MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session June 21, 1995 The Committee on Judiciary was called to order at 8:00 a.m., on Wednesday, June 21, 1995, Chairman Anderson presiding in Room 332 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Mr. Bernie Anderson, Chairman Ms. Barbara E. Buckley, Vice Chairman Mr. Brian Sandoval, Vice Chairman Mr. Thomas Batten Mr. John C. Carpenter Mr. David Goldwater Mr. Mark Manendo Mrs. Jan Monaghan Ms. Genie Ohrenschall Mr. Richard Perkins Mr. Michael A. (Mike) Schneider Ms. Dianne Steel Ms. Jeannine Stroth COMMITTEE MEMBERS EXCUSED: Mr. David E. Humke, Chairman STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Patty Hicks, Committee Secretary OTHERS PRESENT: Jared E. Shafer, Clark County Public Administrator Dr. Mitch Keany, Nevada State Medical Association Jeffrey Whitehead, Nevada State Medical Association Frank Nemec, Nevada State Medical Association Janice Pine, St. Mary's Regional Medical Center Wayne Nippe, Sierra Health Services, Inc. Jim Wadhams, Representative, Nevada Dental Association Chairman Anderson opened the hearing on Senate Bill 414. SENATE BILL 414 - Makes various changes relating to public administrators, public guardians and other fiduciaries. Mr. Jared E. Shafer, Clark County Public Administrator/Public Guardian, described Sections 1 and 3 of the bill will require the statement, "having never been convicted of a felony", be added to the jurisdictional facts so it can be attested to in writing. Section 2 makes changes to clarify a very confusing statute in the probate section. It now would follow the normal form of sales and commissions of real property when using a broker. He submitted portions of written testimony (Exhibit C.) Mr. Carpenter asked if it meant a person convicted of a felony could not act as an administrator or a guardian. Mr. Shafer replied yes. He explained the law currently states a person can not serve if they have had a felony conviction but it does not require it be sworn to by the person which makes it more difficult to have the person replaced when a conviction record is found. Mr. Carpenter inquired if someone has had their rights restored can they act as an administrator. Mr. Shafer answered it has not been determined and described a case in which the person's record had been sealed but the court still removed them. Usually, if a person has had their rights restored, there is no proble; a problem occurs when it is between contentious family members. Chairman Anderson asked if the family member were a convicted felon they would not have priority to act for the deceased. Mr. Shafer stated they could not serve. He reiterated the issue is to put into the written petition they have not been a convicted felon. This is not information which is volunteered by a person proposed to be an administrator or guardian. Chairman Anderson asked if someone wanted to assign a person as their guardian who had a felony conviction they would not be able to and would have to find someone else. Mr. Shafer responded yes under the current law. Ms. Buckley interpreted there would be one exception when a person has their record sealed quoting NRS 179.285. She understood if the record was not sealed a person could not serve, but if it is sealed they could serve. Mr. Shafer affirmed Ms. Buckley's understanding. Ms. Steel asked if it is in the law why is it being put in again. Mr. Shafer answered the change was in the section dealing with what the petition must state. The question is not being asked and people [with felonies] are being appointed. Ms. Ohrenschall asked if there was another effect to the person; being subject to perjury penalties if they answer in the petition they do not have a felony conviction when they have. Mr. Shafer replied correct. Chairman Anderson closed the hearing on S.B. 414 and opened the hearing on Senate Bill 130. SENATE BILL 130 - Clarifies immunity from liability granted to volunteers of charitable organizations. Chairman Anderson turned the gavel over to Vice-Chairman Ms. Barbara Buckley during his absence from the Committee. Dr. Mitch Keany, Nevada State Medical Association, explained the purpose of the bill from the physician community's perspective. It is to afford the opportunity to the state's patients to benefit from charitable care by retired licensed physicians who could not provide the care because of the high cost of maintaining medical malpractice insurance. Bill Bradley, Nevada Trial Lawyers, noted the first reprint of the bill is missing the term "retired", Line 22, prior to the list of persons. All (Lines 22-25) should be deemed retired for the purposes of obtaining immunity under the good Samaritan statute. Dr. Keany added it would be consistent with the original intent; an active practicing physician would have malpractice coverage. Mrs. Monaghan wanted to know if it was the same as put into Assembly Bill 520. Dr. Keany replied it [language] had started out in A.B. 520 and based on the compromise by the Committee it was taken out of A.B. 520 because of this bill. He continued if it has not been taken out of A.B. 520 they would work to assure they would be consistent. Vice-chairman Buckley noted head-shaking that it was not taken out of A.B. 520. She noted they would follow-up on it. Mr. Carpenter asked if a physician/dentist retires if they were still licensed to practice. Dr. Keany replied yes as long as they maintain their medical license. Mr. Carpenter wondered due to the range of people being covered and his not knowing what happens to them after they retire. Dr. Keany stated he could not answer the question, except for physicians; the list was shorter when he first reviewed the bill. Mr. Bill Bradley also stated he could not answer the question. He thinks the original intent was only to apply to retired physicians. He suggested if retired physicians are covered in A.B. 520 then this bill be indefinitely postponed. Mrs. Monaghan was acknowledged as possibly able to answer Mr. Carpenter's question. She stated an inactive license can be maintained; continuing education units (CEUs) do not have to be kept up. To reactivate the education requirements must be met. Mr. Carpenter commented on why people might keep their licenses; maybe it can be looked at. Dr. Keany interjected the original A.B. 520 gave immunity to anyone licensed under Chapters 630, 632, or 633 (physicians, nurses, osteopaths.) It held them responsible for grossly negligent care. He thought the list is of all persons defined as health care providers. Mr. Carpenter felt more investigation is needed. Vice-chairman Buckley stated no vote would be taken on the bill today which would give time to obtain answers to the questions. Janice Pine, St. Mary's Health Network, voiced her concern about the word retired applied to everybody. She explained St. Mary's has two clinics, a dental program, and a parish nurse program for disadvantaged families where they rely on volunteer medical practitioners. She did not want the application of the bill based on being retired. Mrs. Monaghan asked why they would not be covered under current malpractice. Ms. Pine responded she did not know exactly how it worked. She stated if a nurse is working in a hospital the nurse would be covered by the hospital's policy but did not know how the nurse is covered if working for a physician or doing per diem work. Mrs. Monaghan commented a nurse normally carries their own even when partly covered by a hospital policy. Ms. Pine stated she was not prepared to answer the question but would find out. Mrs. Monaghan stated a nurse would be covered under their malpractice [policy] even when not employed. Mr. Carpenter asked if the volunteers received any compensation. Ms. Pine answered, to her understanding, they do not; she would need to verify it. Vice-Chairman Buckley closed the hearing on S.B. 130 and opened the the hearing on Senate Bill 531. SENATE BILL 531 - Provides evidentiary privilege for certain medical review committees. Dr. Mitch Keany, Nevada State Medical Association, described the basis for the bill extended back about four years when confidential quality assurance materials from a Las Vegas hospital appeared in a plaintiffs brief alleging medical malpractice. State statute, at the time, specified the material was confidential and not discoverable. The Supreme Court found although the material was not discoverable if it had been purloined or otherwise misappropriated, bypassing the discovery process, and entered into the record it would be admissible. This has had a chilling effect on internal quality review. The bill would give an appropriate degree of protection to allow reviews without fear. Jeff Whitehead, Nevada State Medical Association, testified the bill is consistent will the federal law, the Health Care Quality Improvement Act of 1986, 42 USC 11000.101. He referenced Subsection 5 which states, "There is an overriding national need to provide the incentive and protection for physicians engaging in effective professional peer reviews." They feel the finding of the Supreme Court in the Las Vegas case was inappropriate and the bill is to correct it. Mr. Goldwater stated he was in a bizarre position with the bill; his father, an attorney, represented a client in a malpractice suit and received peer review papers anonymously about the gross negligence of the doctor. He added he also works for a group of doctors and understands the value of a peer review and the importance of them being "frank" to improve abilities. He asked if the bill excludes an individual member of the review committee who may want to share the information of a doctor's gross negligence. Mr. Whitehead replied yes if the negligence is so gross and the patient finds person to testify.... Mr. Goldwater interjected it was not always the case; if the patient does not know or is indigent. Dr. Keany, speaking as Chief of Staff, Sunrise Hospital, testified the frankness of peer review requires the members maintain confidentiality within the hospital system which is part of the Act which protects as long as good faith is shown. He cited the possibility of a review member using knowledge as a way to mar the reputation of someone for their own advantage which he felt may have been the situation in the Las Vegas case. He stated the care issues in the case were a problem. His hospital will decredential people or limit their ability to practice if a situation is so egregious. He noted he has five years worth of depositions regarding persons who feel they have been wrongly limited by decisions of the committees. Mr. Goldwater wanted the other members [of the Judiciary Committee] to note the value of good open peer review. Wayne R. Nippe, Corporate Counsel, Sierra Health Services, Inc., noted part of his responsibility was to act as counselor to their peer review committees. They enthusiastically support the bill, particularly the provisions for HMO's and medical facilities. He continued the peer review committees rely on common law; attorney/client and physician/patient. The court cases seem to indicate in the absence of a clear statutory statement they can not guarantee the privilege would apply to entities such as theirs. Mr. Sandoval would like a clarification as previous testimony gave the situation of an unwitting disclosure of a peer review document versus the protection or a privilege. He wondered if the peer review privilege was based on common law or a statute. Mr. Nippe answered he thought the case was addressed to a specific statute with reference to a hospital. Mr. Sandoval stated he would like to get a specific citation. Mr. Whitehead interjected the privileges arise first and foremost under federal law because of the Act. The Las Vegas case dealt with [NRS] 49.265, an antidiscovery statute. As a result they discovered express privilege was needed. Mr. Sandoval asked if under the case the plaintiff's attorney would be able to seek discovery of the peer review. Mr. Whitehead answered the plaintiff's attorney could use them if they were somehow obtained outside of the discovery process. Mr. Sandoval inquired if he were a defense attorney and the plaintiff's attorney requested discovery he would rely on [NRS] 49.265 to say no. Mr. Whitehead responded correct. Mr. Carpenter asked what is the position of the trial attorneys. Mr. Bill Bradley, representative, responded they do not have a position on it. They recognize the appropriateness of peer review. Protected peer review is absolutely essential. It was surprising they let the document in at the Las Vegas case. Mr. Carpenter wondered if the bill would overthrow the Supreme Court case. Mr. Bradley answered yes. Mr. Anderson asked if the Committee would be affecting any cases currently in the "pipeline." Mr. Bradley did not know; perhaps Mr. Goldwater's [Senior] would be. Vice-Chairman Buckley closed the hearing on S.B. 531 and returned the gavel to Chairman Anderson. Chairman Anderson opened the hearing on Senate Bill 229. SENATE BILL 229 - Provides specifically for personal service of summons in civil action upon party who is outside State of Nevada. Senator Mark James testified this is a clean-up bill for summoning persons outside of Nevada to answer to civil complaints. The court needs the power to reach out, which the bill will give them. A mistake was made when the current statute was amended last session by leaving out the mechanism by which the service of due process is given. This is being put back in on Lines 5-11. Mr. Sandoval asked if there is an out-of-state defendant can they be served by means other than personally. Senator James responded yes. Any other means available can be used. Mr. Anderson inquired if this would add any expense to the state. Senator James answered no. He added it is a court rule now but would be better to have it in statute. Chairman Anderson opened a work session on Assembly Bill 722 to discuss an amendment (Exhibit D.) He called Ms. Morgan Baumgartner forward to answer questions which may arise from the amendment but not to give new testimony. ASSEMBLY BILL 722 - Makes various changes to provisions governing certified court reporters. Ms. Morgan Baumgartner, Attorney, Lionel, Sawyer and Collins, representing the Nevada Court Reporters Association came forward to provide answers to any questions. Chairman Anderson requested the Committee look closely at the amendment to be able to handle it today. Mr. Sandoval felt the break for a rate should apply only when the civil litigant is represented by a not-for-profit legal corporation or pro bono legal assistance program otherwise the private bar would be paying less than the courts or government. It would be appropriate for the legal assistance programs to get a lesser rate. Chairman Anderson asked even if it will be $.25 higher than they are now paying. Mr. Sandoval answered yes. Ms. Buckley stated she had discussed the possibility of the civil litigation being charged a lesser amount but Mr. Sandoval's comments are very appropriate and she liked the amendments. Ms. Ohrenschall wondered if a situation could arise when a private attorney may handle a civil case pro bono, but not through a legal assistance program and would he qualify for the special rate. Ms. Baumgartner understood most pro bono cases are filtered through the bar association and are sanctioned. Ms. Buckley thought they would be covered because the attorneys volunteer through the auspices of pro bono. Mr. Sandoval felt in those situations it would be appropriate for a private attorney to receive the break. Ms. Ohrenschall asked if the attorney would have to refer someone needing pro bono work to one of the organized programs; not just take the person as a client and still be able to qualify. Ms. Buckley stated (for Clark County) the attorney only needs to call the pro bono project. Chairman Anderson did not think pro bono can get a special rate under the current statute so it would be a change. Mr. Carpenter commented had some problem with the increase and wanted an explanation of Section 1, Subsection 1, Part B. Ms. Baumgartner explained `B' addresses the longer court days and after hours being kept by reporters in addition to their normal court day; an overtime fee. She continued with an explanation of payment structure of court reporters. Mr. Manendo asked what the effect was on local government. Ms. Baumgartner stated the counties did not send in separate fiscal notes but Clark County estimated per diem increase of $50,000 and page increase at about $169,000. Mr. Manendo inquired if this bill would be going to Ways & Means. Ms. Baumgartner responded no since it is only local government impact. Mr. Manendo added he had seen Ways & Means look at other bills with only local impact and wondered why it would not apply here. Chairman Anderson explained it is a choice of the Chairman of Ways and Means. Mr. Sandoval asked if Ms. Baumgartner had had conversations with county representatives regarding the fiscal impact. Ms. Baumgartner replied yes adding the amendments are a result of several conversations. They have negotiated the page rate and made technical arrangements with regard to the $30 overtime charge. She stated they are supportive of the court reporter's plight as this is the only way for them to obtain an increase of income. Chairman Anderson interjected the counties may be in a better position because of the extra copies they will be receiving; possibly to break even. Mr. Perkins asked when was the last increase made. Ms. Baumgartner answered the last increase was in 1989. ASSEMBLYMAN SCHNEIDER MOVED TO AMEND AND DO PASS ASSEMBLY BILL 722. ASSEMBLYMAN BATTEN SECONDED THE MOTION. THE MOTION CARRIED. Chairman Anderson closed the work session on A.B. 722. Mr. Batten asked if Senate Bill 475 was ready to be worked. Chairman Anderson responded not at this time. Ms. Stroth asked the status of Assembly Bill 86. Chairman Anderson responded it was sent back to the Committee and will apparently die in Committee. There being no further business to come before the committee, Chairman Anderson adjourned the meeting at 9:58 a.m. RESPECTFULLY SUBMITTED: Jacque Sneddon, Committee Secretary APPROVED BY: Assemblyman Bernie Anderson, Chairman Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary June 21, 1995 Page