues might consider a “C-“ grade, that was not negligent regardless of the result.  He stated that was exactly the argument every defense attorney made in every malpractice case.  Only when other expert doctors in the same field went to court and testified a certain doctor fell below the minimum acceptable standard of care, was negligence present.

Assemblyman Marvel stated September 11th was not the turning point for malpractice insurance premiums.  In 1995 he, as primarily a representative of rural areas, had submitted a bill that was parallel to California’s Medical Injury Compensation Reform Act (MICRA).  He brought the bill because of the need to attract doctors, especially those specializing in obstetrics and gynecology (OB/GYN), to the rural areas and stated at that time there was not as much of a crisis. 

Assemblywoman Parnell asked if the committee would be hearing from Mr. Wadhams and the insurance industry that day.  The Chair replied the great tragedy was that an Interim Committee, in front of whom the insurance industry was to have appeared, had to be postponed due to the call of the Governor to the 18th Special Legislative Session.  He added some members of the insurance industry had chosen to appear in the Senate committee currently underway.  He added there were no representatives of the insurance industry or the Physician’s Task Force listed on the guest list for either the previous or current day of hearings in the Assembly.  He noted he had talked to Mr. Wadhams briefly and would attempt to have some of those representatives present before the end of deliberations.

Assemblywoman Parnell stated perhaps other members of the committee would feel as she did, that unless the insurance industry presented testimony to the committee in the near future, she would wish to make a statement for the record before the end of deliberations.

Assemblyman Brown stated, according to the constitutional issue, referring to the bar graph included in Exhibit D if, in comparing states with and without damage caps, that the current configuration was somewhat due to the fact that states with caps had probably gone through somewhat of a crisis.  He asked if, in fact, rates had stabilized after experiencing dramatic increases such as had recently been seen in Nevada.  Mr. Crockett replied the reason the graph showed 2001 figures was those were supposed to be pre-crisis rates.  Assemblyman Brown suggested the intent of the graph was to say there were states with caps, but the physicians still paid on average, a higher premium.  He suggested that could be a persuasive argument in terms of the efficacious nature of tort caps.  He asked if those states with caps were experiencing a radical increase in premiums, thus causing caps to be enacted.  He suggested a state that did not quickly get a handle on premiums, saw premiums shoot past those of other states.  He added perhaps after caps were enacted premiums in those states leveled off.  That might explain why states with caps had a higher premium.  Mr. Crockett replied he did not know if that was an accurate assumption or not because the chart reflected premiums for the calendar year 2001.  Whatever had taken place in the states prior to that year had a long history, but in 2001 a comparison  of the rates was accurate.  Mr. Crockett stated when President Bush was governor of Texas in 1995, he was successful in urging passage of medical malpractice tort reform and yet Texas physicians were closing their practices at the same time as those in southern Nevada.  He opined that was an overt indicator that tort reform had not solved the issue in Texas.

Chairman Anderson referred to Volume III of the “Background Information on Medical Malpractice” (Exhibit E), that contained information on states finding caps unconstitutional.  States with caps on damages had no case law to back it up, and constitutional questions were based on statutory case law.

Assemblyman Beers stated in review of Exhibit E, regarding the obstetric and gynecological rates listed, they were considerably below what the private sector was able to find within the last 3 to 4 months.  They were also considerably below what the new, state-owned system was able to provide.  He noted if the problem was the mismanagement of insurance companies, the new, state-owned insurance company would not have the bad investment history and would be able to offer rates at least competitive with those listed in Exhibit E.  He asked how the rates were developed within the state-owned company.  Mr. Crockett replied he had heard, as a member of the Governor’s Task Force and in talking to the individuals connected with the state program, that when the state program saw the rates last being charged by the St. Paul Company, they knew those were too much, but they felt they could not go too much below that to work successfully with the actuarial numbers.  He said that also agreed with the Governor’s suit against St. Paul that stated as a result of St. Paul’s pricing policies to grab 60 percent of the market, the other insurance companies would either lose their customers to St. Paul or they would have to drop their prices to hold their market share even though it was not a high enough premium to cover the inherent risk.  St. Paul created a vacuum in the market.  The Doctors’ Insurance Company had 31 percent of the market prior to St. Paul insuring in the state.  The St. Paul introductory move was to buy up The Doctors’ Insurance Company, which had been a successful small business.  The Doctor’s Insurance Company market share dropped to 9 percent.  He concluded the media was reporting rate increases up to 296 percent.  In actuality, that figure represented quotes for coverage and Alice Molasky, Nevada Insurance Commissioner, was quoted in the Las Vegas Review Journal as saying she was successful in negotiating with The Doctors’ Insurance Company to reduce rates from as high as 296 percent to 50 percent and the article noted those percentages were a matter of record with the Insurance Commission.  That article was placed on page 4 of the newspaper, yet on the front page of the same paper was an article stating 150 doctors were leaving the state because their rates were projected to triple.  He asked at what point discussions could get down to actual rates charged and quit dealing with projections.

Assemblyman Brown referred to testimony in favor of amendatory language, the added language of “from each defendant” in Section 5, line 16, of A.B. 1.  He asked in what percentage of cases were a single plaintiff versus those cases with multiple plaintiffs and the same for cases with a single defendant versus those with multiple defendants.  Mr. Crockett asked for clarification of the question; was it what percentage of cases involved single defendants versus multiple defendants.  Assemblyman Brown agreed.  Mr. Crockett stated he did not have those percentages.  Assemblyman Brown added he would also like the percentage for single versus multiple plaintiffs.  Mr. Crockett stated he did not have those figures either.  Chairman Anderson stated he was not sure, given the time constraints of the special session, whether it would be possible to research those figures in time to be useful.

Mr. Hardy offered to do research on the question and at least come up with some approximate numbers.  Assemblyman Brown acknowledged he was only looking for rough numbers.

Assemblywoman Cegavske provided written testimony for the committee from Dr. Paul Chao, who needed to leave before his testimony was allowed.  The Chair agreed to enter the written testimony into the record (Exhibit F).  Dr. Chao made several points in his written testimony:

·        Many doctors were leaving the state as a result of the rise in malpractice insurance rates.  In fact he, himself, would leave if his premium as an OB/GYN doctor reached $100,000 per year or more.

·        He had seen a figure quoted for cost of the special legislative session of $160,000 and noted his malpractice insurance premium coverage in the next year could reach $130,000.

·        An average OB/GYN doctor delivered 240 babies per year.  Since his personal malpractice insurance premiums were based on the number of babies delivered and his rate was limited to 125 babies per year he had accepted no new patients since May 2002, and did not expect to accept any until at least September 2002.

·        He noted the Governor’s statement of the previous day that the bill might provide a cap of $50,000 for doctors performing pro bono work in trauma centers.  He asked that that provision be extended to all doctors and explained he had three cases the previous weekend when he was on call as part of his agreement with the hospitals in which he worked.

·        He described the fact that none of the three cases had insurance or prenatal care and had come to emergency to deliver their babies.  The first had a previous caesarian section and he was compelled to perform a second section without knowing the location of incisions made during the first surgery.  In the second case, the mother had cocaine and marijuana in her blood system and the baby was delivered having withdrawal symptoms.  The third case was a mother experiencing her sixth birth.  The mother was overweight and the baby appeared large.  The head presented, but the shoulders were stuck.  Dr. Chao eventually got the shoulders to come through, but the hips then stuck.  The baby was born with a bruise on the nipple where Dr. Chao had had to grasp it to complete the birth.  He explained those were all pro bono cases and he was responsible for what happened to those children as a result of birth for the next 11 years.

Chairman Anderson explained the procedure for presentation of written testimony and other materials to the committee.  He recessed the committee at 1:11 p.m.

Chairman Anderson reconvened the committee at 2:45 p.m. and asked Mr. Bradley to reconfirm the proposed language changes in the bill up to the end of Section 5 of A.B. 1.  Mr. Bradley and the Chair went through the proposed changes and discovered one discrepancy.  Mr. Bradley stated the amended sentence at Section 5, subsection 3, paragraph H, line 40, should read “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 . . .”

Chairman Anderson asked for confirmation that there were no proposed amendments to A.B. 1, Section 6, and Mr. Bradley agreed.  Assemblyman Hettrick had also requested the addition of Assemblyman Brower’s name to the face of the bill.  Chairman Anderson stood ready for a motion to approve Sections 1 through 6 of A.B. 1 as amended.  Mr. Bradley asked that the documents provided by the NTLA, including a chart of the leading causes of death in the United States, the publication, The Insurance Cycle (The Reform Cycle), and the document entitled, “Bad Business Decisions by Insurers Reap Havoc on the Insurance Industry” be included in the record as Exhibits G, H, and I respectively.  The Chair concurred.

Assemblyman Hettrick noted that Rule 4 of the Assembly Medical Malpractice Issues Committee (Exhibit J) stated that members supporting an amendment or a legislative measure were expected to support final adoption on the Floor of the Assembly.  He asked for clarification that a vote on the first six sections of the bill, without hearing the remainder of the bill, would not obligate members to support the total bill at a later time.  The Chair stated it was his intent to find agreement on the first six sections of the bill and then, as other sections of the bill were agreed upon in logical groups, so that the same sections did not need to be repeatedly referred to.  Then a final vote would be taken for the purpose of making a recommendation of amend and do pass to the floor.  The final vote would be the recorded vote obligating members of the committee.

ASSEMBLYMAN DINI MOVED TO ACCEPT THE ADDITION OF     ASSEMBLYMAN BROWER’S NAME TO THE FACE OF A.B. 1 AND THE PROPOSED AMENDMENT LANGUAGE IN SECTIONS 1 THROUGH 6 OF THE BILL AS PROPOSED BY MR. COTTON AND MR. BRADLEY.

ASSEMBLYWOMAN BUCKLEY SECONDED THE MOTION.

THE MOTION PASSED UNANIMOUSLY.

 

The Chair asked Mr. Bradley to explain Sections 7 through 9 of A.B. 1.  Mr. Bradley stated further in the bill, the Medical Malpractice Screening Panel was abolished as of October 1, 2002, for all cases in which the plaintiff “opted out” of the panel.  Because those cases would then be moved into district courts, there was a desire to get those particular cases heard in an efficient manner.  Under current law, from the time a case was filed in district court, the party had 5 years until the trial had to begin and Section 7 provided a method to expedite cases being referred to the courts from the panel.  Mr. Bradley explained that section would stop much of the negotiations and stipulations for continuances that typically occurred in such cases.

 

Mr. Bradley explained from October 1, 2002, to October 1, 2005, the bill would allow 3 years to move cases through the litigation process.  That time frame targeted the cases coming from the screening panel and then, after October 1, 2005, all cases of malpractice would have to be heard in a 2-year time frame, rather than the existing 5-year period.  Mr. Bradley stated the intent of Section 7, subparagraph 2, was to preclude someone from dropping a case and then trying to file a second case against the same defendants.  Subsection 3 instructed each district court to adopt rules to expedite malpractice cases.  Mr. Bradley explained Arizona had a fast-track system that placed very stringent procedures on attorneys, which made administration of a claim in the court system more efficient.  The intent of subsection 3 directed Nevada to adopt rules to achieve the same outcome.

 

Assemblywoman Parnell stated her only concern was that in previous testimony a number of people had expressed difficulty in finding an attorney to represent them, and then experienced a very long period of time where an attorney might hold a claimant’s information before deciding not to take a case.  She asked if, under the bill, the court could take such circumstances into consideration and grant an exception.  Mr. Bradley stated the bill would require that attorneys made expeditious decisions about whether they would take a case.  However, because the screening panel was going away, a case would be moved more quickly, the case would actually move through the system faster than was currently happening under the screening panel.

 

Assemblyman Beers asked if the fast tracking would mean a shortened statute of limitations.  Mr. Bradley stated that would not be affected by Section 7.  He explained that provision was discussed in Section 11 of A.B. 1.  Section 7 dealt specifically with the time frame between when a case was filed and when it was completed in the district court system.

 

Chairman Anderson asked for clarification that a case under review by the medical screening panel might take 2 to 3 years to be heard and would be heard under a much tighter time frame under the bill.  Mr. Bradley stated once a client was in the court system, their day in court would happen within 3 years for the initial cases and those filed later would be heard within 2 years.

 

Chairman Anderson asked if Section 8 provided for expert verification of evidence. Mr. Bradley stated under current rules with the screening panel an attorney was mandated, subject to dismissal, to provide an affidavit of a physician.  In filings at the district court level a requirement had been made that a summary affidavit from a physician in the same area of expertise who reviewed the records and based on that review, affirmed that the case was meritorious.  He noted the NTLA believed there needed to be a deterrent from cases being filed in order to get a quick settlement.  The requirement that an expert in the same or similar circumstance review the records would ensure the records would continue to be reviewed by an expert before they were filed.  Chairman Anderson clarified the section required review of the records by someone practicing in a similar area of expertise.  Mr. Bradley noted the language stated the expertise must be in a field “substantially similar” and explained if a case was filed against an obstetrician, the expert for review must be someone very familiar with the field of obstetrics.

 

Chairman Anderson asked if it was currently difficult to find such experts and Mr. Bradley replied specific medical experts had always been difficult to find.  He stressed Section 8 of A.B. 1 was not intended to mean a doctor who served in the same locality as a defendant, but someone perhaps from a different state who practiced in the same field of medicine.

 

Assemblyman Dini stated he had heard rumors that the dentists were not happy about the abolishment of the screening panel.  Chairman Anderson had requested the Executive Director of the State Dental Association to be present and explained his intent was to complete review of the sections of the bill that dealt with the screening panel prior to that testimony.

 

Matthew Sharp, Nevada Trial Lawyers’ Association, stated A.B. 1, Section 9, mandated an early settlement conference after a complaint had been filed and after a defendant had an opportunity to respond.  The intent was to provide for early case resolution to:

 

·        Assess the liability of the defendant before the judge;

·        To provide early resolution to see if a case with merit could be resolved through a fair settlement; and

·        If a case was not meritorious, that the judge could instruct the attorney representing a plaintiff that the case should not be filed.

 

Mr. Sharp stated under Section 9, subsection 4, the judge would have the authority to issue sanctions against any party who did not participate in a settlement conference in good faith.  There had been a concern regarding the screening panel that some of the legitimate cases were not being settled quickly and also, that some of the cases that had made their way through the panel should not have been filed in district court.  He commented a similar program had been instrumented in Washoe County and had been very successful.

 

Chairman Anderson asked if it was the last hope for a plaintiff when a judge stated a case did not appear to have merit.  Mr. Sharp replied no one could force a lawyer to dismiss a case, however, the court had inherent remedies.  If a judge decided a case was without merit and an attorney decided to proceed anyway, the attorney could be personally sanctioned for the attorney fees.  As a practical matter, a legitimate attorney would probably not continue in pursuit of such a case.  Chairman Anderson rebutted that in his reading of the bill, it seemed to “carry a heavier hammer” than existing law in terms of moving forward than under previous provisions.  Mr. Sharp agreed.  He added, by providing a judge the inherent authority to regulate the settlement conference stronger results would occur.

 

Assemblyman Dini asked if there was some standard or guide for filing “in good faith” either in Nevada Revised Statutes or in Nevada case law.  Mr. Sharp replied there was no specific standard but judges had experience in trying to resolve cases.  When a party did not come to a settlement agreement in good faith, in his experience, the judge levied sanctions with a heavy hand.

 

Chairman Anderson asked if Section 10 was a bill drafter question and Mr. Sharp agreed. 

 

Mr. Sharp stated A.B. 1, Section 11, was intended to deal with the problem of elimination of the screening panel and implementation of the reform of the bill.  Section 11, subsection 1, paragraphs A through C, dealt with the statute of limitations and when it would apply in certain cases.  Those cases occurring before October 1, 2002, would be subjected to the old law and those causes of action occurring after October 1, 2002, would be subjected to the new law.  He explained that if a doctor committed malpractice on the current date and injured a patient, that case would be considered under the prior law. 

 

Mr. Sharp stated Section 11, subsection 2, made a distinction that no action would be brought excluding certain minor claims more than 3 years after the commencement of the malpractice.  Chairman Anderson anticipated the section was included to avoid a situation of “ex post facto.”   He explained rules could not be changed one day and made to apply to an event that occurred at an earlier time.  He asked what would happen if a person received treatment from a physician in mid-September, the law took effect October 1, 2002, and where that case would fall if, in January 2003, the person decided the treatment he/she received in mid-September caused problems.  He asked if it would fall under the new fast-track system or, if the plaintiff found an attorney, would be placed under the review of the medical screening panel. 

 

Mr. Sharp replied it was his understanding that such a case would initially be filed before the screening panel and then once the law changed, that party would have the option of “opting out” of the screening panel.  Mr. Sharp stressed that currently a client had 2 years from the point they knew or should have known they were an alleged victim of malpractice and no more than 4 years from the date of the malpractice.  He explained traditionally there could be a difference between when an act was committed and when the client discovered they had been an alleged victim of malpractice.  The law had always recognized that the statute of limitations did not begin until a person knew they had a cause of action.  Currently, if the act of malpractice occurred in 1998 and the person did not find out about it for 5 years they could not bring a cause of action.  In Section 11, subsection 2, the bill would reduce the requirement that a complaint be filed no more than 4 years from the date of the malpractice to 3 years.

 

Mr. Sharp moved to Section 12, subsection 2, that was similar to Section 8.  That section set forth the type of medical testimony that could be provided in a courtroom.  Section 12, subsection 2, required any expert medical testimony to be given by a provider of medical care who practiced in an area substantially similar to the type of practice engaged in by the defendant at the time of the alleged negligence.

 

Chairman Anderson asked if Section 12 completed references regarding the screening panel.  He asked Mr. Sharp to step away for a few moments to hear testimony from the Nevada Dental Association regarding the screening panel.

 

Dr. Maury Astley, Executive Director, Nevada Dental Association, testified that the main damage done by A.B. 1 was in Section 35, where the medical screening panel was actually deleted.  He expressed appreciation that dentists had been included in the discussions of the medical malpractice issue although they were not currently having the same degree of problems experienced in the remainder of the medical community.

 

Dr. Astley urged the committee to retain the medical screening panel.  He stated about 150 to 200 cases per year went through the medical screening panel and approximately 7 or 8 of those cases were dental in nature. 

 

Dr. Astley stated the dentists felt the screening panel was working for them in preventing frivolous lawsuits and served to direct people to a peer review committee for dentists.  He stated many people went to the peer review committee first, although they retained the option of being heard before the medical screening panel.  Further, neither members nor patients had complained about the process of the medical screening panel.  He requested if it was not feasible for the remainder of the medical community, that the screening panel be retained for dentists.

 

Chairman Anderson stated he had been very supportive of adding dentists to the screening panel. He asked if the screening panel was deleted, whether the dentists would not still experience the same speedier resolution that it was hoped the legislation would bring to the medical doctors.  If not, the matter would appear again before the legislature.  Dr. Astley stated he was hopeful that the process would be expedited under the bill for both the patient and the dentist, although dentists preferred retention of the screening panel because it had worked effectively for them.

 

Assemblyman Beers asked if oral surgeons were affected under the bill provisions.  Dr. Astley replied oral surgeons could hold either a medical or dental license dependent somewhat on the kind of work they performed.  He added that one insurance company covered most dental practices in the state and that company did offer coverage to oral surgeons if they were operating under their dental license.  If they were operating under their medical license, they generally went to a medical malpractice insurer.

 

Assemblyman Beers asked if oral surgeons would be included in the bill if they operated under their medical license.  Dr. Astley replied oral surgeons were covered under the bill in either case.

 

Assemblywoman Parnell stated she had not been uncomfortable with the language of the bill deleting the screening panel because doctors had stated it did take an extremely long time and added to the expense of a case to go before the screening panel.  She asked for clarification that that was not the case where dentists were brought before the screening panel.  Dr. Astley replied affirmatively, although he noted dental cases comprised only a small portion of the cases heard.  He added in the 3 years he had been part of the association, he had not heard any complaints through the dental association from patients dealing with the screening panel and the peer review committee.  Assemblywoman Parnell concluded she would hope the committee could look at separating the medical and dental entities with regard to the screening panel.  Chairman Anderson stated that would be a point for the committee to consider and Dr. Astley offered his assistance in working out a solution.

 

Chairman Anderson asked if anyone else was present who wished to testify on Sections 7 through 11 of A.B. 1.

 

Assemblyman Dini asked if dentists would fall equally under the provisions of Section 9 with physicians, regarding settlement conferences.  Mr. Sharp stated dental malpractice would be subject to mandatory settlement conferences.  Assemblyman Dini noted if the screening panel were abolished, the settlement conferences would still be an additional step for dentists before a case went to court.  Mr. Sharp agreed, noting dentists would also be subject to the fast-track system.

 

Assemblyman Dini asked if the provision of the settlement conferences and the fast-track system would offset the need for the screening panel.  Dr. Astley replied it was his understanding that those sections did cover dentists and was preferable to a long malpractice suit.  The dentists’ experiences were less involved to move through the medical screening panel than to go through a court process.

 

Chairman Anderson said the clear choice before the committee was that if the screening panel was eliminated in its entirety, then the sections dealing with fast track and settlement hearings would need to clearly apply to dentists as well as physicians.  Mr. Sharp agreed.  He noted the historical background of the screening panel was for medical malpractice and dental malpractice had been added at a later time.  He stated the complete elimination of the screening panel and replacement with the settlement conferences would provide a quick and perhaps less costly resolution for dentists.

 

Chairman Anderson expressed his feeling that all the committee members were sensitive to the dental issue and whatever the final solution was, it would apply to them.  The bill would not expand the medical professions that would have access to the screening panel, but at the same time it was not excluding anyone who currently had access to the panel.  Mr. Sharp agreed.

 

Mr. Sharp returned to explanations of A.B. 1, at Section 12, subsection 2.  He explained subsection 2 dealt with the use of expert medical testimony during trial with regard to medical malpractice and was similar to a complaint filing that required an affidavit from an expert in a substantially similar field.  There must also be an expert from a substantially similar field when a case went to trial.

 

Chairman Anderson referred to page 6, line 44, and asked, in light of testimony from the dental association, if dentists were excluded by the use of the term “medical expert” on that line.  Ms. Lang replied the section was acceptable because the definition of a provider of medical care included dentists.

 

Mr. Sharp related Section 13, subsection 3 of A.B. 1, dealt with periodic payments.  He explained the law was changed so that at the conclusion of a case the claimant might request periodic payment.  He explained when a case proceeded to trial and economic losses were present, typically future losses, an economist would be asked to testify as to the value of the loss and it would then be discounted to a present dollar value.  Then the jury would specify an award of the defined present value of the loss.  Under the bill, the claimant might request a periodic payment and the court, at its discretion, could order either periodic payment in the form of an annuity or by other means, such as a bond posted by the defendant, to secure the economic loss.  The purpose of the change was that if a claimant desired periodic payments, it would protect their ability to recover damages.

 

Assemblyman Hettrick noted he had been informed at one point that the doctors understood Section 13 of the bill was to allow for requests, with discretion of the court, by either party for periodic payments.  He asked for testimony from a physician that they were satisfied with the current form of the Section 13 language.  Chairman Anderson responded, Mr. Cotton, an attorney representing the physicians, had chosen to be elsewhere for other matters concerning the proposed legislation.

 

Assemblyman Beers asked if both houses were hearing the same bill and making amendments to it at the same time.  Chairman Anderson responded the Senate was hearing S.B. 2, and the Assembly was hearing A.B. 1, which had both begun with the same language.

 

Senate Bill 2:  Makes various changes related to medical and dental malpractice.

        (BDR 3-13)

 

Assemblyman Hettrick stated he had received an e-mail message that the Senate had amended the trauma center section of the bill, which would mean that section of the bill, which had already been voted on, would have to be revisited.  While both bills had been drafted the same, as testimony and actions moved forward, both houses were no longer looking at the same bill.  He stated that while Mr. Sharp was presenting the bill from what he perceived was agreed-upon language, it was possible the committee would need to go through the bill again with testimony from the doctors indicating agreement.  Chairman Anderson opined that each house was given an exact bill to introduce so that each house could proceed with what they felt was necessary to improve the bill, including a major element of medical error reporting that the Assembly felt was needed.  He stated the other option would be the exercise of the legislative power of subpoena, but that would likely delay the process even further.  His intent was to go forward with the testimony of Mr. Sharp rather than use the power of subpoena.

 

Assemblyman Hettrick stated he did not disagree with the Chair regarding review of the Assembly bill, however, he was concerned that without someone representing the physicians present to concur with the testimony being presented, the committee might need to re-hear certain portions of the bill again to assure accord on certain issues.

 

Assemblyman Dini agreed with the intent of the Chair to hear the Assembly version of the bill and amend it as necessary and move it to the Floor of the Assembly.  Then the two bills could begin to be compared and worked toward an accord. The Chair stated it was his desire to provide a forum for everyone who wished to speak on the bill to have an opportunity to do so and ensure the basic questions Assembly members might have on the bill were addressed.  He explained Mr. Sharp had been part of a meeting the previous evening with Mr. Bradley and Mr. Cotton to come to agreement on amendatory language. Chairman Anderson asked security staff to contact their counterpart in the Senate to ask one of the attorneys for the physicians to attend the Assembly Committee on Malpractice Issues and express their views.  The Chair recessed the committee at 3:46 p.m.

 

Chairman Anderson reconvened the committee at 4:04 p.m. and stated that some members of the committee had raised concerns regarding the agreed language for Sections 1 through 13 of A.B. 1 was perhaps, not the intent of certain interest groups when the legislation was drafted.  He thanked Mr. Sharp for taking the committee through Sections 7 through 13 of the bill.  He stated the committee was not trying to foreshadow what might be suggested, but rather, the existing language in front of the committee.

 

Mr. Gus Flangas, an attorney representing the Physicians’ Task Force, introduced himself for the record.  The Chair explained there were no suggested language changes in Sections 7, 8, 9, 10, and 11 of the bill.  Mr. Flangas replied the Section 7 language was agreed upon with the exception of the fact that there were currently 250 cases before the medical screening panel and they were concerned that 250 cases would be dumped directly into the court system all at one time.  It had been suggested in the Senate to stagger the movement of cases by allowing cases filed in a given month to be moved in a specific month.  He gave the example of cases filed with the screening panel in May of 2002 would be moved to the district court system in June and so forth.  He added it was not a substantive change of language in the statutes, but simply to aid the court system in handling the influx of cases from the screening panel.

 

Chairman Anderson stated he had been somewhat concerned about the issue of “ex post facto” and asked if a person had a case already on file, whether that person would have a reasonable expectation that their case would be heard before the medical screening panel.  Mr. Flangas replied it was his understanding that a claimant would have that right, however; the claimant would also have a right to “opt out” of the screening panel under the provisions of the bill.  Chairman Anderson confirmed a claimant could move to the new fast-track court system or choose to have the case remain in the medical screening panel.  Mr. Flangas agreed.  The Chair restated the concern of the Physicians’ Task Force that the court calendar might be inundated from cases moving from the screening panel.  Mr. Flangas agreed and noted allowing a staggered entry of cases into the court system could alleviate the concern.

 

Mr. Bradley testified if a claimant were to file a claim in the next 4 months with the screening panel and then “opt out” to the court system he was not sure how the situation would be handled.  He asked if the claimant would not be allowed to file a case with the screening panel or would the court refuse to handle the case for a while.  Chairman Anderson posed his earlier question of Mr. Sharp concerning a claimant who visited his/her physician in a non-emergency on September 20, 2002, and received treatment.  As a result of that treatment the claimant had some adverse reaction leading to other complications and to a determination of having had a misdiagnosis.  Since the treatment itself had taken place before the effective date of the statute what would the claimant’s options then become.  He stated testimony led him to believe the claimant would have dual options of either being heard under the medical screening panel or had the choice of moving into the new system of a court hearing.  He asked if that was correct. 

 

Mr. Bradley stated if a claimant sought treatment in September 2002, and did not realize an injury had occurred until after the effective date of the statute, and since the cause of action accrued before the effective date of the statute, it was their understanding the claimant could file his/her case with the court, but be heard according to the provisions of law in effect prior to October 2002. 

 

The Chair asked if a claimant had already filed a case, but the panel had yet to meet on the case and the October deadline passed, where the case would go.  Mr. Bradley replied the claimant had the option to “opt out” if a case was filed between the current date and October 2002.  The claimant would be required to file with the screening panel and then the claimant would be required to make a decision to “opt out” or go forward with the case before the screening panel.  A decision to “opt out” would require the case to be filed in district court and be subject to the fast-track rules, all under the law as it existed currently.  If the claimant opted to remain in the screening panel through completion of the case, the claimant would then have 30 days to file an appeal of the screening panel decision, if necessary, with the district court and still proceed under the pre-October 2002 law. 

 

Mr. Bradley stressed the question of accrual of an incident was very important because of the concern with the bill addressing certain retroactivity.  He stated his belief that the intent from all sides was not to infringe upon that retroactivity.  He added, Mr. Flangas’ testimony concerned if a claimant filed between the current time period and the effective date of the statute, there was a proposal to introduce the pending cases in a staggered system to the courts.  That would cause some delay in the fast-track system because of the 250 currently pending cases.  He stated he was not aware of the intent of the physicians on that issue.

 

Mr. Flangas stated language was presently being drawn up to address the staggered case option and when that language was finalized he would like to present it to the Assembly committee for consideration. 

 

Chairman Anderson specified A.B. 1 was introduced so that while the Senate was proceeding at its own rate on their bill, S.B. 2, through a Committee of the Whole, the Assembly Committee on Medical Malpractice Issues was dealing with any proposed amendments to the Assembly version of the bill.  Therefore, it was important that legal staff be made familiar with any kind of bill draft language that might be suggested.  He asked if there was currently agreed-upon amendment language addressing the issue of staggering the cases entering the court system.  Mr. Flangas replied he was not the person drafting the language, and that others were writing the draft at the present time.

 

Assemblyman Oceguera stated he had discussed Section 13 of A.B. 1 with Mr. Sharp during the recess and he would like to relate that discussion to the committee.  Chairman Anderson asked him to wait until Assemblyman Hettrick’s earlier concerns with Sections 7 through 11 were addressed.

 

Assemblyman Hettrick restated his concern that the committee should receive assurance that both the NTLA and the physicians agreed to the language of Sections 7 through 11 of A.B. 1.  According to Mr. Flangas’ testimony there was indeed a change in Section 7 that was forthcoming.  He asked if there was agreement by all the parties to Sections 8, 9, and 11.  Section 10 was simply a technical adjustment issue.  Mr. Flangas stated the interested parties were jointly discussing amendatory language for Section 7 and a draft would be made available as soon as possible.

 

Mr. Bradley stated the idea of staggering entrance of the 250 current malpractice cases into the district court system had been broached and seemed to have some merit and discussions were beginning from that point. 

 

Mr. Bradley stated he did have one small amendment to Section 9 that had already been mutually agreed to by all parties.  At Section 9, page 4, line 38, the bill discussed those who were mandated to attend a settlement conference.  The bill mandated the representative of the physician’s or dentist’s insurer and their respective attorneys. Language should include “physician’s, hospital’s, or dentist’s.”  He explained, if a case involved hospital or dental care those entities also needed representation at any settlement hearing.

 

Chairman Anderson asked the committee if there were any questions regarding Section 12 of the bill and hearing none, asked Mr. Bradley to continue with an explanation of A.B. 1 beginning with Section 13.

 

Mr. Bradley stated there were no changes proposed to Section 13.  The Chair noted Section 13 allowed payments to be made to claimants either in a lump sum or through periodic payments.  If periodic payments were authorized they were required to be paid through an annuity or by other means of a defendant posting an adequate bond.  He asked if that was fairly close to current procedures and Mr. Bradley confirmed that it was.

 

Assemblyman Beers stated it was his understanding that the periodic payments would be allowed by either a request of the plaintiff or the defendant and that the physicians had agreed to that intent.  He asked if there had been a change.  Mr. Bradley stated that had been correct in initial discussions, but the language had been changed to only pertain to the claimant.  Assemblyman Beers asked if the physicians had agreed to the change.  Mr. Bradley stated they had agreed.  Mr. Flangas also concurred on the language.

 

Assemblyman Brown asked if there were currently jurisdictions where either the plaintiff or defendant could make that request of the court.  Mr. Flangas stated he would have to research the answer to that question.  He added the state of California provided for periodic payments, but he was unsure whether that was at the request of the defendant, the plaintiff, or whether periodic payments were mandatory.  Assemblyman Brown said he would await the answer.

 

Assemblyman Beers stated presumably if a claimant elected to receive their settlement as a lump sum and lived longer than the actuarial tables, the claimant would actually lose money.  If a claimant selected to take the settlement as a periodic payment and lived for a shorter period than the amortization of the actuarial tables, he asked if they would lose that way as well.  Mr. Bradley replied if the settlement was taken in a lump sum and invested there might not be a loss.

 

Assemblyman Beers rebutted with his assumption that actual lump sum settlements were discounted for life expectancy.  Mr. Bradley replied when a settlement was projected over time it was discounted to present value and a lump sum awarded.  That money, if invested, would grow over time so if the claimant should die before the projected age, the properly invested funds would continue to grow for the heirs.

 

Assemblyman Beers asked if a claimant elected a periodic payment instead and then expired, whether the settlement would continue to be paid to the heirs.  Mr. Bradley replied guaranteed payments allowed continuation of the payments.

 

Chairman Anderson referred Assemblyman Brown to Volume 2 of the background material submitted to the committee on July 29, 2002 (Exhibit K), for an amendment to his earlier question.  He noted behind the National Conference of State Legislature tab on page 128, it listed the mandatory periodic payments required in various states.  He noted the document contained a breakdown of mandatory, discretionary, and main disbursements. 

 

Mr. Bradley stressed Section 13 of the bill was not really discussed between the parties when the bill was being put together.  It was a section Governor Guinn had requested and felt very strongly about.

 

Assemblyman Brown asked how attorney’s fees were paid in a malpractice settlement.  Mr. Bradley responded the attorney could elect to have their fees paid before the remainder of a settlement was used to purchase an annuity.  Assemblyman Brown asked what happened in a bonded situation.  Mr. Bradley noted in that case, attorney fees would be addressed as they were currently being done – based on the contingency fee contract – would be paid, and the plaintiff would receive the remainder of the award through a bond.

 

Mr. Bradley stated Section 14 of A.B. 1, contained a requirement that in odd numbered years for information to be provided from the clerks of the courts to the court administrator and ultimately to the director of the Legislative Counsel Bureau on the aggregate information compiled on such cases.  Chairman Anderson confirmed the information would be reported as an aggregate number.

 

Chairman Anderson acknowledged there were some concerns about the reporting requirements and Mr. Bradley agreed.

 

Mr. Bradley explained Section 15 was a section that the Governor regarded emphatically.  It required that district court judges receive appropriate mandatory training in the area of medical malpractice litigation.  There had been no disagreement on the language.

 

Assemblyman John Carpenter, Assembly District 33, testified regarding concerns related to Section 15 of the bill.  The Chair asked that his testimony be recorded verbatim.

 

I have some concerns in regard to the mandatory training for district court judges.  In the rural areas, in some of the districts there is only one judge and in many of the rural districts there were only two.  I do not know whether all the judges would go to training or whether there was a medical malpractice trial only once every 2 or 3 years.  It could work a burden on the judges if they had not been to the training and they would have to bring another judge in who had the training or it went to the situation where hopefully a trial was held before the judge that the person voted for and elected. 

 

I don’t know how this could get changed.  I guess I could see the reasoning where there was a family court judge experienced in that; or whether there would be a circuit rider judge to go around the rural areas to handle such cases.

 

Chairman Anderson stated he believed the current practice was for new judges to go through a level of training.  He requested Ms. Lang to explain further. 

 

Risa Lang, Principal Deputy Legislative Counsel, explained Section 15 required the Supreme Court, by rule, to mandate appropriate training so the language would allow the Supreme Court to make any adjustments necessary for the rural judges.  The bill did not actually dictate what training had to be provided or how many hours or how often training was mandated.  It only told the Supreme Court that the legislature wanted some type of training for judges hearing medical malpractice cases.

 

Assemblyman Carpenter stated:

           

The bill stated there was a rule for mandatory appropriate training for each district judge whose actions involved medical malpractice.  I don’t know how much would be involved.  If it was a couple days or something, that would be no problem, but if it was a lengthy training situation, it might present some problems in the rural area. Hopefully the bill would give the court discretion to have the training so that it worked in all areas.

 

Chairman Anderson acknowledged the problem in rural areas and suggested there was an equally large problem in Clark County, where there were 16 judges or more and where the majority of such cases were filed.  They would need to be prepared to handle the cases.  He felt the Supreme Court would consider the specific circumstances involved in its court rule.

 

Mr. Bradley explained Section 16 of A.B. 1.  He noted many years previous the trial lawyers had sponsored a bill that was passed and was called, “The Lawyer Pays.”  That bill provided if a lawyer engaged in a vexatious or frivolous filing or defense of such an action, the court could find the lawyer for either side personally responsible for fees and costs of trial.  A.B. 1 strengthened the law to change “that the court may sanction” to “the court shall sanction.”  He noted all parties agreed on the language.

 

Chairman Anderson confirmed the intent of the section was to mandate the finding against attorneys and stressed mandatory language was a big issue with certain judges.

 

Mr. Bradley requested that Sections 18, 19, 20, and 21 be briefed together.  The Chair asked for clarification of whether Mr. Bradley was suggesting the committee take a vote on those sections.  Mr. Bradley replied he would like to cover the explanation of the sections together because they were brief and there were no proposed changes to the language.  The Chair concurred after a poll of the committee.

 

Mr. Bradley apologized, stating there was one small change in Section 18.  He explained Section 18 was a new requirement for physicians and dentists licensed pursuant to NRS Chapter 630 forbidding practice of their profession without liability insurance limits of $1 million per person.  At page 10, line 25, the word “person” should be changed to “occurrence.”  Line 26 read “per occurrence.”  The word “occurrence” would be deleted and replaced by the words “in the aggregate.”  Mr. Bradley explained both of those changes mimicked language used in a professional liability policy.

 

Mr. Bradley said the same changes would need to be made in Section 25, lines 40 and 41, and also in Section 27, lines 47 and 48.

 

Assemblyman Beers posed a question regarding Sections 18 and 25.  He noted in Section 1, page 2, line 14, the bill talked about professionals licensed under Chapters 630, 631, or 633 of NRS.  Section 18 talked about those licensed under NRS Chapter 630.  Section 25 talked about those licensed under NRS Chapter 631 and asked if Section 27 needed to be changed as well.  Mr. Bradley explained the changes only made the same requirements for doctors, dentists, and osteopaths.  Assemblyman Beers confirmed that the same changes were needed at Section 27, lines 47 and 48.  Mr. Bradley agreed.

 

Mr. Bradley stated Section 19 contained the reporting requirements where the Nevada State Board of Medical Examiners shall be reporting information regarding disciplinary actions against physicians.  A report would be made in each odd-numbered year to the Legislative Counsel Bureau.  The language would increase confidentiality of information about individual claims.  He opined the concern could be worked out very easily.  He added, he did not feel it was ever the intent to prevent access to the Nevada State Board of Medical Examiners information to learn about a particular physician’s claims history as was made available under current practices.

 

Chairman Anderson asked if Section 19 was the area in which Assemblywoman Koivisto had concerns.  He suggested the committee continue its review of Section 19 before amendments were proposed.

 

Mr. Bradley testified that Section 20 of A.B. 1 required holders of a license to practice medicine to submit a list of all actions filed or claims submitted to arbitration or mediation for malpractice or negligence against them during the past 2 years.

 

The Chair called witnesses to the table who had concerns regarding Section 19 of the bill.

 

Mr. Edward Goodrich, representing himself, provided his background to the committee.  He was neither a doctor nor a lawyer.  He explained he was the son of a general surgeon and although there were many superb doctors in the world; as he was growing up he heard about lawyers and malpractice suits every day at the dinner table and the pain it caused physicians.  He also heard and witnessed how the medical community converged and protected each other when threatened with litigation.

 

Mr. Goodrich testified that as an adult he personally experienced a malpractice situation.  He went to a hospital with chest pains.  His electrocardiogram was normal.  A blood enzyme test was not run and his doctor diagnosed indigestion and sent him home.  He explained he was sick for 3 or 4 days.  Later, at his annual physical, his doctor told him he had had a major heart attack.  Subsequent examination revealed that he was approximately 50 percent disabled because of his heart.  He also had an aneurysm (ballooning of the left ventricle) and if that burst he would die within a few minutes.

 

Mr. Goodrich explained he chose not to file a malpractice suit because he was comfortable in the knowledge that, should he file a suit, he would not necessarily get the care he needed in the future.  He would be refused treatment. 

 

Mr. Goodrich said that in his reveiw of A.B. 1 and hearing committee members express their desire to get to the heart of the crisis, he suggested the heart of the crisis was not necessarily establishment of limits on noneconomic damages. He noted the bill required a finding by a jury that a case represented “real” malpractice.  He added that meant a doctor made an error, either by their action or their lack of action, and left someone grievously disabled in some manner for the rest of their lives.  Mr. Goodrich opined the medical community, in an effort to protect their own, let such errors go unpunished, leaving it for a jury to determine punishment and discipline.

 

To appropriately consider noneconomic limits the legislature needed to get to the root of the problem.  It was his opinion that medical peer review boards did not have enough authority, incentive, or power to effectively police poorly performing doctors.  He suggested all other problems under consideration by the legislature branched from that root issue.  He asked the committee to consider the establishment of, or changing the licensing board into, a medical peer review board that had real authority to suspend or deny any doctor the practice of medicine while they were under investigation, the subpoena power to obtain records from other cases, and give the board the incentive to effectively police the profession, much as Congress had made heads of companies responsible for their actions recently.  He stated peer review boards were basically a governing and quality assurance authority.  He added, if the legislature could establish effective policing of the profession, then a balance would be struck between the competing interests in terms of noneconomic damages.  He concluded, if there were less “bad” doctors in the profession, then there would be less pressure for lawsuits and noneconomic limits.

 

Chairman Anderson acknowledged Mr. Goodrich’s position and stated he was looking forward to some of the potential whistleblower protections and medical reporting questions Assemblywoman Koivisto had sponsored in previous legislative sessions and had hoped would move across to the current bill.

 

Chairman Anderson asked Mr. Bradley to confirm Section 21 contained deletion language and Mr. Bradley agreed.

 

Mr. Bradley testified Section 22 of A.B. 1 contained reporting requirements for the insurers of malpractice and that of physicians to report actions filed and claims submitted to arbitration or mediation within 30 days after the disposition of the action or claim.  He noted current law established no time frame.  The section ensured that before information was forgotten or became stale, it was forwarded to the appropriate collecting agency.

 

Chairman Anderson noted the section also established a penalty against an insurer who failed to submit the required report.  Mr. Bradley agreed.  Mr. Flangas was in accord.

 

Mr. Bradley explained Section 23 would speed up the reporting to the Nevada State Board of Medical Examiners for a medical facility or school who became aware of a person who had become engaged in conduct that would entail a disciplinary action.  He added current law established no time frame and the bill would require a time limit for reporting of 30 days from the time a person became aware of such actions.

 

Mr. Bradley stated Section 23, subsection 2, established the same requirement when a physician’s privileges had been changed in some way.  Failure to report would result in a $10,000 fine.  Subsection 4 would maintain the confidentiality regarding any disciplinary action taken unless it was released by order of a subpoena.   The Chair noted it also mandated the 45 day time limit that the court clerk had to report to the medical board.  Mr. Bradley stated the section required a written report to the office of the court administrator.  Mr. Bradley reminded the committee, better information had been obtained from the court clerks in recent history and the bill provision simply ensured the information would be kept in a safe place where it was easily accessed.

 

The Chair asked if Section 24 removed the medical screening panel.  Mr. Bradley replied Section 24 did not delete the panel; it only deleted certain language arising from the screening panel.  He added removal of the panel was further on in the bill.  The Chair confirmed Section 24 was not a substantive change, but a technical change relative to the screening panel.  Mr. Bradley agreed.

 

Mr. Bradley informed the committee that Sections 25, 26, and 27 of A.B. 1 had already been discussed.  Chairman Anderson noted Section 25 required dentists to carry malpractice insurance in the amounts of $1 million and $3 million and asked if dentists were currently required to carry those amounts.  Mr. Flangas replied dentists were currently required to carry those amounts.  The Chair asked if the provisions would cause the dentists to increase their coverage.  Mr. Bradley replied agreement on the section was present when testimony was given before the Senate, but at the present time there was not agreement on the language of Section 25 in A.B. 1.  Mr. Flangas noted there was currently not an agreement on Sections 18, 25, and 27, which all addressed the limits of malpractice coverage required.

 

Chairman Anderson asked Mr. Bradley to explain the nature of the disagreement over the language of the three sections.  Mr. Bradley replied the physicians believed they should not be mandated to carry malpractice insurance.  Mr. Flangas agreed. 

 

Chairman Anderson asked for clarification of the matter as it was handled under current law.  Mr. Bradley replied that current law did not mandate the carrying of malpractice insurance.  Those sections of the bill contained information submitted by the Governor and agreed upon in the Senate hearing of their bill.  He added he had recently been notified that agreement no longer existed. 

 

Assemblyman Dini asked what percentage of physicians did not carry malpractice insurance.  Mr. Flangas stated he did not currently have that statistic.  Mr. Bradley stated, based on his experience, the issue was not so much the percentage, but the inequity that those not covered worked upon the physicians who did carry coverage.  When two doctors were involved in the negligent care of a patient and one carried malpractice insurance and the other did not because the “bad” physician did not have coverage, the financial burden fell on the good physician.  He added, the logic behind the agreement in the Senate was that the provision would actually help protect “good” physicians.

 

Assemblyman Dini asked how a doctor could afford not to carry malpractice insurance if he had any cases and “how many ‘dummy’ corporations a doctor had to set up to avoid their responsibility.”  Mr. Flangas replied, with all due respect, he did not believe doctors were setting up “dummy” corporations to avoid their obligations as a physician; in fact, it would run contrary to the law, because a corporation could not be established to avoid possible malpractice.  He added most doctors, if not all, did carry malpractice insurance and carried limits as high as they could afford.  He explained the current disagreement from the physicians was they did not want to be mandated by law to carry such policies because of the present state of the insurance system.  Setting of a minimum figure for insurance policies, with the present state of malpractice premiums, could cause doctors who had a claim against them to possibly not be able to afford $1 million and $3 million coverage.

 

Mr. Bradley added that when a physician applied for privileges at any of the hospitals he was aware of, the hospital privilege requirements included a provision that the physician maintain medical malpractice insurance in the amounts referenced in the bill.

 

Assemblyman Dini noted any physicians in the rural areas of the state, in his experience, who did not carry malpractice coverage, were those who did not stay around very long.  Mr. Bradley agreed and added it was unfortunate that those doctors were the ones who hurt the good doctors.

 

Chairman Anderson asked if it was true that the three trauma centers in the state required their doctors to carry insurance as a part of their privileges.  Mr. Bradley agreed.  The Chair noted not all the doctors working in trauma centers were medical doctors; some were osteopathic physicians.  Mr. Bradley replied all the physicians who worked in a trauma center typically had privileges, and if privileges were granted they were required to maintain insurance coverage.  The Chair concluded the number of physicians who did not carry malpractice insurance would be a very small percentage.

 

Chairman Anderson asked if there was concern stemming from the rising cost of malpractice insurance, in which some physicians would be caught without availability of an insurance carrier for a window of time.  Mr. Flangas replied the issue was not the availability of an insurance provider; rather it was the amount of insurance specified.  The Chair asked if the $1 million requirement was the issue and Mr. Flangas agreed.

 

Mr. Bradley continued his explanation of Section 28 of A.B. 1, which contained a reporting requirement from the Nevada State Board of Medical Examiners to the Governor and the director of the Legislative Counsel Bureau.  It required reports of disciplinary actions taken against osteopaths.  He added, all the sections dealing with reporting language were intended to ensure the requirements were the same for osteopaths and medical physicians.  He noted Sections 28, 29, 30, and 31 repeated the earlier sections for physicians and included the same fines.

 

Chairman Anderson noted Assemblyman Manendo had been out of the room and had concerns regarding Sections 25 and 27.  He informed Assemblyman Manendo the language in those sections had suggested amendments to agree with the language changes in Section 18 of the bill.

 

Assemblyman Manendo asked for clarification in Sections 25 and 27; that the language was changed to, “per occurrence.”  Mr. Bradley replied the language was changed to “per occurrence” and “in the aggregate” respectively.

 

Mr. Bradley noted while he was testifying before the committee on the reporting requirements, the representatives of the Nevada State Board of Medical Examiners were testifying in the Senate on some procedural issues that needed to be addressed regarding reporting requirements.

 

Mr. Bradley testified that Section 32 addressed potential grounds for disciplinary action by expanding the list to include failure to comply with the reporting requirements.

 

Section 33 cleaned up the language from Section 29 dealing with insurers reporting settlements to the Nevada State Board of Examiners.

 

Chairman Anderson noted the executive director and the general counsel of the Nevada State Board of Medical Examiners had just arrived.

 

Mr. Larry Leslie, Executive Director, Nevada State Board of Medical Examiners, introduced Mr. Richard LeGarza, General Counsel for the board, and Dr. Paul Stewart, Secretary-Treasurer of the board. 

 

The Chair explained the committee was reviewing Sections 29, 30, and 31 of A.B. 1 that established some medical reporting requirements over which it was thought there were some concerns by the physicians. 

 

Mr. Leslie testified the board had no problems with any of the reporting provisions and, in fact, were in favor of the reporting provisions.  The Chair said it had been his understanding perhaps some additional language was needed in those sections to ensure the board was getting the information necessary in a timely fashion.  Mr. Leslie replied the only recommendation made in the Senate had been to allow the courts to report the filing of medical malpractice issues to the board immediately instead of the 30 days specified in the bills.  He reported there appeared to be no appetite for that change in the Senate and the board felt the other reporting requirements actually strengthened the position of the board regarding discipline of physicians.

 

Mr. Richard LeGarza, General Counsel, Nevada State Board of Medical Examiners, testified regarding Section 23 of A.B. 1.  He noted subsection 3, paragraph E, required the court to report a physician who was found liable for malpractice or negligence to the board within 45 days.  Chairman Anderson confirmed he was referring to page 13, lines 6 and 7.  Mr. LeGarza agreed and noted the suggestion made in the Senate related to their understanding of the intent of the reporting requirements was to provide information to the Nevada State Board of Medical Examiners as soon as possible.  He noted the court reporting requirement was to occur after a judgment had been rendered and there had been a finding and specified that time frame would already occur approximately 4 years after the actual occurrence of malpractice or negligence.  The board’s suggestion to the Senate had been to require the courts to report to the board within 45 days of the filing of a case for causative action.  A similar requirement was already in place for the insurers and the physicians.  The Chair noted the draft amendment might address those issues.

 

Mr. Leslie reported the board had some input they wished to supply for Section 18 of the bill and the Chair responded that section had already been reviewed, but it might be revisited.

 

Mr. Sharp, representing the NTLA, explained Section 34 of A.B. 1 simply extended the reporting requirements to osteopaths.  He added the requirement addressed the insurance companies.  The Chair confirmed that section mirrored current law and Mr. Sharp replied it simply added osteopaths to existing requirements.

 

Mr. Sharp stated Section 35 repealed the medical screening panel.  Chairman Anderson confirmed that was the section that actually removed the screening panel and provisions were made relative to the stepped-in requirements earlier in the bill.  Mr. Sharp agreed.

 

Mr. Sharp said Section 36 specified Sections 1 through 6 of the act applied to a cause of action arising after October 1, 2002.

 

Section 38 specified the election process regarding plaintiffs “opting in or out” of the panel.  The Chair noted the final section specified the bill would become effective October 1, 2002, and Mr. Sharp agreed.

 

Chairman Anderson recessed the committee at 5:25 p.m. and reconvened at 5:52 p.m.  He announced he wanted to afford the same opportunities to any members of the Assembly that had been afforded to Assemblyman Carpenter to place their comments regarding the bill on record.

 

Assemblywoman Sharron Angle, Assembly District 29, testified concerning tort reform.  She expressed her support of tort reform for physicians and added she had heard from the public that tort reform was needed in other areas as well.  She stated some of those who had approached her included scuba diving instructors, operators of businesses such as Port of Subs, and contractors in the building industry.

 

She expressed her hope that A.B. 1 would be just the beginning of real reform in Nevada litigation.  Chairman Anderson agreed that we all lived in a litigious society.  He added “carpe diem” or the theory of “let the buyer beware,” was always one of the issues when dealing with tort. 

 

Chairman Anderson stressed when people dealt with a doctor, it was usually from a position of great trust and everyone expected “A+” care because of that trust.  While doctors might only need to perform at a “C+” level in the legal arena, the patients who placed their lives in the hands of doctors expected the very best.

 

Mr. Bradley referred to Exhibit H, which comprised a packet of newspaper articles and requested permission to read a few quotes from the exhibit.  The Chair stated as a part of the exhibit they would become a part of the record.

 

Chairman Anderson supplied a proposed amendment to A.B. 1 (Exhibit L) and introduced Assemblywoman Koivisto as the sponsor of the amendment.  He explained she had chaired the Assembly Health and Human Services Committee in the Seventy-First Legislative Session.  He asked her to brief the committee on the proposed amendment.

 

Assemblywoman Ellen Koivisto, Assembly District 14, explained the proposed amendment was modeled after the medical errors reporting system that had become effective in March 2002, in Pennsylvania.  Testimony before the present committee had indicated a need for a medical errors reporting system.  The Bureau of Licensure and Certification was unable to assess whether a medical error problem existed in Nevada because they had no data.  No agency or system in the state identified and tracked medical errors or adverse events.

 

Assemblywoman Koivisto stated in September 2000, the National Summit on Medical Errors and Patient Safety, along with testimony from the consumer perspective indicated the healthcare system was uncoordinated, confusing, and potentially dangerous.  One consumer recommendation from the summit was to examine how consumers were informed of a responsibility to report medical errors and whether regulating agencies even understood their own responsibilities.  It also defined the ethical responsibility and accountability of hospitals to patients who were victims of medical errors. 

 

She continued, it was stated and emphasized in the Institute of Medicine Report that most medical errors were system errors, not attributed to individual negligence or misconduct.  It suggested the key to reducing errors was to focus on systems of delivering care and not blame individuals.  System improvements could reduce error rates.  Research from the Agency for Healthcare Research and Quality documented the rate of healthcare errors was far higher than the error rate in other industries.

 

Assemblywoman Koivisto testified errors occurred due to poor system design and organizational factors similar to any other industry.  Healthcare workers were placed in systems and settings where errors were bound to happen.  Systems were designed to achieve a particular set of goals that inadvertently produced a certain level of errors.  She explained healthcare workers were sometimes expected to work 24-hour shifts to ensure patients were cared for and received a continuity of care. 

 

She stated the awareness of the problem of medical errors and any subsequent solutions must be improved not only among physicians, nurses, pharmacists, dentists, and other healthcare providers but also among patients, policy makers, and many other stakeholders of the healthcare community.  She suggested a cultural change needed to take place to allow the stakeholders to talk about errors and recognize that errors were mostly a part of faulty systems and system designs, not individual failures. 

 

Assemblywoman Koivisto stressed the public expected and had a right to information that would demonstrate the healthcare delivery system was as safe as possible.  Data and information was needed in support of efforts to learn why errors occurred and what changes would help to prevent them.  Both needs could only be met through the development of an effective data collection system.

 

Assemblywoman Koivisto explained portions of the amendment, (Exhibit L) beginning at page 9.  She stated it provided any report or information was made available only in an aggregate format and would not identify a specific person or medical facility.  Any report, recommendation, or other information was not admissible in evidence during any administrative or legal proceeding.

 

Section 41, Page 12 specified no person was subject to any criminal penalty or civil liability for liable, slander, or any similar cause of action in tort, if they, without malice, reported an incident or serious event.  She added, the language of the remainder of the reporting requirements followed that provision.

 

Assemblywoman Koivisto stated people who reported incidents, or whistleblowers, were protected against retaliation in subsection 2, page 14.  A person who reported an incident and was retaliated against also had the right to report the retaliation.

 

She suggested the committee would hear the protections were unnecessary because facilities already reported to the Joint Commission on Accreditation of Healthcare Organizations  (JCAHO).  She acknowledged that was true, because facilities that provided Medicare and Medicaid services had to be accredited under JCAHO.  However, JCAHO had a voluntary form of self-regulation for which hospitals paid a fee.  The reporting system required in the proposed amendment to A.B. 1 would be a mandatory reporting system.

 

She asked the committee to consider that since 1995, JCAHO had reviewed reports of 1,745 sentinel events from nearly 5,000 hospitals accredited by them.  In comparison, the New York mandatory system received more than 21,000 reports in year 2000 alone.  Assemblywoman Koivisto said mandatory systems were intended to assist states in fulfilling their legal responsibilities for facility licensure and oversight.  The public looked to government to ensure the healthcare system took necessary steps to assure care safety.  She suggested states had already yielded considerable oversight by accepting JCAHO accreditation surveys as full or partial compliance with state licensure requirements.  She added, reporting provided states an important window into hospital patient safety activities and system weaknesses they might not otherwise have.

 

Assemblywoman Koivisto stressed medical error reporting should not be, and in the amendment, was not, a punitive system.  She added the purpose of medical error reporting was to find where problems existed in the system and fix them so errors did not reoccur.  Reporting was a patient safety issue.

 

Chairman Anderson reiterated his desire to allow opportunity for anyone with a desire to do so, to appear before the committee. 

 

He noted the Legislative Counsel Bureau, Legal Division, had provided the committee with copies of “A Breakdown of Medical Error Provisions” (Exhibit M).

 

Assemblywoman Buckley told the committee that when the Governor and the Majority Leaders from the Senate and the Assembly were creating the template for the legislature to consider, their discussions included the fact that the prevention of medical errors was an important component of any piece of legislation that might be passed.  Everyone had agreed the Pennsylvania model of error reporting, in his or her opinion, was the best model to follow.  She added a few hospitals had indicated concerns with the whole system of medical error reporting and that they would like certain aspects changed.  Leadership had agreed to try to work with the representatives to somewhat modify the requirements.  Everyone felt if medical errors were prevented malpractice insurance premiums would be greatly reduced.

 

Chairman Anderson concurred that in the interest of public safety, medical error reporting and prevention were clearly important.  He noted Assemblywoman Koivisto had indicated representatives of the Nevada Nurses’ Association had testimony in support of the amendment regarding whistleblower provisions they wanted to place on the record.

 

Ms. Lisa Black, representing the Nevada Nurses’ Association, presented what her organization felt were key points of the protections.  She stated it was imperative for some type of medical error reporting system in Nevada to identify system failures that contributed to medical errors in the care environment.  The Nevada Nurses’ Association wholeheartedly supported the bill as written.

 

Ms. Black stated one concern was that whatever reporting system was established, it must provide protections for those who reported medical errors.  She explained that as much as whistleblowers were perhaps not politically correct if healthcare workers who reported errors did not have protection, errors would simply not be reported.  She added A.B. 1 included fairly significant protections for those who did report errors. 

 

In terms of follow up, one important point in the bill was that through the central repository created, employees who reported errors would be ensured protection.  It could be said that retaliatory action was not allowed, but the bill would provide a mechanism to determine if retaliatory action had taken place.  It would also help determine if healthcare workers were being sanctioned in terms of licensure because they had reported an error.  Also, and most importantly, follow up would determine if the healthcare worker who reported an error had seen any remediation to reduce that error. 

 

She noted there had been some discussions on whether there would actually be a central repository or whether the agency reported to would fall under another existing agency or board.  The association felt strongly that the unit created should be a completely separate entity from any already in existence.

 

Chairman Anderson stated, in terms of supporting the record, if Ms. Black had written testimony it should be submitted very soon.  He directed the secretary to leave the record open for the written testimony of Ms. Black, which was submitted later in the day as Exhibit N.

 

Ms. Carin Ralls, Operators’ Union 3 and a registered nurse, expressed the union’s support of the amendment to A.B. 1.  Medical errors did need to be reported without the fear of retaliation.  Nurses would not have to consider their livelihood before making a report.

 

Mr. Bill Welch, President and Chief Executive Officer, Nevada Hospital Association, testified the association had not had an opportunity to completely review the amendment.  They hoped to find some collaborative language that would address the issues raised by Assemblywoman Koivisto, as well as those of the hospital community.

 

Mr. Welch expressed concern regarding:

 

·        Compromising the confidentiality process within a hospital setting;

·        Potential compromise of the peer review process which hampered the hospital’s ability from a risk management standpoint;

·        The proposal was duplicative of the current voluntary and mandatory reporting processes; and

·        The proposal was extremely costly, not only for the healthcare community and organizations, but for state agencies that would be tasked with additional oversight authority.

 

Mr. Welch related testimony had indicated the reporting requirements were important in the reduction of medical error occurrences; however, in testimony in interim committees, studies from a number of states with mandatory medical error reporting were presented.  He had asked questions and conducted research to attempt to determine what medical error mandatory reporting systems had done to reduce the occurrence of medical error incidents.  He had not found any study indicating mandatory reporting measurably reduced the occurrence of medical errors.

 

Mr. Welch stated that finding led to a discussion of cost versus benefit.  He said the committee should recognize that the requirements would produce a costly process that would be borne by all entities, including the patients.  He questioned the ultimate value of the requirements.  Hospitals were very concerned about the quality of care and the safety of patients in their facilities.  Testimony in prior legislative sessions and during interim studies had addressed the concern.

 

Mr. Welch offered to provide his written testimony and a summary of testimony that had been presented over the previous 6 months on the mandatory medical error reporting issue.  He stated the overall testimony demonstrated the voluntary reporting processes already in place in hospitals were intended to attempt assurance of safe, quality patient care.  He offered to provide copies of the forms used, the policies and procedures, the studies developed, and the plans for correction developed from the process.  He acknowledged time would not likely permit legislators to do a thorough review of the material, but expressed the hope it could be scanned before final decisions were made.  The documents were later provided as Exhibit O.

 

Mr. Welch stated as testimony was presented to the interim subcommittee, the subcommittee reached the conclusion that mandatory reports did not demonstrate a measurable value for Nevada.  However, understanding that issues and concerns had continued to be raised, he stated the association had, over the past 24 hours, tried to gather representatives from the entire hospital community to develop language they could work with.  Discussions had led to almost agreed-upon language, however, the bill and amendment presented to the committee was far more extensive than the association had been led to believe so he was not prepared at the present to provide any specific amendments.  The format they had used was different than that which had been presented to the committee.

 

Mr. Welch explained that those involved in the discussion group had not been aware of certain components presented to the committee.  He stressed their group would continue to work on an accord document to find a reasonable middle ground.  He assured the committee the Nevada Hospital Association was equally, if not more, concerned about safe, quality care because they would ultimately be the ones held responsible if that care was not present.

 

Chairman Anderson expressed his appreciation of the hard work Mr. Welch and those he represented, including the rural areas, were doing to review the reporting and medical error questions.  He concurred with Assemblywoman Buckley’s comments on the proposed amendment before the committee.  He noted he had heard earlier testimony on the question in another committee, he had similar concerns, and had been approached by several individuals who questioned whether the Nevada State Board of Medical Examiners and the reporting requirements were sufficient to guarantee patients quality care.

 

Mr. Welch replied the members of his group were working on proposed language and would continue to do so and return with their proposals for the committee.  Chairman Anderson acknowledged the Chair would leave the record open for Mr. Welch to submit materials to be included in the record up through 10 a.m. the following morning.  Documents were submitted on the morning of July 31, 2002, and included in the record as Exhibit P.

 

The Chair opened the hearing for committee questions of Assemblywoman Koivisto.

 

Assemblyman Hettrick asked how long the Pennsylvania model of reporting had been in effect.  Assemblywoman Koivisto replied the Pennsylvania bill was passed in March 2002. 

 

Assemblyman Hettrick referred to the amendment (Exhibit L), page 3, Section 30, subsection 3, which stated, “The administrator shall prescribe . . .” He asked who the administrator was employed by.  He asked if it was the administrator of the repository, the administrator of the Nevada Board of Medical Examiners, the Health Patient Safety Office, or to whom the section referred.  Assemblywoman Koivisto replied it was her understanding the administrator would probably be the administrator of the repository.

 

Assemblyman Hettrick stated the question was not a major point until he read Exhibit L, Section 32, subsection 4, page 5, where it stated, “The administrator determines necessary . . .” Section 3 stated, “The repository shall . . .” and he asked how the administrator was determined to be qualified to require certain reporting. 

 

Assemblywoman Koivisto stated the amendment required the administrator of the Health Division, Department of Human Resources (DHR), to prescribe the method of notification.  Assemblyman Hettrick said he presumed that meant the administrator worked for the Health Division, DHR.  He asked if the amendment would depend on regulation to assure the administrator was qualified to perform some of the required duties such as determining necessary or advisable provisions of additional services.  The amendment stated the repository “shall” conduct an evaluation of the recommendations.  He noted the amendment did not identify whom in the repository would be responsible for conducting an evaluation of the recommendations.  The Chair stated that portion of the amendment was cross-referenced to Section 35 of A.B. 1, which dealt with those specifications.

 

Assemblywoman Buckley explained, as had been stated by Assemblywoman Koivisto, the LCB Legal Division had designed the amendment to be similar to the Pennsylvania legislation.  The intent was for the administrator of the Health Division, DHR, to establish the guidelines and contract out duties.  She noted the “Medical Error Provision Summary” (Exhibit M), Section 32, page 2, required the Health Division, DHR, to contract with impartial persons, probably using a regulation process and possibly a request for proposal (RFP) to ensure that the body was independent and possessed the proper qualifications to conduct the determinations.

 

Assemblywoman Buckley further explained, the intent was rather than create a whole new state bureaucracy, the requirements would be contracted out.  She noted a comparison of the Pennsylvania statutes used the term “authority” because that term was heavily used in the East.  The term “repository” was used more often in Nevada statutes.

 

Assemblyman Hettrick agreed the process would likely be established through regulation and reiterated that in Section 38, subsection 2, page 9, of the amendment to A.B. 1, it stated, “The administrator, by regulation, shall prescribe the contents of a patient safety plan.”  The draft did not address what qualifications would be required of the administrator.

 

Assemblyman Hettrick stated he had some concern for the definition of the term, “incident,” and he would like to see that tightened up to be clearer than stating, “ . . . cause the patient to suffer an unanticipated injury.”  The current language seemed to require the reporting of even very minor events.  His concern was that the terminology was so broad a person could be accused of not reporting an incident.  Also, some of the reporting under the current language would be so meaningless that it would simply make “busy work.”  He stressed the amendment had some potential, but it needed to be tightened up as much as possible.

 

Chairman Anderson remarked he had heard discussions of the amendatory language previously, and the idea that made the most sense to him was that workplace safety needed to become a standard without being a threat; thus, a reporting requirement that was not threatening to the reporter was absolutely essential. Also, the “near misses” of those things that were medically harmful were in the same category and increased the possibility for the elimination of some of the medical errors that happened.

 

The Chair stressed if a system only required reporting of those incidents that were serious, the process moved from being proactive to reactive.  He suggested the most beneficial effect of the amendment was that it was a proactive piece of legislation for public safety.

 

Chairman Anderson called the physicians in the audience to the witness table.

 

Dr. Curtis Brown, Physician, testified he was a third generation Nevadan and was board certified in Emergency Medicine and worked at Washoe Regional Medical Center.  He related that testimony throughout the day had indicated the crisis was primarily in southern Nevada and from his viewpoint that was not the case.

 

Dr. Brown testified Washoe Regional Medical Center would see approximately 70,000 patients through their Emergency Department in 2002.  When he first started, approximately 11 years previous, the department saw about 55,000 patients.

 

Dr. Brown stated the malpractice insurance premium for his group of doctors increased 130 percent in the current year.  The previous year’s policy included a zero deductible provision and to keep the group’s rate within 130 percent of the previous year’s premium they had to accept a $125,000 deductible.  He explained his group had a very good insurance rating with no catastrophic cases in the $8 to $10 million range.  He noted his group included 14 full-time equivalent physicians.  He concluded his testimony stating the things happening in Las Vegas were happening in Reno as well.

 

Assemblyman Beers asked when Dr. Brown’s group had found out about the 130 percent increase in their malpractice premium.  Dr. Brown explained the group had belonged to the St. Paul Insurance Company and when they no longer insured within Nevada, the group started looking for new coverage, knowing their premiums would likely be higher.  He stated there were not many companies to choose from and the options for his group were either to move out of state, or find someone to insure them.

 

Assemblyman Beers asked in what time period the group had known about the increase in their premiums.  Dr. Brown replied the group had changed insurance companies in March 2002.

 

Dr. Paul Stumpf, a General Surgeon, testified he had practiced in Reno for the past 8 years and was both board certified by the American Board of Surgery and by the American College of Surgeons.  He concurred with Dr. Brown that a problem existed in northern Nevada, as well as southern Nevada. 

 

Dr. Stumpf stated in 2001 his malpractice insurance premium was $21,000 per year for $2 million/$5 million policy.  As of 2002, the carrier, Interstate Insurance Company, a smaller company, informed his group they were also leaving the state in the early spring.  The group had to locate another carrier in a short period of time and their current malpractice insurance premium was $57,000 for each partner in the group – a rate increase of 150 percent.  The new policy only carried $1 million/$3 million limits with a $50,000 deductible.  For his 10-member group the total premium was over $375,000 per year, not including each physician’s need to hold $50,000 for the deductible to cover them in case a suit was brought against them.

 

Assemblywoman Parnell asked Dr. Stumpf if his group had received a quote at that point in time from the Nevada medical liability group that had just been created.  Dr. Stumpf replied the group had researched the new agency and felt there was some question about how it would be put into effect; and with issues about the risk pool being generated they elected not to access that option.  Additionally, because there were several pending malpractice claims within the group, they had to beg for a company to insure them.  Eventually, through the urging of their insurance agent, their insurance company had agreed to the new rate.

 

Assemblywoman Parnell asked again whether Dr. Stumpf’s group had ever requested a quote from the state liability group and Dr. Stumpf replied they had not.

 

The Chair expressed appreciation for the witnesses who spent the entire day in the audience of the committee and acknowledged their time came at a great sacrifice.  Also, he appreciated the profession they served and their dedication to their patients.

 

Assemblywoman Buckley stated legislators had been studying the relationship between some of the increased rates from new insurers against claims history, once the St. Paul Company had ceased coverage in Nevada.  She asked if either of the witnesses had malpractice claims against them personally that might have caused the new premium quotes to skyrocket.  Dr. Stumpf replied he had no claims against him personally, but because he belonged to a 10-member group who covered each other’s patients they received their rate based on the entire group.

 

Assemblywoman Buckley asked if his reply meant there were other claims against other members in the group.  Dr. Stumpf replied there were pending claims, but no settlements had been made.

 

Dr. Brown stated the claims factor had not affected the rates of his group, because they had no outstanding large claims against them at the time, nor had they had any large judgments against them in the past.  The rate reflected simply what they were able to find in the market available in the state.  He added, when his group was shopping for their new policy and the group could not go forward without medical malpractice insurance coverage, the state had not finalized its program.  Additionally, they would not have been able to practice within the hospital facility without malpractice coverage.

 

Assemblywoman Buckley ascertained whether Dr. Brown had any judgments against him personally.  Dr. Brown emphasized he had never had a judgment placed against him.  He explained the insurer had not looked at that issue; rather, the overall history of the group, which had been very, very good. 

 

Dr. Stumpf emphasized even other surgical groups in the Reno area, who were not with an insurance company that pulled out of the state, had been quoted 10 to 15 percent increases in their malpractice premiums across the board.  He noted some of the groups did not have a pending renewal date until in the late fall and were unsure what would happen with their premiums.

 

Assemblywoman Buckley related when the crisis first began looming in southern Nevada and several of doctors had issued statements they would be closing practices in the state, she had gone to the Nevada State Board of Medical Examiners and looked up their records, only to find they were some of the physicians with the most claims against them.  She had been curious whether rates went up based on claims history but acknowledged there were numerous doctors with spotless records who also experienced very high increases in their premium rates.

 

The Chair recognized Mr. John Yacenda, who had served as Chairman of the Subcommittee to Study a Reporting System for Nevada.

 

Mr. Yacenda testified his remarks would be based on his capacity as the chairman of the subcommittee.  He alluded to earlier testimony and stated his subcommittee had found that no research supported a reduction in medical errors as a result of mandatory or voluntary reporting requirements.  Mr. Yacenda commented the subcommittee also found that the hospitals and JCAHO facilities went to extreme efforts and concentration on patient safety.  With that said, there were a number of items in A.B. 1 that were very consistent with the research and finding of the subcommittee. 

 

Mr. Yacenda stated the subcommittee had issued a recommendation very similar to the proposal for a repository. 

 

·        Whistleblower protections in the bill were very consistent with testimony before the subcommittee; 

·        The aggregate data reports were very consistent;

·        The confidentiality of reported information – very consistent; and

·        Contracting out the repository for collection and analysis of data with a party outside the state agency – also consistent with subcommittee recommendations.

 

Mr. Yacenda explained there were several of issues based on the subcommittee hearings and considerations that raised issues with the bill.  The definition of an incident to be reported was found by the subcommittee to be very difficult.  The amendment language really referred to near misses and those were very difficult to qualify or define.  He provided an example that a near miss might be a patient on 5 milligrams of Coumadin a day and was given 10 milligrams one day, but given the proper dosage the next day.  That patient would be considered a near miss but the incident would probably never create a problem.  Therefore, that language in the amendment would probably need to be narrowed.

 

The other concern related to the process to be followed when recommendations, created by a contractor about medical practice, would be reported to the repository for subsequent review and then the repository would advance the review to the administrator of the Health Division, DHR, after they conducted a study of the incident.  He explained the whole issue was not that it was a bad process, but it would require highly skilled medical professionals at each review along the way.  He stressed decisions were being made about medical practice and what would happen in a clinical setting. 

 

Mr. Yacenda said that concluded his testimony regarding the proposed amendment to A.B. 1.

 

Assemblywoman Leslie referred to Mr. Yacenda’s example of a patient on Coumadin and noted that particular drug, at that particular time, might not have placed the patient in jeopardy at the time.  The problem was that differing amounts of a medication were being given because of something such as a nurse not being able to read a doctor’s handwriting.  The incident might indicate something worthy of a review and asked Mr. Yacenda to comment.  Mr. Yacenda responded, in fact, through the technological and system changes more and more hospitals were using, those kinds of mistakes were easy to prevent.  He asked why would they need to rediscover existing technology.  Assemblywoman Leslie rebutted the point and said the legislature wanted to ensure those technologies were being discovered and addressed and there was currently no such mechanism in place.

 

Chairman Anderson informed the committee that Mr. Anthony, Senior Research Analyst, provided information relative to the definition of “administrator.” In NRS 439.005 administrator was defined and the qualifications of administrator were further defined in NRS 439.090.  He commented the bill drafters had clearly anticipated the question that arose as a result of the proposed amendment.

 

Assemblywoman Buckley raised a point for the LCB Research and Legal Divisions to review concerning A.B. 1. The Chair agreed.

 

Assemblywoman Buckley referred to A.B. 1, page 13, line 8, that stated, “The board shall keep information received pursuant to this section confidential.”  She was unclear whether the statement was referring to information the clerk of the court was required to report in paragraph 3, because that information was already public record and therefore should not be made confidential.  She stressed it would not be the intent to keep public records confidential.  The Chair specified Assemblywoman Buckley was referring to Section 23, subsection 4, page 13, of the bill. He confirmed that section referred back to paragraph E in the bill and stated that was the question to be posed to the legal staff.

 

Assemblywoman Cegavske asked for clarification on the specific portion of the bill under question.  The Chair stated page 13, line 7, required the courts to submit information within 45 days to the board.  He asked Assemblywoman Buckley to clarify her question for staff.  She restated her question that Section 23, subsection 4 of A.B. 1 stated, “The board shall keep information received pursuant to this section confidential unless a court of competent jurisdiction issues a subpoena compelling the release of such information.” She believed the section was not intended to make any information not currently confidential to become so.  She stressed the intent of the legislation was not to add secrecy, but instead be more open with information.

 

Ms. Lang explained the provision was stated in both Sections 23 and 30 of the bill.  Section 30, page 15, was identical applying to osteopathic physicians.  She stated it would be simple to amend the language to clarify the sections did not apply to any information that was otherwise available to the public.

 

Assemblywoman Buckley clarified, if the change was made, would it make any information confidential that was currently open to the public, besides the court records.  Ms. Lang replied she did not think it would.

 

Mr. Robert Byrd, Chairman, Medical Liability Association of Nevada, explained that the quasi-state organization was providing medical malpractice insurance to Nevada physicians.  His background included 23 years as a chief executive officer and president of Nevada Medical Liability Insurance Company.  His responsibilities included final decision making for approximately 1,100 malpractice cases of any size and policy limits cases.

 

Chairman Anderson asked Mr. Byrd to address his position on A.B. 1 for the record:

 

I was asked July 29, 2002, by Governor Guinn to visit with the attorneys and physicians to answer a simple question.  Was the bill meaningful tort reform?  After it was described to me, my reaction was that it was meaningful tort reform.  By that, I mean after a period of time, and after it is tested, I expect insurers to come back into the market.  I expect the prices to come down; to what extent I have no way of predicting.  I do expect reductions in prices and an increase in competition.

 

Speaker Perkins stated, given the testimony the committee had received from Mr. Byrd, notwithstanding any of the remainder of the work the committee had done, and given the activities in the building at present, those comments might be the most important words heard recently.

 

Speaker Perkins asked Mr. Byrd, whose credentials were not in question, if he was confident in the statements he had just made.  He asked if Mr. Byrd was confident that, after a testing process of elements of the bill, that the malpractice insurance market would stabilize, rates would be reduced and competition would increase.

 

Mr. Byrd emphasized he felt quite confident in those outcomes.

 

I have heard remarks today that many representatives of the insurance industry, including actuaries, chief executive officers, and marketing representatives, have said this bill was not worth very much.  I would represent that there were probably not many of those individuals who had spent much time in the claims environment or in the claim management system.  If they did, they would find that this bill provided a much more level playing field. It provides predictability and it provides structure.  It is not perfect and it could be made a lot stronger, but overall, it is a very significant change and a quantum leap from where we are.  That is very important.

 

Speaker Perkins noted a person in almost any industry could have different opinions of a particular issue.  He asked if Mr. Byrd felt there were others in his industry that would concur with his opinion.

 

Mr. Byrd replied, if he were able to discuss the bill with them, they would be convinced the bill represented very meaningful tort reform.

 

Speaker Perkins had been discouraged earlier in the day, as he had heard a number of people in the halls talking about the bill and stating that Governor Guinn’s bill would not accomplish the things Mr. Byrd had stated would likely occur.  That seemed to create a firestorm among some of the medical community in Las Vegas.  If Mr. Byrd’s testimony could be imparted to those people to give them some comfort, it would be a major advance in the legislative process.

 

Speaker Perkins stressed, he had not wanted to come to the legislature and process a bill that was not going to accomplish the goals stated by Mr. Byrd and his comments were extraordinarily important to the Speaker.

 

Assemblywoman Parnell asked how many physicians in Nevada had taken advantage of Mr. Byrd’s quasi-state insurance program since its inception in approximately April 2002.  Mr. Byrd replied as of July 26, 2002, there had been 229 physicians covered representing approximately $5 million in premiums.

 

Mr. Jim Wadhams appeared on behalf of the American Insurance Association, which he explained was a trade association of property and casualty insurance companies, most of which were companies of the stature of Fireman’s Fund and Hartford.  Those companies did not typically write malpractice insurance.  He explained he had been asked to become part of the legislative process by the Governor, the Plaintiff’s Bar, the Defense Bar, and the physicians, because it was difficult to find local people who could compile or attempt coordination of information, particularly since the St. Paul Insurance Company pulled out of the state.

 

Mr. Wadhams said the insurance companies testified in March 2002, at a hearing convened by the Governor, that they were not interested in doing business in Clark County.  They had lost money and the market there had become unprofitable.

 

He assumed lack of predictability was what the committee was attempting to address to provide some satisfaction to physicians.  He quoted some physicians as saying they saw a light at the end of the tunnel.  In that light, it was his opinion that perception would be in the eye of the beholder. 

 

Mr. Wadhams stated in his first review of the bill, it was his opinion the bill represented a significant and a positive step in the process.  He stressed he was not an actuary, but simply a coordinator of information and attempting to obtain the information from carriers who were otherwise uninterested in the issue.  He had obtained information after he had been pressed in his Senate testimony about the tort caps in Section 5, regarding how much premium rates would be reduced as a result of the cap. 

 

Mr. Wadhams stated an actuary for one of the insurance companies indicated he felt the exceptions in the cap section of the bill mitigated any positive impact of the caps.  He stressed it was only one person’s view and did not change his own overall opinion that the bill represented a positive step.

 

Mr. Wadhams stressed that local companies controlled by local physicians had a commitment to understand the legal process, the courts, and the lawyers, and that seemed to be the primary prescription for success.  Mr. Byrd’s comments had to be accorded some deference because of his personal experience in the Nevada marketplace; and with no disrespect to the national and regional companies Nevada possessed a very small marketplace for them. Credibility had to rest with those who had conducted their business within the state for some period of time and Mr. Byrd fell in that category.

 

In conclusion, while there were issues within the bill, it was a positive step and it would represent a change.  Whether that was sufficient to please the physicians, he would have to defer to them.

 

Chairman Anderson explained one of the concerns of the committee in earlier testimony dealt with the reality that benefits from the legislation would not be seen immediately.  Although it would not be seen in the near future, passage of the legislation would send a clear signal that Nevada consisted of a predictable market for physicians.  Mr. Wadhams concurred.

 

Chairman Anderson asked Mr. Wadhams, from his experience in the insurance industry, what would represent a reasonable time period before possible movements in rates would be seen.  Mr. Byrd replied that several factors were involved.  It depended on the date the legislation became effective and how much time existed for current pending claims to be filed.  He suggested there might be a large influx of claims trying to beat the effective date of the law.  Once the industry was working within the parameters of the bill, after 3 years they should have a good idea as to the impact of the legislation.  The Chair noted that was consistent with earlier statements.

 

Assemblywoman Buckley said she had heard a comment attributed to an actuary discussing whether or not the cap in the consensus bill brought by the Governor would lower premiums.  In the course of the Medical Malpractice Interim Subcommittee, they heard time and time again that tort reform should not be passed with the expectation of lowering insurance premiums.  American Insurance Association executives were quoted as saying the industry never promised tort reform would achieve specific premium savings.  Instead, the interim committee was told tort reform would lead to a more stable environment in the future and perhaps future premium increases would not be as high.  They testified they could not promise premium savings, and in fact, in some states that did not have caps the premiums were higher than in states with caps and there were many factors that could contribute to high premiums.  She asked if that was a fair summary of the interim testimony.

 

Mr. Byrd responded that was exactly what the insurance industry had been saying.  He represented to the committee there was one principal reason they had taken that posture.  The companies had been under tremendous pressure to somehow predict, with a certain degree of reliability, how much premiums would go down if a specific type of legislation were passed.  They truly were not able to make that prediction until they saw how the legislation affected the market.  He could not criticize the current position of the insurance companies.

 

Chairman Anderson asked if there was anyone else in the audience that had any further new information or statements they felt must be placed in the record.  There being none, he moved back to committee discussion of the bill, noting they had already taken a vote to add a name to the sponsors of A.B. 1, and approved Sections 1 through 6.  He reiterated the proposed amendments to the bill from that point:

 

·        Section 9, page 4, line 38 add after the word “physicians” comma (,) hospitals, or dentists;

·        Section 18, page 10, line 25, “Not less than $1 million per,” drop the word “person” and substitute the word “occurrence”;

·        Section 18, page 10, line 26, “Not less than $3 million per,” drop the words “per occurrence” and replace with, “in the aggregate”;

·        Section 25, page 13, lines 40 and 41, change identically to those in Section 18;

·        Section 27, page 13, lines 47 and 48, change identically to those in Sections 18 and 25; and

·        The amendment (Exhibit L) as submitted by Assemblywoman Koivisto that renumbered Sections 18 through 39 as Sections 53 through 75 and added a new section following Section 17.  The amendment would not disturb Sections 18, 25, and 27.

 

The Chair asked staff for concurrence and expressed his concern that the amendment not conflict with Sections 18, 25, and 27 in terms of language and amounts.  He clarified those sections would simply be moved to occur later in the bill.  Ms. Lang agreed.

 

The Chair stood ready to entertain a motion adopting the Koivisto amendment and then to take an overall motion to bind the members of the committee to their vote upon the floor.

 

            ASSEMBLYWOMAN OHRENSCHALL MOVED TO AMEND A.B. 1

            AS WAS EXPLAINED BY THE CHAIR.

 

Chairman Anderson reiterated the amendments and clarified for staff the motion would not consider Assemblywoman Buckley’s clarifying language regarding public records.

 

Assemblywoman Parnell asked for clarification regarding the rules of the committee.  She asked if she voted affirmatively in the two motions to come before the committee, it would mean she would be bound to vote affirmatively on the floor to get the bill to a conference committee or moved to the Senate.   She stated that would not necessarily guarantee how she would vote when presented with the final piece of legislation. 

 

The Chair responded an affirmative vote for the amendment on the floor was not in any way binding on the legislator’s vote on the Floor of the Assembly.  A motion made to amend and do pass the bill from committee would be considered a binding vote on the Floor of the Assembly.

 

Assemblywoman Parnell clarified the affirmative vote on the second motion would be a binding vote only in regard to sending the bill to the conference committee or to the Senate.  The Chair confirmed an affirmative vote would not bind a future vote in a conference committee.

 

Assemblyman Hettrick expressed concern that the minority membership and perhaps some of the majority members would be more comfortable if they could vote to move the bill to the floor and then have the ability to see the reprinted amendatory language before a further binding vote.  Chairman Anderson stated it was an assumption of the committee he typically chaired, that bill draft language would clarify the language of Nevada law and if it did not express the intent when the reprint was viewed, questions were to be brought forward.  The short answer to Assemblyman Hettrick’s question was “absolutely.”  The intent was to move the bill to the bill drafters so they could work on the formal language that would become a part of the bill reprint.  He asked if Speaker Perkins agreed with that synopsis.  Speaker Perkins concurred.

 

ASSEMBLYWOMAN BUCKLEY SECONDED THE OHRENSCHALL MOTION.

 

THE MOTION PASSED UNANIMOUSLY.

 

The Chair stood ready to accept a motion to amend and do pass A.B. 1.

 

********

 

ASSEMBLYWOMAN KOIVISTO MOVED TO AMEND AND DO PASS A.B. 1 SUBJECT TO THE CONSISTENCY OF THE REPRINT LANGUAGE.

 

ASSEMBLYWOMAN LESLIE SECONDED THE MOTION.

 

Assemblyman Beers expressed encouragement from the testimony of insurance representatives who stated that the proposed legislation would in fact reduce premiums.  He stated his ultimate decision would be based upon whether the physicians had heard and believed the testimony before the committee.  He related he had visited a doctor’s office before traveling to Carson City and the doctor had told him that he was sitting on a job offer while waiting to see the outcome of the legislative session.

 

Assemblyman Beers asked for clarification that a vote in committee was not binding on the Floor of the Assembly, because he was comfortable moving the amended bill out of committee for purposes of additional discussion.  The Chair clarified “a vote here, subject to the reprint being correct, barring a few technical corrections, would be binding.”

 

Assemblyman Beers clarified that he had the ability to reserve the right to change his mind later in the process.  Research staff agreed with the Chair and Assemblyman Beers further clarified, that would leave him the option of abstaining from the vote in committee.  The Chair concurred that an abstention in the committee vote would make him a free agent on the floor.

 

Speaker Perkins stated he was pleased that the committee had arrived at a vote in such a short period of time.  He acknowledged a lot of time and energy had allowed that to occur.  He added the 18^th Special Legislature had been convened to reach just such a point and no one was present to satisfy any particular group of interests, but to serve the citizens each represented and he was of the opinion the bill met that purpose. 

 

Speaker Perkins was concerned that a number of physicians in southern Nevada appeared to have been duped by very large, and in his opinion, greedy insurance companies who had released much information to create fear within the community contrary to testimony before the committee.  He stressed passage of the bill would be a historic step in the state.  He noted research documentation he had been provided indicated the cap specified in the bill would become the fourth-lowest cap in the United States and thus he believed it represented meaningful tort reform.  He emphasized he for one, was happy to vote in favor of the product before the committee, knowing the members would end up in conference with the Senate with a package to address the crisis issue in the state.

 

Assemblyman Hettrick agreed with Speaker Perkins that the committee was making a large, positive step.  He did have concern that moves were happening very quickly, as they must, in attempting to deal with a crisis.  He stated at the present moment, for all members to be bound by their vote in the committee to support passage of the measure on the floor, was beyond what could be reasonably expected.  There was further information from the Governor and from the Senate his party members would like to consider before they committed to an obligatory vote on the Floor of the Assembly.  Based on the decision on Committee Rule 4, he would have to abstain from voting on the motion before the committee.  He in no way wanted his comments to be construed as a partisan step, rather that the members had the need to hear other information that might be proposed.

 

Chairman Anderson acknowledged the Speaker had reminded him, the committee could change the Committee Standing Rules (Exhibit J), which would require a two-thirds vote.

 

Speaker Perkins reported in consultation with legal counsel, the reason the rule was brought was to avoid unnecessary bill drafting and lengthening of the process.  The committee could still follow the spirit of the rule and allow members the ability to revisit their concerns on the floor and not violate Nevada Assembly Rule 42.  He opined it was allowable for the committee to take the vote and have a different opinion when they got to the floor.

     

Chairman Anderson accepted that, on the advice of legal staff, committee members were not bound to their committee vote.  He stressed any amendments to the bill could only go to the floor through the committee.  He stated members could vote their position any way they liked, but as a courtesy to the Chair and to the other members, the Chair should be informed, before a change in vote on the floor, of that intent.

 

Assemblyman Dini stated there was an informal, understood rule, that if a vote was changed the member, as a courtesy, should approach the Chair with their intent.

 

Assemblywoman Buckley stated she would be supporting the motion currently on the table.  She stated the piece of legislation before the committee was significant in its breadth, as it put Nevada in the forefront of preventing malpractice by requiring strict reporting of medical errors and a way to examine systems to ensure that healthcare was improved.  By adoption of protections for trauma surgeons, joint and several liability, and a balanced cap, the committee had done well for the citizens of the state.  She added, there would still be conference committees, and further opportunities to hear input.  She said the result could be that the measure under consideration would become a “best start” and they would hear other testimony that would encourage them to adopt further refinements to the bill, such as the earlier discussion regarding the intent not to keep certain information confidential. 

 

The cap was unique in that it capped small cases, but at the same time provided an overall cap so that the physician was only liable up to the limit of his/her insurance policy.  The balance achieved was very complex and not many had read it yet.  The legislative process would allow time for reading of the revised bill and provision of input to allow the legislature to make the best decision.

 

Assemblywoman Buckley noted she was pleased by the compromise proposal conceived by the Senate and the Assembly, and the Governor was on the way to achieve its goal.

 

Assemblyman Dini stated when the legislative journey began he had stated he wanted to see some meaningful tort reform and help physicians.  He added that rural areas had experienced a shortage of doctors over a long period of time and he would like to see Las Vegas and Reno areas not have a shortage of the necessary physicians.

 

Assemblyman Dini added he was not completely in agreement with the medical error reporting provisions. He expressed the hope in a conference committee that further work could be done with hospitals to result in something more workable for them.  He noted he could vote no on the motion, but he would not poison the bill because of a “no” vote from him.  The bill was on the right track.

 

Assemblyman Beers stated he had heard the previous evening similar comments to those made by Assemblywoman Buckley and he had walked away concerned that the bill would actually cap economic damages.  He noted it was easy on a first or careless reading of the bill to come to that conclusion.  He stressed that was not what the bill achieved and if it did, it would be a grievous injury to Nevada citizens.  He directed his next comment to press representatives and stated the bill would take analysis, thinking, and reading, because the bill represented a complex solution that sounded like it had never been tried before.  He was intrigued by the proposal; nevertheless, the key issue to him was the special interests he did represent, which were the citizens in his district, and he acknowledged the citizens were speaking very loud and clear on the issue.

 

Chairman Anderson opined the nature of the Assembly body was that they all were a special interest group representing their constituents.  He added that was why the members were sent to Carson City.  He felt very strongly that the Assembly members represented the voice of the people. 

 

Assemblywoman Ohrenschall thanked the Chair and all members of the committee for the free flow of discussions to best serve the people of Nevada.  She had begun by thinking that because of the time limits a meaningful discussion would not take place.  However, they had managed to hold meaningful discussions of all sides of the issues.

 

Chairman Anderson placed the Koivisto/Leslie amend and do pass motion of A.B. 1 of the special session to the Floor of the Assembly.  The only caveat on the motion was relative to the reprint of the bill.  He noted the committee was present in its entirety.

 

            THE MOTION WAS PASSED UNANIMOUSLY.

 

Chairman Anderson recessed the committee at 7:58 p.m.

 

Mr. Bill Bradley submitted a document entitled, “The Liability Insurance Crisis – Déjà vu All Over Again,” (Exhibit Q), which was not discussed.

 

The committee in its entirety reconvened behind the Bar of the Assembly at 9:49 p.m. for the purpose of adjournment with the intent to reconvene at 9:30 a.m. on July 31, 2002.

 

RESPECTFULLY SUBMITTED:

 

 

 

                               

Cindy Clampitt

Transcribing Secretary

 

 

APPROVED BY:

 

 

                                                                                         

Assemblyman Bernie Anderson, Chairman

 

 

DATE: