MINUTES OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session March 14, 1995 The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:30 a.m., on Tuesday, March 14, 1995, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Senator Mark A. James, Chairman Senator Jon C. Porter, Vice Chairman Senator Maurice Washington Senator Mike McGinness Senator Ernest E. Adler Senator Dina Titus Senator O. C. Lee STAFF MEMBERS PRESENT: Allison Combs, Senior Research Analyst Lori M. Story, Committee Secretary OTHERS PRESENT: Paula Treat, Lobbyist, Peace Officers Research Association of Nevada Sgt. Todd Shipley, Board Member, Peace Officers Research Association of Nevada Lawrence P. Matheis, Lobbyist, Executive Director, Nevada State Medical Association Richard J. Cavell, M.D. David Sarnowski, Chief Deputy Attorney General, Office of the Attorney General Bill Bradley, Lobbyist, Nevada Trial Lawyers Association Robert H. Perry, Lobbyist, Nevada Trial Lawyers Association James Jackson, State Public Defender, Office of the State Public Defender The hearing began with bill draft requests made by Paula Treat, Lobbyist, Peace Officers Research Association of Nevada and Sgt. Todd Shipley, Board Member, Peace Officers Research Association of Nevada (PORAN). Ms. Treat begged the committee's pardon for the lateness of the bill draft requests and introduced Sgt. Shipley, who outlined the requests for the committee. Sgt. Shipley told the committee the first request for a bill draft deals with the police officers' bill of rights (section 1 of Exhibit C. Original on file in Research Library.), and was encompassed in Nevada Revised Statutes (NRS) Chapter 289. The second request is outlined under section 2 of Exhibit C and deals with peace officer powers. He reminded the committee of past efforts to "straighten out" and bring these powers under one definition. The proposal is "clean-up language" which is designed to uniformly address the definition of peace officer in statutes, he noted. One part of the proposed language affects a bill before the committee today, the Sgt. said, so there would be no need to continually expand or redefine who falls under the peace officer protections and definitions. The intent is to use the same definition throughout the statutes and to unify the application of that definition, he explained. He offered to answer questions from the committee. Senator James asked to clarify that the first request deals with changes under chapter 289 of the NRS. Sgt. Shipley responded in the affirmative. The chairman pointed out chapter 289 is not in the `jurisdiction' of the judiciary committee. Both Ms. Treat and Sgt. Shipley stated this was a recent change, as the committee has had chapter 289 "for years." Apparently, there has been a change, this session, and it was agreed the first request would be moved to the proper committee. As to the second request (section 2 of Exhibit C), the chairman called for a motion to request a bill draft. SENATOR ADLER MOVED TO MAKE A BILL DRAFT REQUEST. SENATOR LEE SECONDED THE MOTION. The chairman asked for some clarification as to the request: whether it should be encompassed in a single bill; and, what language was actually being deleted and inserted. Sgt. Shipley answered the senator's questions. THE MOTION CARRIED. (SENATOR TITUS AND SENATOR WASHINGTON WERE ABSENT FOR THE VOTE.) ***** SENATE BILL (S.B.) 130: Limits civil liability of providers of health care who volunteer their services for certain organizations. The hearing was then opened on S.B. 130. Larry Matheis, Executive Director, Nevada State Medical Association and Richard J. Cavell, M.D. took the floor to introduce this bill. Mr. Matheis told the committee this bill is designed to address a problem which is associated with health care reforms and their slow evolution. It is similar to statutes in other states, he said, which limit health care volunteers' liability under certain circumstances. With the rising number of indigent and underserved Americans, there is a great need to find ways to provide medical services to them, Mr. Matheis continued. Health Access Washoe County (HAWC) clinic is getting ready to open with its focuses on the needs of that sector of the population who are underserved, and the Community Health Centers of southern Nevada attempt to do the same in the south, Mr. Matheis told. These centers struggle to provide professional services through the use of retired and semi-retired doctors and nurses, a resource that has been seriously reduced over the last 15 to 20 years. A number of encumbrances have arisen which limit the potential for these volunteer services, the witness explained, one of which is the need for malpractice or liability insurance. When these professionals retire and close their offices, they allow their own malpractice insurance to lapse because it costs up to $20,000 per year to maintain. This high cost, and the stress from exposure to liability causes these professionals to be reluctant to volunteer, he stated. This bill requires they maintain their license and their continuing education, along with holding them responsible in cases of gross negligence the speaker said, and it covers only those services offered in nonprofit settings to poverty-level persons. Dr. Cavell spoke to the committee, offering them some of his personal background, including his experiences as a volunteer physician in countries abroad. He reminded the committee of the huge numbers of people who are forced to seek all their medical care in the emergency room, as well as the "selfish benefits" that are accrued to persons who volunteer. He iterated the reason most doctors go into medicine is in order to help others less fortunate. Retired health care professionals have much to offer, the doctor testified, and it will benefit everyone if the Legislature sees fit to foster their volunteerism through this bill. Dr. Cavell outlined in more detail the requirements of the bill, noting the volunteer doctors would be required to maintain their licenses in good standing, including fulfilling the necessary continuing educational requirements. This requirement will assure that no unqualified or out-of-practice physicians participate. Dr. Cavell stated, "I don't think my peers, although they are willing to take care of people without any compensation, are willing to expose themselves to the inherent risks of liability, which are both emotionally and can be financially devastating." He asked the committee to give the retired health care professionals an opportunity to donate their services to the state. He closed his testimony. The chairman asked for questions from the committee. Senator Adler stated in his interpretation of the bill, any hospital facility in the state would qualify as a nonprofit organization. Mr. Matheis responded the doctors would not be covered under the bill if they are under contract or on staff with any of the facilities. The senator asked if Blue Cross and Blue Shield is technically, under the laws of Nevada, a nonprofit organization, and would fall under the bill should they decide to open a clinic. Mr. Matheis agreed they are nonprofit, but it is unlikely they would open a free clinic. He emphasized that is not the intent of the bill. He stated this bill in intended to cover people only if they are volunteering time exclusively to help low-income people. Senator Porter outlined the three areas where the bill attempts to limit liability: 1) voluntary work with a charitable organization; 2) as a retired doctor, without liability coverage of their own; and, 3) only for indigent care. He asked if these individuals (retired health care professionals) volunteer their time to organizations, such as boy scouts, should their liability be limited there, as well. Mr. Matheis stated the bill is only for indigent care. Senator Titus asked if accepting Medicaid patients is a voluntary decision, and if services provided to Medicaid patients are covered under the bill. Both witnesses explained the doctors who voluntarily provide services to Medicaid patients are expecting compensation and, therefore, would not qualify under the bill. Mr. Matheis told the committee an example of the types of clinic the bill is designed to address is HAWC, which is being "set up" in Reno, where they may be able to use free, voluntary, retired physicians to provide some level of services for the indigent. Senator Titus asked if there has been a problem with lawsuits. Mr. Matheis stated there has been nationally, with a resultant "chilling" of the volunteer spirit among physicians or other health care providers to donate their time in a practical, direct assistance to indigent persons. They are willing to donate time to serve on boards or in other nonpracticing areas, but they are unwilling to risk the exposure that exists if providing health care without holding their own malpractice or liability insurance. Dr. Cavell explored for the committee the expense that is incurred in order for a doctor to provide insurance for himself ($20,000 for 1 year with an additional $20,000 to cover a 5-year "tail"). When a retired doctor, with no income is required to make such a major insurance purchase simply to donate his time, it becomes impractical, he said. Senator Titus asked if the witnesses expected many doctors to come forward and volunteer if this legislation is passed. Mr. Matheis replied: I think some will. And I think that will make things better. And if some do, one of the things that it does have an impact on is that others will now see that it is a desirable way to spend some of their time. And, as Nevada grows, we have a growing pool of retired professionals that were not here 10-15 years ago. We haven't figured out a way to tap into it. I think a lot of voluntary groups may see that pool out there and use this as a way of encouraging them to give their time. Senator Washington addressed a question regarding the actual wording of the bill, under section 1, subsection 1, lines 3 and 4. This wording in conjunction with section 2, subsection 2, lines 5 and 6, seems to mean that as a participant in a voluntary organization, the doctors will, indeed, be liable, as an agent of the organization. With some discussion, it was decided among the committee members the statute actually provides for the organization to be liable for the actions of the volunteers. Therefore, the organization would need liability insurance to cover the actions of the volunteers, it was concluded. Senator Washington offered a hypothetical situation involving a church, noting it is his desire not to have the charitable organization responsible for the actions of a volunteer. Mr. Matheis noted the current statute requires the organization be responsible, and suggested the Legislature would have to amend the statute to remove the liability from them. Under Nevada Revised Statutes (NRS) 41.485, the liability of nonprofit corporations statute, Senator Adler opined, doctors are already covered, and he said he felt there currently is no liability for the doctor who is volunteering his time. Mr. Matheis stated if that is the case, and the Legislature is willing to state it is the intent of the bill, perhaps new legislation would not be necessary. He explained it is the medical association's understanding that NRS 41.485 does not cover the doctors' liability. Dr. Cavell stated, as a physician and with the litigiousness of today's society, he feels that offering free medical care is much different than volunteering to drive a van for the senior center or some other less specialized volunteer capacity. He reiterated his need to have a more clear delineation of the doctors' relief from liability. Senator Porter asked the witnesses to provide the committee some concrete information of what, where, and who is involved in the clinics that provide the free care to poverty-level persons. Mr. Matheis provided the HAWC program as an example. As an insurance representative in "real life," Senator Porter wondered if the clinics would have malpractice insurance. Mr. Matheis replied, "Some do.... Some rely on the individual liability of the professionals on their staff." It was the senator's concern that even an indigent individual should be allowed the same protection against malpractice as a person who can pay for medical care. Senator Porter noted, for the record, that as an insurance agent he is concerned about any possible conflict of interest that might arise, if he votes on the bill. Dr. Cavell told the committee he feels that doctors, with the level of expertise required to perform their profession, needs some exclusivity in liability limitations. "Because there is just so much more potential for liability in this area, we need to be singled out," he said. Senator James wondered if the volunteer doctors would not want to have their own malpractice insurance to protect them, especially in cases of gross negligence. The senator asked if there has been a lawsuit against a volunteer health care provider in Nevada that has proceeded to a judgment. He said he has never heard of such judgments. Dr. Cavell offered it might be because there are few volunteers, due to the fear of liability. He said he, personally, would be willing to take some risk in regard to gross negligence, because he has confidence in his own ability. The chairman asked if there are any legal interpretations of the current statute that give a clear indication of what it is applicable to, and would help explain why doctors feel they are not covered under it. Mr. Matheis said doctors, as licensed professionals, are not considered as volunteers under the statute. The senator asked what case made the interpretation. The witness could not offer any specific response. Senator James stated, the language in the bill appears to put a greater burden on the doctors than currently applies under the existing statute. He noted they would be exposed for gross negligence under the new bill, which is an additional exposure when compared to the statute as it now reads, which requires acts that are "intentional, willful, wanton, or malicious." Mr. Matheis stated, "No. I wish that were the case," adding, "if the committee would like, then, to make it clear that `volunteer' includes a health care professional who is volunteering their professional services,...but apparently it is not." The chairman reiterated his understanding of the statute, and restated his desire to see any case which offers a contrary interpretation. Senator Adler told the witnesses he serves on the board to a homeless shelter that has a medical clinic. The clinic has a volunteer physician and a volunteer nurse practitioner, he told, and he has advised them the shelter is liable for their actions "as long as they don't do something that is completely outrageous." He added it is also his interpretation that, "if there is some negligence, the homeless shelter has to pick up the liability if there is any suit...and that they [the volunteers] are not liable." He did note that volunteer physicians, in his experience, work more in a health maintenance capacity, which has slightly less exposure for liability. Dr. Cavell pointed out two instances where it is likely the volunteer doctor would go beyond maintenance: 1) in prescribing medicine, and 2) in the case of prenatal care. Senator James told the witnesses there is an additional statute which has been pointed out to him that says,"even if you're a volunteer and you happen to be an officer or a director of one these charitable organizations, you are totally immune, unless there is intentional misconduct or fraud." Noting he is not their legal advisor, the chairman expressed his opinion that they are better off under a statute that requires they be malicious or intentional, rather than under one that adds gross negligence as a source of liability. He expressed his high regard for the intentions and actions of these volunteers. Mr. Matheis promised to provide the case law that declares doctors as outside the status of volunteer, but reiterated his willingness to stand by a clear expression of the legislative intent of the current statute as encompassing licensed professionals and doctors under the definition of volunteer. Senator James stated he feels that is the intent of the statute and offered that the statutory definition of charitable organization as including a licensed medical facility. Therefore, a volunteer to a charitable organization means a volunteer to a medical facility, he explained, which must include a doctor. Mr. Matheis again said he would provide the case law and asked to meet again with the senators to determine if the bill is "in fact" unnecessary. Senator Lee stated it is his concern that the committee not create two classes of people, those who can afford to pay for medical care, and therefore, are able to sue for malpractice, and those who cannot pay for medical care and, as a result, have no recourse in such cases. Dr. Cavell testified this is not the intent of the bill, that persons who receive services would still have recourse through the charitable organization. He emphasized the goal is to tap a vital resource within the community, that will likely go untapped if the fear of being sued persists. The senator was agreeable to this reassurance. The chairman thanked the witnesses and called for witnesses in opposition to the bill. Bill Bradley and Robert Perry, Lobbyists, Nevada Trial Lawyers Association, addressed the committee. He offered to express his concerns at a time after Mr. Matheis has brought his legal opinions to the committee, but he offered to answer any questions the committee has. The chairman asked Mr. Bradley and Mr. Perry if they knew of any cases such as Mr. Matheis mentioned. Mr. Bradley stated he is unaware of any, nor does he know of any decisions by the state supreme court interpreting the statute. Senator James asked if they had heard that licensed professionals do not fall under the definition of volunteer, or where such an interpretation might have originated. Mr. Bradley opined that Senator Adler is entirely correct in his view that they are protected under the statute, and the chairman is also correct in his view that the new language would weaken their standing. The witness stated his view there is no hostile climate for the medical community or that there is a chilling effect due to fear of liability. Senator Adler told of a group of physicians in Carson City that offers free prenatal care, with the intention of reducing liability when unscheduled deliveries occur. This, he said, is an example of how volunteerism might reduce liability. Mr. Bradley opined volunteering services on behalf of any profession or organization is an admirable thing, which should be encouraged. He does share Senator Lee's concern about who is responsible should something go wrong, noting that when there is no clearly responsible party the burden falls on the state. Mr. Perry added his agreement to Senator Lee's concern, but he said he feels there is a need to promote charity and volunteerism. He stated he feels there is a need to provide volunteer doctors with some protection during their charitable efforts... ...as long as the statute is very clear that you are talking about a retired doctor; you're talking about a doctor that is really a volunteer, and there is no compensation, direct or indirect; and that it is to provide services to people who are truly indigent and under an indigent program. Mr. Perry also said he agrees with Senator James the current statute clearly and sufficiently applies to doctors. He also opined the old statute offers better protection than the proposed change. The chairman pointed out a further narrowing of the liability limitation in the new bill in that it requires the services be offered only to indigents, whereas, in the current statute there is no indigence requirement. This is in addition to the word "gratuitously," which is also added, and would further increase requirements, he warned. He again offered to support the efforts of the witnesses to increase the likelihood of physicians and other health care professionals volunteering their time and expertise, and asked them to return with further information and for further discussion. Mr. Perry wished to add that, in the 22 years he has been practicing law representing injured consumers, he has only filed two medical malpractice suits. He opined this figure is probably consistent with most lawyers who represent injured consumers in Nevada. Senator Porter noted it is the committee's desire to address the difference between charitable acts and possible injurious results of those acts. The chairman called for further testimony. There was none, and he closed the hearing on S.B. 130. There followed a work session. SENATE BILL 90: Makes various changes to provisions governing the destruction and admissibility into evidence of certain business records. SENATE BILL 91: Makes various changes to provisions governing admissibility and maintenance of duplicates and copies of certain records. Senator Adler, as chairman of a subcommittee addressing these issues, proposed some amendments to one of the bills. He noted the amendment goes to S.B. 90, and disbursed copies of the proposed amendment (Exhibit D). He told the committee there is a concern that once a public record is recorded, copied or reproduced, it might lose its public accessibility because of the complex medium upon which it may be recorded. He read, "the record, copied or reproduced, shall be deemed a public record for the purposes of chapter 239 of Nevada Revised Statutes (NRS)." Secondly, an amendment proposed by Lucille Lusk, a lobbyist representing Nevada Concerned Citizens, states: the government agency shall render such assistance as is necessary, to allow any member of the public access to the recorded, copied, or reproduced record, if the record is not otherwise declared by law to be confidential. This requires the agency to show an individual how to operate the necessary equipment in order to access the record in its present medium, he explained. The chairman asked for questions regarding the amendments. There were none. He called for a motion. SENATOR ADLER MOVED TO AMEND AND DO PASS S.B. 90. SENATOR TITUS SECONDED THE MOTION. THE MOTION CARRIED. (SENATOR WASHINGTON WAS ABSENT FOR THE VOTE.) ***** The chairman asked Senator Adler to carry the bill to the Senate floor. He agreed. There were no changes proposed to S.B. 91 and there was a motion from the committee to pass the bill as prepared. SENATOR ADLER MOVED TO DO PASS S.B. 91. SENATOR McGINNESS SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. ***** The chairman asked Senator Adler to carry this bill to the floor, as well. He again agreed. SENATE BILL 139: Expands aggravated circumstances under which death penalty may be imposed for murder. Senator Washington proffered an amendment to the bill, asking the committee to refer to page 2, line 5 of the bill, asking to remove the word "special" and insert "juvenile probation officers" to the listing. Senator James recapped the changes proposed by the amendment. He asked if this list is broad enough to cover the entire class of peace officers affected by the bill. At this point Sgt. Shipley asked to address the committee. He explained this issue. which relates the aggravated circumstances, comes up during every legislative session. As previously proposed in the bill draft request, he told, PORAN has attempted to gather all peace officers under one statute. He asked the committee to consider removing the list of peace officers from S.B. 139 and replace it with the wording proposed by PORAN (section 2 of Exhibit C) in their bill draft request, which defines peace officer under NRS 381.0311 through NRS 218.0353. He said this would streamline the process. Senator James pointed to a concern raised by Senator Adler, wherein the definition of peace officer becomes so broad that it will not withstand constitutional challenges. The purpose of the aggravator is to show the death penalty is imposed only under "certain, specified circumstances," he explained, because we want a perpetrator to know, should harm come to an officer when he or she is out there enforcing the law and facing threats to life and limb, that officer is protected and supported by the state, through the imposition of the highest penalty the law will allow. Sgt. Shipley opined there is no difference between "the man in blue" and the sheep inspector (both covered under the statutory definition requested by PORAN), because both are "out there representing government" and they have the responsibility to enforce the laws that are promulgated by the Legislature. He added that frequently "sheep inspectors" and game wardens are faced with life and death situations and they deserve the same protections afforded the metropolitan police officers. Senator James, seeking a consensus, asked representatives of the defense bar and the attorney general's office for their opinions regarding the peace officer definition. James Jackson, State Public Defender, Office of the State Public Defender, took the floor to address the chairman's concern about the constitutionality of the issue. He stated, considering "blunt reality," there is probably no way to write the law to avoid any and every challenge. He agreed with Sgt. Shipley's stand that differentiating between types of peace officers might open another avenue of litigation. He opined, "the simpler the aggravator the better off you are." The distinction might actually be what activity the officer was engaged in at the time the killing occurred, he offered, noting if they were engaged in a "lawful, law enforcement activity and fit the definition of the peace officer, ... it seems that that would probably pass muster." The problems that arise with aggravators, Mr. Jackson continued, is with the broader the definition and the greater the number of persons covered under that definition. This allows challenges both to the breadth of the definition and also on the equal protection issue, "why is this particular law enforcement officer excluded as opposed to another?," the witness stated. Since the Legislature has defined a peace officer, Mr. Jackson averred, it simply rests with the prosecution to show the officer killed can fit that definition, and was performing those duties, in order to call for the aggravator. Senator James thanked Mr. Jackson for his candid remarks, stating they helped clarify his own thinking on the question. David Sarnowski, Chief Deputy Attorney General, Office of the Attorney General, came to the stand and offered his opinion, which concurs with Mr. Jackson's view, that since the Legislature and the Governor have approved the definition and signed the law into effect,... as the representative of the state who is most often in a position to have to defend what this body has done, in terms of narrowing the category of offenders eligible for the death penalty, I will tell you, if you make the choice, those who work for me, and I will do everything we can to sustain that policy decision and make the appropriate argument. And I think an appropriate argument can be made. ... I just think you need to recognize the secondary purpose of an aggravating circumstance may be to afford recognition to a class, that being peace officers, it certainly does not afford protection in the sense we think of it. The peace officer at issue is already dead. What aggravating circumstance statutes are required to do, according to the United States Supreme Court, is to adequately and constitutionally narrow that class of first-degree murders to make them eligible for the death penalty. That is the sole purpose of an aggravating circumstance statute. ... The more narrowly defined, I believe, the more easily defensible it is. In summary, the chairman confirmed Mr. Sarnowski's offer to sustain the definition as proposed. Mr. Sarnowski stated he would make every effort to sustain it, and he feels it is certainly defensible. Senator Adler raised the question of the statutory definition because it would require the defendant to be familiar with the statutes. It was concluded by the committee that such familiarity with the statutes is not common, and few if any murderers could be assumed to have studied the statutes before they go out and commit their crime. Mr. Sarnowski suggested it might be possible to repeat the specific language of NRS 281.0311 to NRS 281.0353 in the statute. Senator James asked Mr. Sarnowski if the definition under NRS 281.0311 to NRS 281.0353 would exclude the employees of the department of prisons when carrying out the duties prescribed by the director. Mr. Sarnowski proposed there might still be a need to add those persons specifically. The chairman stated his conviction that it would be best to use the proposed definition of peace officer under NRS 281.0311 to NRS 281.0353 and to specifically add in the prison personnel as previously mentioned. He called for a motion. SENATOR WASHINGTON MOVED TO AMEND AND DO PASS S.B. 139. SENATOR ADLER SECONDED THE MOTION. Senator Adler reiterated his concern about the verbiage "knew or should have known" the individual was a peace officer. There was no further discussion. THE MOTION CARRIED UNANIMOUSLY. ***** The chairman asked Senator Washington to take the bill to the Senate floor. Senator James, noting there was no further business before the committee, adjourned the hearing at 10:25 a.m. RESPECTFULLY SUBMITTED: Lori M. Story, Committee Secretary APPROVED BY: Senator Mark A. James, Chairman DATE: Senate Committee on Judiciary March 14, 1995 Page