requires two-thirds majority vote (§ 10)                                                                                                               

                                                                                                  

 

Assembly Bill No. 300–Assemblymen Mabey, Griffin, Hardy, Andonov, Beers, Brown, Christensen, Geddes, Gibbons, Goicoechea, Grady, Gustavson, Hettrick, Knecht, Marvel, Sherer and Weber

 

March 13, 2003

____________

 

Referred to Committee on Judiciary

 

SUMMARY—Provides for creation of screening panels for medical and dental malpractice claims. (BDR 3‑927)

 

FISCAL NOTE:  Effect on Local Government: No.

                           Effect on the State: Yes.

 

~

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to malpractice; providing in skeleton form for the creation of screening panels for medical and dental malpractice to hear claims of malpractice before such claims may be filed in court; requiring the Commissioner of Insurance to enter into agreements with physicians, dentists, attorneys and hospital administrators to serve as members on the screening panels; requiring the Commissioner of Insurance to employ an administrative law judge to serve as the presiding officer for each of the screening panels; requiring the administrative law judge to select the members of the screening panels and to oversee the claims filed with the screening panels; providing for the prospective expiration of the screening panels; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

 

 

 

2-1  Section 1.  Chapter 41A of NRS is hereby amended by adding

2-2  thereto the provisions set forth as sections 2 to 12, inclusive, of this

2-3  act.

2-4  Sec. 2.  As used in sections 2 to 12, inclusive, of this act,

2-5  unless the context otherwise requires, the words and terms defined

2-6  in sections 3, 4 and 5 of this act have the meaning ascribed to

2-7  them in those sections.

2-8  Sec. 3.  “Administrative law judge” means an administrative

2-9  law judge employed by the Commissioner of Insurance pursuant

2-10  to section 9 of this act.

2-11      Sec. 4.  “Dentist” means a person licensed to practice

2-12  dentistry or any special branch of dentistry pursuant to chapter

2-13  631 of NRS.

2-14      Sec. 5.  “Health care records” means any written reports,

2-15  notes, orders, photographs, X rays or other written record received

2-16  or produced by a provider of health care, or any person employed

2-17  by him, which contains information relating to the medical

2-18  history, examination, diagnosis or treatment of the patient.

2-19      Sec. 6.  1.  A cause of action involving medical or dental

2-20  malpractice may not be filed until the medical or dental

2-21  malpractice case has been submitted to an appropriate screening

2-22  panel and a determination is made by such a panel as provided by

2-23  sections 7 to 12, inclusive, of this act. Any action filed without

2-24  satisfying the requirements of sections 7 to 12, inclusive, of this

2-25  act is subject to dismissal without prejudice for failure to comply

2-26  with this section.

2-27      2.  Except as otherwise provided in subsection 3, the written

2-28  findings of the screening panel are admissible in any action

2-29  concerning that complaint which is subsequently filed in district

2-30  court. No other evidence concerning the screening panel or its

2-31  deliberations is admissible and no member of the screening panel

2-32  may be called to testify in any such action.

2-33      3.  If the screening panel finds that it is unable to reach a

2-34  decision on the issue of medical malpractice, the written findings

2-35  of the screening panel are not admissible in any action concerning

2-36  that complaint which is subsequently filed in district court.

2-37      Sec. 7.  1.  There are hereby created two tentative screening

2-38  panels, one to be known as the northern panel, from which must

2-39  be selected screening panels to sit in Reno to hear claims of

2-40  medical or dental malpractice arising in the counties of Washoe,

2-41  Storey, Douglas, Lyon, Churchill, Pershing, Humboldt, Lander,

2-42  Elko, Eureka, Mineral, White Pine and Carson City, and one to be

2-43  known as the southern panel, from which must be selected

2-44  screening panels to sit in Las Vegas to hear claims of medical or

3-1  dental malpractice arising in the counties of Lincoln, Nye,

3-2  Esmeralda and Clark.

3-3  2.  The Commissioner of Insurance shall enter into

3-4  agreements with physicians, dentists, and attorneys as necessary to

3-5  serve as members of the tentative screening panels. The

3-6  Commissioner may also enter into agreements with administrators

3-7  of hospitals as necessary to serve as members of the screening

3-8  panels when a claim names a hospital or a nurse employed by a

3-9  hospital as a defendant. The Commissioner shall create a list of

3-10  the physicians, dentists, attorneys and any administrators of

3-11  hospitals who will serve as members of the tentative screening

3-12  panels.

3-13      Sec. 8.  The provisions of chapter 241 of NRS do not apply to

3-14  meetings of screening panels.

3-15      Sec. 9.  1.  The Commissioner of Insurance shall employ at

3-16  least one administrative law judge to serve as the presiding officer

3-17  for each of the screening panels. The administrative law judge

3-18  may not vote on any matter before the screening panels.

3-19      2.  An administrative law judge employed by the

3-20  Commissioner must possess the qualifications for eligibility to the

3-21  office of district judge set forth in NRS 3.060.

3-22      3.  Any decision of an administrative law judge is:

3-23      (a) Final and must not be disturbed, except upon a showing

3-24  that the judge acted in an arbitrary and capricious manner; and

3-25      (b) Subject to judicial review by the district court of the county

3-26  in which the plaintiff resides and, in those districts which have a

3-27  chief judge, only by the chief judge.

3-28      Sec. 10.  1.  A claim of medical or dental malpractice is

3-29  properly presented to a screening panel by filing a complaint with

3-30  the administrative law judge for that panel and paying the

3-31  appropriate fee in cash, by cashier’s check or by certified check.

3-32      2.  The Commissioner of Insurance shall by regulation

3-33  establish the amount of the fee for filing a complaint and for filing

3-34  a response which must not exceed $500 for each such filing. When

3-35  establishing the amount of the filing fees, the Commissioner shall

3-36  set the fees in an amount sufficient to cover the anticipated costs

3-37  of the screening panels and their administration.

3-38      Sec. 11.  1.  Not later than 30 days after the expiration of the

3-39  time in which to answer the complaint of medical or dental

3-40  malpractice, the administrative law judge shall hold a conference

3-41  to resolve any issues as to challenges for cause. A party may

3-42  challenge the appointment of any person on the tentative

3-43  screening panel for cause on any of the grounds set forth in NRS

3-44  16.050 for the challenge of jurors.

4-1  2.  The administrative law judge shall determine whether

4-2  cause exists to excuse any member of the tentative screening panel

4-3  and shall notify each party of a member who is excused.

4-4  3.  Except as otherwise provided in this section, each party is

4-5  entitled to not more than:

4-6  (a) Two peremptory challenges from the list of attorneys in

4-7  cases involving medical or dental malpractice;

4-8  (b) Two peremptory challenges from the list of physicians in

4-9  cases involving medical malpractice; and

4-10      (c) Two peremptory challenges from the list of dentists in cases

4-11  involving dental malpractice.

4-12      4.  In cases involving medical malpractice, the administrative

4-13  law judge shall randomly select, from the list of members of the

4-14  tentative screening panels created by the Commissioner of

4-15  Insurance pursuant to section 7 of this act who have not been

4-16  excused for cause or by a peremptory challenge, the names of

4-17  three physicians, three attorneys and, if a hospital is also named in

4-18  the complaint, one administrator of a hospital, to serve on the

4-19  screening panel for review of a claim of medical malpractice. An

4-20  administrator of a hospital who is selected to serve as a member of

4-21  a screening panel serves in an advisory capacity and may not vote

4-22  on any claim before the screening panel.

4-23      5.  In cases involving dental malpractice, the administrative

4-24  law judge shall randomly select, from the list of members of the

4-25  tentative screening panel created by the Commissioner of

4-26  Insurance pursuant to section 7 of this act who have not been

4-27  excused for cause or by a peremptory challenge, the names of

4-28  three dentists and three attorneys to serve on the screening panel

4-29  for review of the claim.

4-30      6.  The administrative law judge shall notify the parties and

4-31  the members selected to serve on the screening panel immediately

4-32  after making the selections. If any member so selected is unable to

4-33  serve, the administrative law judge shall immediately and

4-34  randomly select a replacement from the list. The administrative

4-35  law judge shall not release or disclose to any person the names of

4-36  members selected.

4-37      7.  If, because of the exercise of challenges for cause or

4-38  peremptory challenges or any other reason, no attorney, dentist,

4-39  physician or administrator of a hospital with whom the

4-40  Commissioner of Insurance has entered into an agreement

4-41  pursuant to section 7 of this act remains available to serve on the

4-42  screening panel, the administrative law judge shall immediately

4-43  notify the Commissioner of Insurance who shall locate and enter

4-44  into an agreement with an appropriate replacement.

5-1  Sec. 12.  1.  The administrative law judge may, by certified

5-2  or registered mail, issue subpoenas as may be required by the

5-3  screening panel, to compel the attendance of expert witnesses and,

5-4  as may be required by the parties or the screening panel, to compel

5-5  the production of books, papers, health care records, dental

5-6  records, statements of policy and procedure, or other materials.

5-7  2.  The administrative law judge shall keep the material so

5-8  produced and make it available to the parties, upon request, for

5-9  inspection or copying. If the material is reasonably capable of

5-10  being copied, the administrative law judge shall provide a copy to

5-11  the parties, upon request and receipt of a fee for the copying.

5-12      Sec. 13.  This act becomes effective on October 1, 2003, and

5-13  expires by limitation on October 1, 2009.

 

5-14  H