Senate Bill No. 97–Committee on Judiciary
February 12, 2003
____________
Referred to Committee on Judiciary
SUMMARY—Makes various changes concerning actions for malpractice against providers of health care, removes certain restrictions by insurers on providers of health care and makes various other changes concerning providers of health care. (BDR 1‑248)
FISCAL NOTE: Effect on Local Government: No.
Effect on the State: No.
~
EXPLANATION
– Matter in bolded italics is new; matter
between brackets [omitted material] is material to be omitted.
Green numbers along left margin indicate location on the printed bill (e.g., 5-15 indicates page 5, line 15).
AN ACT relating to health care; establishing screening panels for claims for medical malpractice or dental malpractice; increasing the limitation on the amount of noneconomic damages that may be awarded in an action for medical malpractice or dental malpractice in certain circumstances; requiring an investigation of a physician who has had three claims of malpractice reported to the licensing board; making various changes relating to the reporting of claims of medical malpractice; prohibiting an insurer from retaliating against a physician or dentist who indicates a desire to settle a claim during a settlement conference; requiring managed care organizations to enter into contracts for the provision of services with any willing provider in certain circumstances; requiring a temporary reduction in the premiums of malpractice insurance; providing a penalty; and providing other matters properly relating thereto.
Whereas, The provision of quality medical care is essential to the general health and welfare of the residents of this state; and
Whereas, The practice of medicine is a mixture of art and science and is a dynamic and changing discipline based to a great
extent on concepts of probability rather than on absolute certainty; and
Whereas, Regardless of the advances in the practice of medicine, unanticipated medical outcomes may occur during medical treatment because of the unavoidable effects of a disease or the unavoidable result of appropriate medical care; and
Whereas, Unanticipated medical outcomes do not automatically give rise to liability for damages; and
Whereas, Tens of thousands of patients are unfortunately injured each year as a result of inappropriate medical care; and
Whereas, This state is experiencing a health care crisis because increasing costs of malpractice insurance premiums have resulted in a potential breakdown in the delivery and quality of health care in this state; and
Whereas, Certain measures must be taken to provide protection for both the providers of health care and their patients to improve the quality of health care in this state; and
Whereas, A system for screening claims of malpractice by professionals with specialized training and experience will provide such protection for those providers and their patients and will eliminate frivolous claims and resolve meritorious claims; and
Whereas, Reasonable limitations on certain types of damages in malpractice actions will fairly balance the rights of those providers and their patients; and
Whereas, A system for reporting and investigating claims of medical malpractice will provide protection to the public by removing incompetent physicians from the medical profession; and
Whereas, A system for reducing premiums for malpractice insurance will ensure that competent physicians will continue to provide quality medical care in this state; now, therefore,
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN
SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
1-1 Section 1. This act may be cited as the “Keep Quality Medical
1-2 Care in Nevada Act.”
1-3 Sec. 1.5. The Legislature hereby finds and declares that:
1-4 1. The 18th Special Session of the Nevada Legislature was
1-5 held in 2002 to address the State’s emerging medical malpractice
1-6 crisis.
1-7 2. The Nevada Legislature recognized that the difficulty
1-8 experienced in this state in attracting and maintaining a sufficient
1-9 network of physicians to meet the needs of the residents of this state
1-10 posed a serious threat to the health, welfare and safety of those
1-11 residents.
2-1 3. The Nevada Legislature unanimously approved broad tort
2-2 reforms during the 18th Special Session to provide stability and
2-3 predictability to Nevada’s civil justice system and insurance market
2-4 while protecting the legal remedies available to injured patients.
2-5 4. The reforms passed by the Nevada Legislature during the
2-6 18th Special Session included:
2-7 (a) A $350,000 limitation on the amount that may be awarded
2-8 for noneconomic damages in a medical malpractice action, which
2-9 was carefully crafted to limit a physician’s liability and provide
2-10 compensation to an injured patient;
2-11 (b) A $50,000 limitation on the amount of damages that may be
2-12 awarded in a medical malpractice action for emergency care
2-13 received in hospitals;
2-14 (c) Immunity from liability for certain providers of health care
2-15 who provide treatment gratuitously at a health care facility of a
2-16 governmental entity or nonprofit organization;
2-17 (d) Protection of the right to consider collateral sources of
2-18 payment to a patient and to elect to receive future damages awarded
2-19 in periodic payments;
2-20 (e) Several liability for noneconomic damages awarded in an
2-21 action for medical malpractice so that a physician is only liable for
2-22 such damages in an amount equal to the percentage of negligence
2-23 attributable to him;
2-24 (f) Increasing the efficiency of the civil justice system by
2-25 providing a shorter period within which to commence a medical
2-26 malpractice action, making changes concerning pretrial settlement
2-27 conferences and requiring certain district judges to receive certain
2-28 training concerning medical malpractice actions;
2-29 (g) Stricter requirements concerning reporting information
2-30 concerning medical malpractice to state licensing boards; and
2-31 (h) Requiring the reporting of medical errors and protecting
2-32 “whistle blowers” who report medical errors or potential medical
2-33 malpractice.
2-34 5. The Nevada Legislature responded to the crisis in 2002 and
2-35 proposes the additional protections to consumers of medical care in
2-36 this state as set forth in this act.
2-37 Sec. 2. Chapter 630 of NRS is hereby amended by adding
2-38 thereto a new section to read as follows:
2-39 1. If, within the immediately preceding 7 years, a physician
2-40 has made three reports or has had three reports made concerning
2-41 him pursuant to NRS 630.3067, a committee designated by the
2-42 Board and consisting of members of the Board shall review the
2-43 reports and conduct an investigation to determine whether it is
2-44 necessary or appropriate to initiate disciplinary action pursuant to
2-45 this chapter against the physician.
3-1 2. If, after conducting the investigation, the committee
3-2 determines that it is necessary or appropriate to initiate
3-3 disciplinary action pursuant to this chapter against the physician,
3-4 the committee shall file a formal complaint with the Board.
3-5 Sec. 3. NRS 630.3067 is hereby amended to read as follows:
3-6 630.3067 1. The insurer of a physician licensed under this
3-7 chapter and the physician [must] shall report to the Board [any
3-8 action filed or claim] :
3-9 (a) Any action for malpractice filed against the physician not
3-10 later than 45 days after the physician receives service of a
3-11 summons and complaint for the action;
3-12 (b) Any claim for malpractice against the physician that is
3-13 submitted to arbitration or mediation [for malpractice or negligence
3-14 against the physician and the] not later than 45 days after the claim
3-15 is submitted to arbitration or mediation; and
3-16 (c) Any settlement, award, judgment or other disposition of [the]
3-17 any action or claim [within 30 days after:
3-18 (a) The action was filed or the claim was submitted to
3-19 arbitration or mediation; and
3-20 (b) The disposition of the action or claim.] described in
3-21 paragraph (a) or (b) not later than 45 days after the settlement,
3-22 award, judgment or other disposition.
3-23 2. The Board shall report any failure to comply with subsection
3-24 1 by an insurer licensed in this state to the Division of Insurance of
3-25 the Department of Business and Industry. If, after a hearing, the
3-26 Division of Insurance determines that any such insurer failed to
3-27 comply with the requirements of subsection 1, the Division may
3-28 impose an administrative fine of not more than $10,000 against the
3-29 insurer for each such failure to report. If the administrative fine is
3-30 not paid when due, the fine must be recovered in a civil action
3-31 brought by the Attorney General on behalf of the Division.
3-32 Sec. 4. NRS 630.339 is hereby amended to read as follows:
3-33 630.339 1. If a committee designated by the Board to
3-34 conduct an investigation of a complaint or conduct an investigation
3-35 pursuant to section 2 of this act decides to proceed with
3-36 disciplinary action, it shall bring charges against the licensee. If
3-37 charges are brought, the Board shall fix a time and place for a
3-38 formal hearing. If the Board receives a report pursuant to subsection
3-39 5 of NRS 228.420, such a hearing must be held within 30 days after
3-40 receiving the report. The Board shall notify the licensee of the
3-41 charges brought against him, the time and place set for the hearing,
3-42 and the possible sanctions authorized in NRS 630.352.
3-43 2. The Board, a hearing officer or a panel of its members
3-44 designated by the Board shall hold the formal hearing on the charges
3-45 at the time and place designated in the notification. If the hearing is
4-1 before a panel, at least one member of the Board who is not a
4-2 physician must participate in this hearing.
4-3 Sec. 5. NRS 630.352 is hereby amended to read as follows:
4-4 630.352 1. Any member of the Board, except for an advisory
4-5 member serving on a panel of the Board hearing charges, may
4-6 participate in the final order of the Board. If the Board, after a
4-7 formal hearing, determines from a preponderance of the evidence
4-8 that a violation of the provisions of this chapter or of the regulations
4-9 of the Board has occurred, it shall issue and serve on the physician
4-10 charged an order, in writing, containing its findings and any
4-11 sanctions.
4-12 2. If the Board determines that no violation has occurred, it
4-13 shall dismiss the charges, in writing, and notify the physician that
4-14 the charges have been dismissed. If the disciplinary proceedings
4-15 were instituted against the physician as a result of a complaint filed
4-16 against him, the Board may provide the physician with a copy of the
4-17 complaint.
4-18 3. Except as otherwise provided in [subsection 4,] subsections
4-19 4 and 5, if the Board finds that a violation has occurred, it may by
4-20 order:
4-21 (a) Place the person on probation for a specified period on any
4-22 of the conditions specified in the order;
4-23 (b) Administer to him a public reprimand;
4-24 (c) Limit his practice or exclude one or more specified branches
4-25 of medicine from his practice;
4-26 (d) Suspend his license for a specified period or until further
4-27 order of the Board;
4-28 (e) Revoke his license to practice medicine;
4-29 (f) Require him to participate in a program to correct alcohol or
4-30 drug dependence or any other impairment;
4-31 (g) Require supervision of his practice;
4-32 (h) Impose a fine not to exceed $5,000;
4-33 (i) Require him to perform community service without
4-34 compensation;
4-35 (j) Require him to take a physical or mental examination or an
4-36 examination testing his competence;
4-37 (k) Require him to fulfill certain training or educational
4-38 requirements; and
4-39 (l) Require him to pay all costs incurred by the Board relating to
4-40 his disciplinary proceedings.
4-41 4. If the Board finds that the physician has violated the
4-42 provisions of NRS 439B.425, the Board shall suspend his license for
4-43 a specified period or until further order of the Board.
4-44 5. If the Board finds that the physician is not competent to
4-45 practice medicine, the Board shall revoke his license.
5-1 Sec. 6. NRS 630.356 is hereby amended to read as follows:
5-2 630.356 1. Any person aggrieved by a final order of the
5-3 Board is entitled to judicial review of the Board’s order.
5-4 2. Every order that imposes a sanction against a licensee
5-5 pursuant to subsection 3 , [or] 4 or 5 of NRS 630.352 or any
5-6 regulation of the Board is effective from the date the Secretary-
5-7 Treasurer certifies the order until the date the order is modified or
5-8 reversed by a final judgment of the court. The court shall not stay
5-9 the order of the Board pending a final determination by the court.
5-10 3. The district court shall give a petition for judicial review of
5-11 the Board’s order priority over other civil matters which are not
5-12 expressly given priority by law.
5-13 Sec. 7. Chapter 633 of NRS is hereby amended by adding
5-14 thereto a new section to read as follows:
5-15 1. If, within the immediately preceding 7 years, an
5-16 osteopathic physician has made three reports or has had three
5-17 reports made concerning him pursuant to NRS 633.526, the Board
5-18 shall designate a member of the Board to review the reports and
5-19 conduct an investigation to determine whether it is necessary or
5-20 appropriate to initiate disciplinary action pursuant to this chapter
5-21 against the osteopathic physician.
5-22 2. If, after conducting the investigation, the member
5-23 determines that it is necessary or appropriate to initiate
5-24 disciplinary action pursuant to this chapter against the osteopathic
5-25 physician, the member shall file a formal complaint with the
5-26 Board.
5-27 Sec. 8. NRS 633.526 is hereby amended to read as follows:
5-28 633.526 1. The insurer of an osteopathic physician licensed
5-29 under this chapter and the osteopathic physician [must] shall report
5-30 to the Board [any action filed or claim] :
5-31 (a) Any action for malpractice filed against the osteopathic
5-32 physician not later than 45 days after the osteopathic physician
5-33 receives service of a summons and complaint for the action;
5-34 (b) Any claim for malpractice against the osteopathic
5-35 physician that is submitted to arbitration or mediation [for
5-36 malpractice or negligence against the osteopathic physician and the]
5-37 not later than 45 days after the claim is submitted to arbitration or
5-38 mediation; and
5-39 (c) Any settlement, award, judgment or other disposition of [the]
5-40 any action or claim [within 30 days after:
5-41 (a) The action was filed or the claim was submitted to
5-42 arbitration or mediation; and
5-43 (b) The disposition of the action or claim.] described in
5-44 paragraph (a) or (b) not later than 45 days after the settlement,
5-45 award, judgment or other disposition.
6-1 2. The Board shall report any failure to comply with subsection
6-2 1 by an insurer licensed in this state to the Division of Insurance of
6-3 the Department of Business and Industry. If, after a hearing, the
6-4 Division of Insurance determines that any such insurer failed to
6-5 comply with the requirements of subsection 1, the Division may
6-6 impose an administrative fine of not more than $10,000 against the
6-7 insurer for each such failure to report. If the administrative fine is
6-8 not paid when due, the fine must be recovered in a civil action
6-9 brought by the Attorney General on behalf of the Division.
6-10 Sec. 9. NRS 633.621 is hereby amended to read as follows:
6-11 633.621 If a formal complaint is filed with the Board pursuant
6-12 to NRS 633.541 [,] or section 7 of this act, the Secretary of the
6-13 Board shall fix a time and place for a hearing and cause a notice of
6-14 the hearing and a formal complaint to be served on the person
6-15 charged at least 20 days before the date fixed for the hearing. If the
6-16 Board receives a formal complaint concerning subsection 5 of NRS
6-17 228.420, such a hearing must be held within 30 days after receiving
6-18 the formal complaint.
6-19 Sec. 10. NRS 633.651 is hereby amended to read as follows:
6-20 633.651 1. The person charged in a formal complaint is
6-21 entitled to a hearing before the Board, but the failure of the person
6-22 charged to attend his hearing or his failure to defend himself must
6-23 not delay or void the proceedings. The Board may, for good cause
6-24 shown, continue any hearing from time to time.
6-25 2. [If] Except as otherwise provided in subsection 3, if the
6-26 Board finds the person guilty as charged in the formal complaint, it
6-27 may by order:
6-28 (a) Place the person on probation for a specified period or until
6-29 further order of the Board.
6-30 (b) Administer to the person a public reprimand.
6-31 (c) Limit the practice of the person to, or by the exclusion of,
6-32 one or more specified branches of osteopathic medicine.
6-33 (d) Suspend the license of the person to practice osteopathic
6-34 medicine for a specified period or until further order of the Board.
6-35 (e) Revoke the license of the person to practice osteopathic
6-36 medicine.
6-37 The order of the Board may contain such other terms, provisions or
6-38 conditions as the Board deems proper and which are not inconsistent
6-39 with law.
6-40 3. If the Board finds that the osteopathic physician is not
6-41 competent to practice osteopathic medicine, the Board shall revoke
6-42 his license.
7-1 Sec. 11. Chapter 41A of NRS is hereby amended by adding
7-2 thereto the provisions set forth as sections 12 to 33, inclusive, of this
7-3 act.
7-4 Sec. 12. As used in sections 12 to 32, inclusive, of this act,
7-5 unless the context otherwise requires, the words and terms defined
7-6 in sections 13, 14 and 15 of this act have the meanings ascribed to
7-7 them in those sections.
7-8 Sec. 13. “Dentist” means a person licensed to practice
7-9 dentistry or any special branch of dentistry pursuant to chapter
7-10 631 of NRS.
7-11 Sec. 14. “Division” means the Division of Insurance of the
7-12 Department of Business and Industry.
7-13 Sec. 15. “Health care records” means any written reports,
7-14 notes, orders, photographs, X-rays or other written record received
7-15 or produced by a provider of health care, or any person employed
7-16 by him, which contains information relating to the medical or
7-17 dental history, examination, diagnosis or treatment of the patient.
7-18 Sec. 16. 1. No cause of action involving medical
7-19 malpractice or dental malpractice may be filed until the medical
7-20 malpractice or dental malpractice case has been submitted to an
7-21 appropriate screening panel and a determination has been made
7-22 by such a panel as provided in sections 12 to 32, inclusive, of this
7-23 act, and any action filed without satisfying the requirements of
7-24 those sections is subject to dismissal without prejudice for failure
7-25 to comply with this section.
7-26 2. Except as otherwise provided in subsection 3, the written
7-27 findings of the screening panel are admissible in any action
7-28 concerning that claim which is subsequently filed in district court.
7-29 No other evidence concerning the screening panel or its
7-30 deliberations is admissible, and no member of the screening panel
7-31 may be called to testify in any such action.
7-32 3. If the screening panel finds that it is unable to reach a
7-33 decision on the issue of medical malpractice or dental malpractice,
7-34 the written findings of the screening panel are not admissible in
7-35 any action concerning that claim which is subsequently filed in
7-36 district court.
7-37 Sec. 17. There are hereby created two tentative screening
7-38 panels, one to be known as the Northern Panel, from which must
7-39 be selected screening panels to sit in Reno, Nevada, to hear claims
7-40 of medical malpractice or dental malpractice arising in the
7-41 counties of Washoe, Storey, Douglas, Lyon, Churchill, Pershing,
7-42 Humboldt, Lander, Elko, Eureka, Mineral, White Pine and
7-43 Carson City, and one to be known as the Southern Panel, from
7-44 which must be selected screening panels to sit in Las Vegas,
7-45 Nevada, to hear claims of medical malpractice or dental
8-1 malpractice arising in the counties of Lincoln, Nye, Esmeralda
8-2 and Clark.
8-3 Sec. 18. 1. For cases involving medical malpractice or
8-4 dental malpractice, the Board of Governors of the Nevada Trial
8-5 Lawyers Association may designate 40 of its members to serve on
8-6 the Northern Tentative Screening Panel and 60 of its members to
8-7 serve on the Southern Tentative Screening Panel. Each person so
8-8 designated shall serve for a term of 1 year.
8-9 2. For cases involving medical malpractice, the Executive
8-10 Council of the Nevada State Medical Association may designate
8-11 40 of its members to serve on the Northern Tentative Screening
8-12 Panel and 60 of its members to serve on the Southern Tentative
8-13 Screening Panel. Each person so designated shall serve for a term
8-14 of 1 year.
8-15 3. For cases involving medical malpractice, the Nevada
8-16 Hospital Association may designate 40 administrators of hospitals
8-17 and other persons employed by hospitals in management positions
8-18 to serve as nonvoting members of the tentative screening panels.
8-19 Each person so designated shall serve for a term of 1 year.
8-20 4. For cases involving dental malpractice, the Nevada Dental
8-21 Association may designate 40 of its members to serve on the
8-22 Northern Tentative Screening Panel and 40 of its members to
8-23 serve on the Southern Tentative Screening Panel. Each person so
8-24 designated shall serve for a term of 1 year.
8-25 Sec. 19. 1. The Commissioner of Insurance shall arrange
8-26 for courses of instruction in the rules of procedure and substantive
8-27 law appropriate for members of a screening panel.
8-28 2. Each person designated to serve on a tentative screening
8-29 panel shall attend the instruction provided pursuant to subsection
8-30 1 before serving on a particular screening panel.
8-31 Sec. 20. 1. The members of a screening panel shall elect
8-32 one member to serve as chairman.
8-33 2. A screening panel is a state agency. The rules adopted
8-34 pursuant to section 22 of this act apply to all screening panels.
8-35 Sec. 21. The provisions of chapter 241 of NRS do not apply
8-36 to any meeting of a screening panel.
8-37 Sec. 22. The Division, through the Commissioner of
8-38 Insurance:
8-39 1. Shall maintain a list of the names of the attorneys,
8-40 physicians, dentists, administrators of hospitals and persons
8-41 employed by hospitals in management positions on the Northern
8-42 Tentative Screening Panel and on the Southern Tentative
8-43 Screening Panel;
8-44 2. Shall select the members of the screening panels;
8-45 3. Shall schedule the hearings for the screening panels;
9-1 4. Shall obtain, before or after the filing of a claim, such
9-2 health care records, statements of policy and procedure and other
9-3 materials as may be required by a screening panel in connection
9-4 with the claim;
9-5 5. Shall charge and collect a reasonable fee for copying
9-6 materials produced under subpoena;
9-7 6. Shall adopt regulations prescribing the fees to be paid to
9-8 the Division by any party that is not a governmental entity in an
9-9 amount sufficient to pay:
9-10 (a) All administrative costs incurred to create the tentative
9-11 screening panels, train the members of the tentative screening
9-12 panels, appoint members to the screening panels and enable such
9-13 members to carry out the duties of the screening panels; and
9-14 (b) Any other costs reasonably incurred in carrying out the
9-15 purposes of sections 12 to 32, inclusive, of this act;
9-16 7. For good cause shown, may authorize a continuance for
9-17 the proceedings involving a screening panel; and
9-18 8. May adopt such rules of practice and procedure as are
9-19 necessary to carry out its duties pursuant to sections 12 to 32,
9-20 inclusive, of this act.
9-21 Sec. 23. Any money received by the Division pursuant to the
9-22 provisions of sections 12 to 32, inclusive, of this act must be
9-23 deposited with the State Treasurer for credit to the account for the
9-24 Division of Insurance in the State General Fund. The
9-25 administrative costs of the screening panels must be paid from
9-26 the account.
9-27 Sec. 24. 1. A matter which allegedly involves medical
9-28 malpractice or dental malpractice is properly presented to a
9-29 screening panel by filing a claim with the Division and paying any
9-30 required fee.
9-31 2. The claim must include the following, and no other
9-32 information:
9-33 (a) A clear and concise statement of the facts of the matter,
9-34 showing the persons involved and the dates and circumstances, so
9-35 far as they are known, of the alleged medical malpractice or dental
9-36 malpractice. The claim must not contain any statement of fact that
9-37 is not included within the health care records of the claimant or
9-38 any statement about the standard of care that was provided to the
9-39 claimant.
9-40 (b) One or more affidavits from medical or dental experts, as
9-41 appropriate, providing opinions concerning the appropriate
9-42 standard of care, the breach of the standard of care, how the
9-43 breach caused the injury and a description of the injury. A
9-44 screening panel may dismiss a claim if the claim is filed without
9-45 such an affidavit.
10-1 3. The person against whom a claim is made must, within 90
10-2 days after receipt of the claim, file an answer with the Division
10-3 and pay any required fee. The answer may only include:
10-4 (a) A clear and concise statement of the facts of the matter,
10-5 showing the persons involved and the dates and circumstances, so
10-6 far as they are known, of the medical or dental care provided. The
10-7 answer must not contain any statement of fact that is not included
10-8 within the health care records of the claimant or any statement
10-9 about the standard of care that was provided to the claimant.
10-10 (b) One or more affidavits from medical or dental experts, as
10-11 appropriate, providing opinions concerning the appropriate
10-12 standard of care, whether there was a breach of the standard of
10-13 care, whether the breach of that standard of care caused the injury
10-14 and a description of the injury.
10-15 4. The Division may authorize an extension of the time in
10-16 which an answer must be filed only if all parties to the matter
10-17 stipulate to the extension. If an answer is not timely filed with the
10-18 Division, the respondent who failed to file the answer may not
10-19 participate in any conference held pursuant to section 25 of this
10-20 act.
10-21 5. The claimant may file a written response to the answer
10-22 with the Division within 30 days after he receives the answer. The
10-23 response must not contain any statement of fact that is not
10-24 included within the health care records of the claimant or any
10-25 statement about the standard of care provided to the claimant. The
10-26 screening panel shall disregard any portion of the response that
10-27 does not address a statement in the answer or an affidavit
10-28 accompanying the answer. One or more additional affidavits from
10-29 medical or dental experts may be included with the response
10-30 providing opinions concerning the appropriate standard of care,
10-31 whether there was a breach of the standard of care, whether the
10-32 breach of that standard of care caused the injury and a description
10-33 of the injury. No fee may be charged or collected by the Division
10-34 for the filing of the response.
10-35 6. The Division may authorize an extension of the time in
10-36 which a response may be filed only if all parties to the matter
10-37 stipulate to the extension. Unless otherwise stipulated to by all the
10-38 parties to the matter, the Division may not accept any response
10-39 that is not timely filed.
10-40 7. A copy of any claim, answer or response filed with the
10-41 Division pursuant to this section must be delivered by the party, by
10-42 certified or registered mail or by personal service, to each
10-43 opposing party or, if he is represented in the proceedings of the
10-44 screening panel by counsel, to his attorney.
11-1 Sec. 25. 1. Within 35 days after the expiration of the time
11-2 in which to answer a claim of medical malpractice or dental
11-3 malpractice, the Division shall hold a conference to resolve any
11-4 issues as to challenges for cause. For good cause shown, the
11-5 Division may continue the conference once, for a period not to
11-6 exceed 7 days. A party may challenge any person on the tentative
11-7 screening panel for cause on any of the grounds provided by NRS
11-8 16.050 for the challenge of jurors.
11-9 2. The Division shall determine whether cause exists to
11-10 excuse any member of the tentative screening panel and shall
11-11 notify each party of the excused members no later than the
11-12 completion of the conference required by subsection 1.
11-13 3. Except as otherwise provided in this subsection, each party
11-14 is entitled to not more than:
11-15 (a) Two peremptory challenges from the list of attorneys in
11-16 cases involving medical malpractice or dental malpractice;
11-17 (b) Two peremptory challenges from the list of physicians in
11-18 cases involving medical malpractice; and
11-19 (c) Two peremptory challenges from the list of dentists in cases
11-20 involving dental malpractice.
11-21 In any case in which there are two or more claimants or
11-22 respondents, they are collectively entitled to not more than four
11-23 peremptory challenges from the list of members selected for the
11-24 tentative screening panel. Each party asserting a peremptory
11-25 challenge shall notify the Division of the challenge at the
11-26 conference required by subsection 1. If several parties are
11-27 represented by the same attorney, those parties shall be deemed to
11-28 be one party for the purpose of determining the distribution of
11-29 peremptory challenges.
11-30 4. In cases involving medical malpractice, the Division shall
11-31 randomly select, from the list of members of the tentative
11-32 screening panel who have not been excused for cause or by a
11-33 peremptory challenge, the names of two physicians, two attorneys
11-34 and, if a hospital is also named in the claim submitted to the
11-35 Division, one administrator of a hospital or person employed by a
11-36 hospital in a management position, to serve on the screening panel
11-37 for review of a claim of medical malpractice, but the representative
11-38 of a hospital may not vote on any claim before the screening
11-39 panel.
11-40 5. In cases involving dental malpractice, the Division shall
11-41 randomly select, from the list of members of the tentative
11-42 screening panel who have not been excused for cause or by a
11-43 peremptory challenge, the names of two dentists and two attorneys
11-44 to serve on the screening panel for review of the claim of dental
11-45 malpractice.
12-1 6. The Division shall notify the parties and the members
12-2 selected to serve on the screening panel immediately after it has
12-3 made the selections. If any member so selected declines to serve,
12-4 the Division shall immediately and randomly select a replacement
12-5 from the list. The Division shall not release or disclose to any
12-6 person the names of the members selected.
12-7 7. If, because of the exercise of challenges for cause or
12-8 peremptory challenges or any other reason, no attorney, dentist,
12-9 physician, administrator of a hospital or other person employed by
12-10 a hospital in a managerial position designated pursuant to section
12-11 18 of this act remains available to serve on the screening panel,
12-12 the Division shall immediately notify the Nevada Trial Lawyers
12-13 Association, the Nevada State Medical Association, the Nevada
12-14 Dental Association or the Nevada Hospital Association, as
12-15 appropriate, and that association shall immediately designate a
12-16 replacement from among its members. No person who is not so
12-17 designated may serve on the screening panel.
12-18 Sec. 26. 1. The Division may, by certified or registered
12-19 mail, issue subpoenas, as may be required by the screening panel,
12-20 to compel the attendance of medical or dental experts, as
12-21 appropriate, who may testify only with regard to the health care
12-22 records of the claimant, and, as may be required by the parties or
12-23 the screening panel, to compel the production of books, papers,
12-24 health care records, statements of policy and procedure or other
12-25 materials.
12-26 2. The Division shall keep the material so produced and make
12-27 it available to the parties, upon request, for inspection or copying.
12-28 If the material is reasonably capable of being copied, the Division
12-29 shall provide a copy to the parties, upon request and receipt of a
12-30 fee for the copying.
12-31 3. If the health care record of a claimant is illegible or
12-32 difficult to read, the claimant may request an explanation of the
12-33 health care record from the provider of health care who created
12-34 the record. If the provider of health care fails or refuses to provide
12-35 a satisfactory explanation, the claimant may request the Division
12-36 to issue a subpoena to compel the provider of health care to
12-37 provide a satisfactory explanation.
12-38 4. If any medical or dental expert refuses to attend or testify
12-39 or if any person refuses to produce any materials as required by a
12-40 subpoena, the Division may report to the district court by petition,
12-41 setting forth that:
12-42 (a) Due notice has been given of the time and place of
12-43 attendance of the medical or dental expert or for the production of
12-44 the materials;
13-1 (b) The medical or dental expert or the person required to
13-2 produce the materials has been subpoenaed by the Division
13-3 pursuant to this section; and
13-4 (c) The medical or dental expert has failed or refused to attend
13-5 or the person has failed or refused to produce the materials
13-6 required by the subpoena, or has refused to answer questions
13-7 propounded to him,
13-8 and asking for an order of the court compelling the medical or
13-9 dental expert to attend and testify or the other person to produce
13-10 the materials.
13-11 5. Upon receiving such a petition, the court shall enter an
13-12 order directing the medical or dental expert or other person to
13-13 appear before the court at a time and place to be fixed by the court
13-14 in its order, the time to be not more than 10 days after the date of
13-15 the order, and show cause why he has not attended or testified or
13-16 produced the materials. A certified copy of the order must be
13-17 served upon the medical or dental expert or other person.
13-18 6. If it appears to the court that the subpoena was regularly
13-19 issued by the Division, the court shall enter an order that the
13-20 medical or dental expert or other person appear at the time and
13-21 place fixed in the order and testify or produce the required
13-22 materials, and upon his failure to obey the order, the medical or
13-23 dental expert or other person must be dealt with as for contempt of
13-24 court.
13-25 Sec. 27. 1. A claim must be heard by a screening panel
13-26 within 30 days after the panel is selected.
13-27 2. The screening panel shall consider all the documentary
13-28 material, including the claim, answer and response, health care
13-29 records and records of a hospital or office and the testimony of
13-30 any medical or dental experts provided by the parties that the
13-31 panel considers necessary, and shall determine only, from that
13-32 evidence, whether there is a reasonable probability that the acts
13-33 complained of constitute medical malpractice or dental
13-34 malpractice and that the claimant was injured thereby. Except for
13-35 the issue of whether there is a reasonable probability of medical
13-36 malpractice or dental malpractice and whether the claimant was
13-37 injured thereby, the screening panel shall not consider any
13-38 pleading or paper to the extent that it addresses a legal issue
13-39 presented by the claim or a legal argument of a party. The
13-40 screening panel shall not consider challenges concerning any
13-41 relevant statute of limitation relating to a claim before the panel.
13-42 3. Copies of the original claim and of the findings of the
13-43 screening panel with regard to each matter considered by the
13-44 panel must be forwarded to:
13-45 (a) In cases involving medical malpractice:
14-1 (1) The Board of Medical Examiners;
14-2 (2) The State Board of Osteopathic Medicine; and
14-3 (3) The county medical society of the county in which the
14-4 alleged malpractice occurred.
14-5 (b) In cases involving dental malpractice, the Board of Dental
14-6 Eaminers of Nevada.
14-7 4. The Commissioner of Insurance shall mail to the parties a
14-8 copy of the findings of the screening panel concerning the claim.
14-9 5. The written findings of the screening panel must be based
14-10 upon a vote of the members of the screening panel made by
14-11 written ballot, must be rendered within 5 days after the review and
14-12 must be in substantially the following form:
14-13 (a) Based upon a review of the materials submitted by the
14-14 parties and expert testimony (if any) we find that there is a
14-15 reasonable probability of medical malpractice or dental
14-16 malpractice and that the claimant was injured thereby;
14-17 (b) Based upon a review of the materials submitted by the
14-18 parties and expert testimony (if any) we find that there is no
14-19 reasonable probability of medical malpractice or dental
14-20 malpractice; or
14-21 (c) Based upon a review of the materials submitted by the
14-22 parties and expert testimony (if any) we are unable to reach a
14-23 decision on the issue of medical malpractice or dental malpractice.
14-24 6. Whenever three members of the screening panel are
14-25 unable to find that there is a reasonable probability of medical
14-26 malpractice or dental malpractice and that the claimant was
14-27 injured thereby or that there is no reasonable probability of
14-28 medical malpractice or dental malpractice, the screening panel
14-29 shall be deemed unable to reach a decision on the issue and shall
14-30 make a finding to that effect.
14-31 Sec. 28. 1. If a claimant is 70 years of age or older or
14-32 suffers from an illness or condition which raises a substantial
14-33 medical doubt that the claimant will survive until a determination
14-34 is made by a screening panel, the claimant may file a written
14-35 request with the Division to give preference in scheduling the
14-36 hearing of the claim filed by the claimant. The request must set
14-37 forth facts showing that the claimant is 70 years of age or older or
14-38 suffers from an illness or condition which raises a substantial
14-39 medical doubt that the claimant will survive until a determination
14-40 is made by a screening panel.
14-41 2. The Division shall schedule the hearing of claims for
14-42 which preference has been granted pursuant to subsection 1 based
14-43 on the order in which the Division received the requests for
14-44 preference.
15-1 Sec. 29. 1. Upon the request of the Division or counsel for
15-2 a patient, a custodian of any health care records shall not allow
15-3 any person to review any of those records relevant to a claim filed
15-4 with the Division before those records are transferred to a
15-5 requesting party or the authority issuing the subpoena.
15-6 2. A violation of this section is punishable as a misdemeanor.
15-7 Sec. 30. 1. If a screening panel finds in favor of a claimant
15-8 and a cause of action involving medical malpractice or dental
15-9 malpractice is thereafter filed by the claimant in district court, a
15-10 settlement conference must be held as provided in NRS 41A.081.
15-11 2. If the determination of the screening panel is not in favor
15-12 of the claimant, the claimant may file an action in court. If the
15-13 claimant does not obtain a judgment in his favor in court, the
15-14 defendant must be awarded reasonable costs and attorney’s fees
15-15 incurred after the date of filing the action in court.
15-16 3. If the screening panel is unable, for any reason, to reach a
15-17 decision, the claimant may file a civil action or proceed no further
15-18 with the claim.
15-19 4. If the claimant files a civil action in district court, a person
15-20 may not be named as a party in the action unless the person was
15-21 named as a party in the claim which was filed with the Division
15-22 and considered by the screening panel.
15-23 Sec. 31. 1. Unless the written findings of a screening panel
15-24 are not admissible pursuant to subsection 3 of section 16 of this
15-25 act, in any action for medical malpractice tried before a jury, the
15-26 following instructions must be given:
15-27 (a) If testimony of an expert was given at the review by the
15-28 screening panel:
15-29 During the course of this trial certain evidence was admitted
15-30 concerning the findings of a screening panel. The findings of the
15-31 panel were based upon a review of the medical records of the
15-32 claimant and the testimony of medical experts based upon
15-33 the review by the experts of those records. These findings are to be
15-34 given the same weight as any other evidence, but are not
15-35 conclusive on your determination of the case.
15-36 (b) If testimony of an expert was not given at the review by the
15-37 screening panel:
15-38 During the course of this trial certain evidence was admitted
15-39 concerning the findings of a screening panel. The findings of the
15-40 panel were based solely upon a review of the medical records of
15-41 the claimant. These findings are to be given the same weight as
15-42 any other evidence, but are not conclusive on your determination
15-43 of the case.
15-44 2. Unless the written findings of a screening panel are not
15-45 admissible pursuant to subsection 3 of section 16 of this act, in
16-1 any action for dental malpractice tried before a jury, the following
16-2 instructions must be given:
16-3 (a) If testimony of an expert was given at the review by the
16-4 screening panel:
16-5 During the course of this trial certain evidence was admitted
16-6 concerning the findings of a screening panel. The findings of the
16-7 panel were based upon a review of dental records of the claimant
16-8 and the testimony of experts based upon the review by the experts
16-9 of those records. These findings are to be given the same weight as
16-10 any other evidence, but are not conclusive on your determination
16-11 of the case.
16-12 (b) If testimony of an expert was not given at the review by the
16-13 screening panel:
16-14 During the course of this trial certain evidence was admitted
16-15 concerning the findings of a screening panel. The findings of the
16-16 panel were based solely upon a review of the dental records of the
16-17 claimant. These findings are to be given the same weight as any
16-18 other evidence, but are not conclusive on your determination of
16-19 the case.
16-20 Sec. 32. A screening panel or any of its members acting
16-21 pursuant to sections 12 to 32, inclusive, of this act that initiates or
16-22 assists in any proceeding concerning a claim of medical
16-23 malpractice or dental malpractice against a physician or dentist is
16-24 immune from any civil action for that initiation or assistance or
16-25 any consequential damages if the panel or members acted without
16-26 malicious intent.
16-27 Sec. 33. 1. Except as otherwise provided in subsection 2
16-28 and except as further limited in subsection 3, in an action for
16-29 damages for medical malpractice or dental malpractice where the
16-30 alleged malpractice occurred on or after the effective date of this
16-31 act, the noneconomic damages awarded to each plaintiff from
16-32 each defendant must not exceed $350,000, except that if the
16-33 plaintiff is not entitled to receive economic damages for lost wages
16-34 the noneconomic damages awarded must not exceed $500,000.
16-35 2. In an action for damages for medical malpractice or dental
16-36 malpractice where the alleged malpractice occurred on or after the
16-37 effective date of this act, the limitation on noneconomic damages
16-38 set forth in subsection 1 does not apply in the following
16-39 circumstances and types of cases:
16-40 (a) A case in which the conduct of the defendant is determined
16-41 to constitute gross malpractice; or
16-42 (b) A case in which, following return of a verdict by the jury or
16-43 a finding of damages in a bench trial, the court determines, by
16-44 clear and convincing evidence admitted at trial, that an award in
16-45 excess of the limits on the amount of noneconomic damages that
17-1 may be awarded to a plaintiff is justified because of exceptional
17-2 circumstances.
17-3 3. Except as otherwise provided in subsection 4, in an action
17-4 for damages for medical malpractice or dental malpractice where
17-5 the alleged malpractice occurred on or after the effective date of
17-6 this act, in the circumstances and types of cases described in
17-7 subsections 1 and 2, the noneconomic damages awarded to each
17-8 plaintiff from each defendant must not exceed the amount of
17-9 money remaining under the professional liability insurance policy
17-10 limit covering the defendant after subtracting the economic
17-11 damages awarded to that plaintiff. Irrespective of the number of
17-12 plaintiffs in the action, in no event may any single defendant be
17-13 liable to the plaintiffs in the aggregate in excess of the
17-14 professional liability insurance policy limit covering that
17-15 defendant.
17-16 4. The limitation set forth in subsection 3 does not apply in
17-17 an action for damages for medical malpractice or dental
17-18 malpractice unless the defendant was covered by professional
17-19 liability insurance at the time of the occurrence of the alleged
17-20 malpractice and on the date on which the insurer receives notice
17-21 of the claim, in an amount of:
17-22 (a) Not less than $1,000,000 per occurrence; and
17-23 (b) Not less than $3,000,000 in the aggregate.
17-24 5. This section is not intended to limit the responsibility of
17-25 any defendant for the total economic damages awarded.
17-26 6. For the purposes of this section, “gross malpractice”
17-27 means failure to exercise the required degree of care, skill or
17-28 knowledge that amounts to:
17-29 (a) A conscious indifference to the consequences which may
17-30 result from the gross malpractice; and
17-31 (b) A disregard for and indifference to the safety and welfare
17-32 of the patient.
17-33 Sec. 34. NRS 41A.031 is hereby amended to read as follows:
17-34 41A.031 1. Except as otherwise provided in subsection 2 and
17-35 except as further limited in subsection 3, in an action for damages
17-36 for medical malpractice or dental malpractice [,] where the alleged
17-37 malpractice occurred on or after October 1, 2002, but before the
17-38 effective date of this act, the noneconomic damages awarded to
17-39 each plaintiff from each defendant must not exceed $350,000.
17-40 2. In an action for damages for medical malpractice or dental
17-41 malpractice [,] where the alleged malpractice occurred on or after
17-42 October 1, 2002, but before the effective date of this act, the
17-43 limitation on noneconomic damages set forth in subsection 1 does
17-44 not apply in the following circumstances and types of cases:
18-1 (a) A case in which the conduct of the defendant is determined
18-2 to constitute gross malpractice; or
18-3 (b) A case in which, following return of a verdict by the jury or
18-4 a finding of damages in a bench trial, the court determines, by clear
18-5 and convincing evidence admitted at trial, that an award in excess of
18-6 $350,000 for noneconomic damages is justified because of
18-7 exceptional circumstances.
18-8 3. Except as otherwise provided in subsection 4, in an action
18-9 for damages for medical malpractice or dental malpractice [,] where
18-10 the alleged malpractice occurred on or after October 1, 2002, but
18-11 before the effective date of this act, in the circumstances and types
18-12 of cases described in subsections 1 and 2, the noneconomic damages
18-13 awarded to each plaintiff from each defendant must not exceed the
18-14 amount of money remaining under the professional liability
18-15 insurance policy limit covering the defendant after subtracting the
18-16 economic damages awarded to that plaintiff. Irrespective of the
18-17 number of plaintiffs in the action, in no event may any single
18-18 defendant be liable to the plaintiffs in the aggregate in excess of the
18-19 professional liability insurance policy limit covering that defendant.
18-20 4. The limitation set forth in subsection 3 does not apply in an
18-21 action for damages for medical malpractice or dental malpractice
18-22 unless the defendant was covered by professional liability insurance
18-23 at the time of the occurrence of the alleged malpractice and on the
18-24 date on which the insurer receives notice of the claim, in an amount
18-25 of:
18-26 (a) Not less than $1,000,000 per occurrence; and
18-27 (b) Not less than $3,000,000 in the aggregate.
18-28 5. This section is not intended to limit the responsibility of any
18-29 defendant for the total economic damages awarded.
18-30 6. For the purposes of this section, “gross malpractice” means
18-31 failure to exercise the required degree of care, skill or knowledge
18-32 that amounts to:
18-33 (a) A conscious indifference to the consequences which may
18-34 result from the gross malpractice; and
18-35 (b) A disregard for and indifference to the safety and welfare of
18-36 the patient.
18-37 Sec. 35. NRS 41A.097 is hereby amended to read as follows:
18-38 41A.097 1. Except as otherwise provided in subsection 3, an
18-39 action for injury or death against a provider of health care may not
18-40 be commenced more than 4 years after the date of injury or 2 years
18-41 after the plaintiff discovers or through the use of reasonable
18-42 diligence should have discovered the injury, whichever occurs first,
18-43 for:
19-1 (a) Injury to or the wrongful death of a person occurring before
19-2 October 1, 2002, based upon alleged professional negligence of the
19-3 provider of health care;
19-4 (b) Injury to or the wrongful death of a person occurring before
19-5 October 1, 2002, from professional services rendered without
19-6 consent; or
19-7 (c) Injury to or the wrongful death of a person occurring before
19-8 October 1, 2002, from error or omission in practice by the provider
19-9 of health care.
19-10 2. Except as otherwise provided in subsection 3, an action for
19-11 injury or death against a provider of health care may not be
19-12 commenced more than 3 years after the date of injury or 2 years
19-13 after the plaintiff discovers or through the use of reasonable
19-14 diligence should have discovered the injury, whichever occurs first,
19-15 for:
19-16 (a) Injury to or the wrongful death of a person occurring on or
19-17 after October 1, 2002, based upon alleged professional negligence of
19-18 the provider of health care;
19-19 (b) Injury to or the wrongful death of a person occurring on or
19-20 after October 1, 2002, from professional services rendered without
19-21 consent; or
19-22 (c) Injury to or the wrongful death of a person occurring on or
19-23 after October 1, 2002, from error or omission in practice by the
19-24 provider of health care.
19-25 3. This time limitation is tolled [for] :
19-26 (a) For any period during which the provider of health care has
19-27 concealed any act, error or omission upon which the action is based
19-28 and which is known or through the use of reasonable diligence
19-29 should have been known to him.
19-30 (b) In any action governed by the provisions of sections 12 to
19-31 32, inclusive, of this act from the date on which a claimant files a
19-32 claim for review by a screening panel until 30 days after the date
19-33 on which the screening panel notifies the claimant, in writing, of
19-34 its findings. The provisions of this paragraph apply to an action
19-35 against the provider of health care and to an action against any
19-36 person or governmental entity that is alleged by the claimant to be
19-37 liable vicariously for the medical malpractice or dental
19-38 malpractice of the provider of health care, if the provider, person
19-39 or governmental entity has received notice of the filing of a claim
19-40 for review by a screening panel within the limitation of time
19-41 provided in subsection 1.
19-42 Sec. 36. NRS 49.245 is hereby amended to read as follows:
19-43 49.245 There is no privilege under NRS 49.225 or 49.235:
19-44 1. For communications relevant to an issue in proceedings to
19-45 hospitalize the patient for mental illness, if the doctor in the course
20-1 of diagnosis or treatment has determined that the patient is in need
20-2 of hospitalization.
20-3 2. As to communications made in the course of a court-ordered
20-4 examination of the condition of a patient with respect to the
20-5 particular purpose of the examination unless the court orders
20-6 otherwise.
20-7 3. As to written medical or hospital records relevant to an issue
20-8 of the condition of the patient in any proceeding in which the
20-9 condition is an element of a claim or defense.
20-10 4. In a prosecution or mandamus proceeding under chapter
20-11 441A of NRS.
20-12 5. As to any information communicated to a physician in an
20-13 effort unlawfully to procure a dangerous drug or controlled
20-14 substance, or unlawfully to procure the administration of any such
20-15 drug or substance.
20-16 6. As to any written medical or hospital records which are
20-17 furnished in accordance with the provisions of NRS 629.061.
20-18 7. As to records that are required by chapter 453 of NRS to be
20-19 maintained.
20-20 8. If the services of the physician are sought or obtained to
20-21 enable or aid a person to commit or plan to commit fraud or any
20-22 other unlawful act in violation of any provision of chapter 616A,
20-23 616B, 616C, 616D or 617 of NRS which the person knows or
20-24 reasonably should know is fraudulent or otherwise unlawful.
20-25 9. In a review before a screening panel pursuant to sections
20-26 12 to 32, inclusive, of this act.
20-27 Sec. 37. Chapter 690B of NRS is hereby amended by adding
20-28 thereto a new section to read as follows:
20-29 An insurer shall not take any retaliatory action, including,
20-30 without limitation, cancelling or failing to renew a policy of
20-31 insurance or renewing a policy of insurance with altered policy or
20-32 contract terms, against a physician or dentist who, during a
20-33 settlement conference held pursuant to NRS 41A.081, indicates his
20-34 desire to settle the claim for or within his policy limits.
20-35 Sec. 38. NRS 690B.045 is hereby amended to read as follows:
20-36 690B.045 Except as more is required in NRS 630.3067 and
20-37 633.526:
20-38 1. Each insurer which issues a policy of insurance covering the
20-39 liability of a practitioner licensed pursuant to chapters 630 to 640,
20-40 inclusive, of NRS for a breach of his professional duty toward a
20-41 patient shall report to the board which licensed the practitioner
20-42 within [30] 45 days each settlement or award made or judgment
20-43 rendered by reason of a claim, if the settlement, award or judgment
20-44 is for more than $5,000, giving the name and address of the claimant
20-45 and the practitioner and the circumstances of the case.
21-1 2. A practitioner licensed pursuant to chapters 630 to 640,
21-2 inclusive, of NRS who does not have insurance covering liability for
21-3 a breach of his professional duty toward a patient shall report to the
21-4 board which issued his license within [30] 45 days of each
21-5 settlement or award made or judgment rendered by reason of a
21-6 claim, if the settlement, award or judgment is for more than $5,000,
21-7 giving his name and address, the name and address of the claimant
21-8 and the circumstances of the case.
21-9 3. These reports are public records and must be made available
21-10 for public inspection within a reasonable time after they are received
21-11 by the licensing board.
21-12 Sec. 39. NRS 690B.050 is hereby amended to read as follows:
21-13 690B.050 1. Each insurer which issues a policy of insurance
21-14 covering the liability of a physician licensed under chapter 630 of
21-15 NRS or an osteopathic physician licensed under chapter 633 of NRS
21-16 for a breach of his professional duty toward a patient shall report to
21-17 the Commissioner within [30] 45 days each settlement or award
21-18 made or judgment rendered by reason of a claim, giving the name
21-19 and address of the claimant and physician and the circumstances of
21-20 the case.
21-21 2. The Commissioner shall report to the Board of Medical
21-22 Examiners or the State Board of Osteopathic Medicine, as
21-23 applicable, within 30 days after receiving the report of the insurer,
21-24 each claim made and each settlement, award or judgment.
21-25 Sec. 40. Chapter 695G of NRS is hereby amended by adding
21-26 thereto a new section to read as follows:
21-27 1. Except as otherwise provided in subsection 3, each health
21-28 care plan offered or issued by a managed care organization that
21-29 contracts with providers of health care for the provision of health
21-30 care services to insureds must provide that the managed care
21-31 organization will enter into a contract with any provider of health
21-32 care for the provision of covered health care services to its
21-33 insureds if:
21-34 (a) The provider of health care is qualified under the laws of
21-35 this state to provide such care; and
21-36 (b) The provider of health care agrees to accept the rates,
21-37 terms and conditions established for other providers of health care
21-38 by the managed care organization.
21-39 2. An evidence of coverage for a health care plan subject to
21-40 the provisions of this chapter that is delivered, issued for delivery
21-41 or renewed on or after the effective date of this act has the legal
21-42 effect of including the provisions required by this section, and any
21-43 provision of the evidence of coverage or renewal thereof that is in
21-44 conflict with this section is void.
22-1 3. The provisions of this section do not apply to any plan for
22-2 providing welfare benefits for employees of more than one
22-3 employer as described in NRS 679B.139.
22-4 Sec. 41. NRS 41A.071 is hereby repealed.
22-5 Sec. 42. Sections 12 to 32, inclusive, of this act do not apply to
22-6 an action involving medical malpractice or dental malpractice filed
22-7 before the effective date of this act.
22-8 Sec. 43. 1. Until the Division of Insurance of the Department
22-9 of Business and Industry collects sufficient fees to pay for the
22-10 administrative costs of the screening panels established pursuant to
22-11 sections 12 to 32, inclusive, of this act, the Division shall apportion
22-12 such administrative costs among the Board of Medical Examiners,
22-13 the State Board of Osteopathic Medicine and the Board of Dental
22-14 Examiners of Nevada as follows:
22-15 (a) The Board of Medical Examiners shall pay a portion of the
22-16 administrative costs based on the ratio of the number of physicians
22-17 licensed pursuant to chapter 630 of NRS to the total number of
22-18 physicians, osteopathic physicians and dentists licensed pursuant to
22-19 the provisions of chapters 630, 631 and 633 of NRS.
22-20 (b) The State Board of Osteopathic Medicine shall pay a portion
22-21 of the administrative costs based on the ratio of the number of
22-22 osteopathic physicians licensed pursuant to chapter 633 of NRS to
22-23 the total number of physicians, osteopathic physicians and dentists
22-24 licensed pursuant to the provisions of chapters 630, 631 and 633 of
22-25 NRS.
22-26 (c) The Board of Dental Examiners of Nevada shall pay a
22-27 portion of the administrative costs based on the ratio of the number
22-28 of dentists licensed pursuant to chapter 631 of NRS to the total
22-29 number of physicians, osteopathic physicians and dentists licensed
22-30 pursuant to the provisions of chapters 630, 631 and 633 of NRS.
22-31 2. Any money received by the Division of Insurance pursuant
22-32 to the provisions of this section must be deposited with the State
22-33 Treasurer for credit to the account for the Division of Insurance in
22-34 the State General Fund. The administrative costs of the screening
22-35 panels must be paid from the account.
22-36 3. If a board fails to pay its apportioned share of the
22-37 administrative costs required by this section, the Commissioner of
22-38 Insurance may refer the nonpayment to the Office of the Attorney
22-39 General for collection of the apportioned share and any costs
22-40 incurred.
22-41 4. For the purposes of this section, “administrative costs”
22-42 means:
22-43 (a) All costs incurred to create the tentative screening panels,
22-44 train the members of the tentative screening panels, appoint
23-1 members to the screening panels and enable such members to carry
23-2 out the duties of the screening panels; and
23-3 (b) Any other costs reasonably incurred in carrying out the
23-4 purposes of sections 12 to 32, inclusive, of this act.
23-5 Sec. 44. 1. For a policy of insurance covering the liability of
23-6 a practitioner licensed pursuant to chapter 630, 631, 632 or 633 of
23-7 NRS for a breach of his professional duty toward a patient that is
23-8 issued or renewed on or after the effective date of this act, the
23-9 insurer shall reduce the premium for the policy to an amount which:
23-10 (a) Must be determined by the Commissioner of Insurance; and
23-11 (b) Must be less than the premium for the same coverage in
23-12 effect on the effective date of this act.
23-13 2. If, on or after the effective date of this act, a practitioner
23-14 licensed pursuant to chapter 630, 631, 632 or 633 of NRS applies
23-15 for the first time for a policy of insurance covering the liability of
23-16 the practitioner for a breach of his professional duty toward a
23-17 patient, the premium for the policy:
23-18 (a) Must be determined by the Commissioner of Insurance; and
23-19 (b) Must be less than the premium for similarly situated risks in
23-20 effect on the effective date of this act.
23-21 3. Any separate affiliate of an insurer, established after the
23-22 effective date of this act, is subject to the provisions of this section
23-23 and shall reduce its premiums to amounts which:
23-24 (a) Must be determined by the Commissioner of Insurance; and
23-25 (b) Must be less than the insurer’s premiums in effect on the
23-26 effective date of this act.
23-27 4. In determining the amount by which premiums must be
23-28 reduced pursuant to this section, the Commissioner of Insurance
23-29 shall consider:
23-30 (a) Whether the reduction in premiums permits a fair and
23-31 reasonable return to the insurer; and
23-32 (b) Whether the reduction in premiums is otherwise not
23-33 confiscatory.
23-34 5. During the period beginning on the effective date of this act
23-35 and ending on December 1, 2004:
23-36 (a) Premiums reduced pursuant to this section may be increased
23-37 only in accordance with the provisions of this subsection or chapter
23-38 686B of NRS.
23-39 (b) An insurer subject to the provisions of this section may
23-40 apply to the Commissioner of Insurance pursuant to this subsection
23-41 to increase a premium set pursuant to this section if the premium set
23-42 pursuant to this section fails to provide a fair and reasonable return
23-43 to the insurer or is otherwise confiscatory.
23-44 (c) An application by an insurer pursuant to this subsection:
23-45 (1) Must be in writing;
24-1 (2) Must contain a detailed analysis of the reasons the
24-2 premium set pursuant to this section fails to provide a fair and
24-3 reasonable return to the insurer or is otherwise confiscatory,
24-4 including, without limitation, relevant facts and provisions of law;
24-5 and
24-6 (3) Must contain a proposed premium which:
24-7 (I) The insurer believes is the minimum premium that
24-8 provides a fair and reasonable return to the insurer and is otherwise
24-9 not confiscatory; and
24-10 (II) Is equal to or less than the premium charged by the
24-11 insurer before the reduction pursuant to this section.
24-12 (d) After a hearing, the Commissioner of Insurance may approve
24-13 the application of an insurer pursuant to this subsection, provided
24-14 that the Commissioner:
24-15 (1) Finds that the premium set pursuant to this section fails to
24-16 provide a fair and reasonable return to the insurer or is otherwise
24-17 confiscatory; and
24-18 (2) Sets the premium at the minimum amount that provides a
24-19 fair and reasonable return to the insurer and is otherwise not
24-20 confiscatory.
24-21 (e) An insurer who submits an application pursuant to this
24-22 subsection may charge the premium proposed in the application
24-23 until the Commissioner of Insurance approves or disapproves the
24-24 application, provided that:
24-25 (1) Upon approval of the application, the insurer immediately
24-26 begins to charge the premium set by the Commissioner of Insurance
24-27 pursuant to this subsection and refunds any excess portion of the
24-28 previously paid premiums, with interest, to the person who paid the
24-29 premiums; and
24-30 (2) Upon disapproval of the application, the insurer
24-31 immediately begins to charge the premium set pursuant to this
24-32 section and refunds the excess portion of the previously paid
24-33 premiums, with interest, to the person who paid the premiums.
24-34 (f) If an insurer submits an application pursuant to this
24-35 subsection, the insurer may not submit another application pursuant
24-36 to this subsection regarding the same premium until no sooner than
24-37 60 days after the date of the decision of approval or disapproval of
24-38 the Commissioner of Insurance with regard to the first application.
24-39 6. Notwithstanding any previous notice of cancellation or
24-40 renewal, an insurer who has issued a policy of insurance covering
24-41 the liability of a practitioner licensed pursuant to chapter 630, 631,
24-42 632 or 633 of NRS for a breach of his professional duty toward a
24-43 patient that is in effect on the effective date of this act, and has a
24-44 scheduled date for termination of the policy before December 1,
24-45 2004, shall not terminate or cancel that policy before December 1,
25-1 2004, or refuse to renew or extend that policy through
25-2 November 30, 2004, for the purpose of avoiding the reduction in
25-3 premiums required by this section.
25-4 7. An insurer who cancels or fails to renew policies of
25-5 insurance covering the liability of practitioners licensed pursuant to
25-6 chapter 630, 631, 632 or 633 of NRS for a breach of their
25-7 professional duty toward patients at a rate that exceeds the insurer’s
25-8 average monthly rate of cancellation or failure to renew,
25-9 respectively, for the preceding 24 months by more than 10 percent
25-10 during any 30-day period between the effective date of this act and
25-11 December 1, 2004, is required to show cause immediately to the
25-12 Commissioner of Insurance why the insurer is not in violation of
25-13 this section. Any violation of this section is a violation of the
25-14 Nevada Insurance Code. If the Commissioner of Insurance
25-15 determines that the reason for the increase in the rate of cancellation
25-16 of or failure to renew policies is an attempt to circumvent the
25-17 reduction in premiums required by this section, the Commissioner
25-18 may take appropriate disciplinary action.
25-19 8. For the purposes of this section:
25-20 (a) “Insurer” has the meaning ascribed to it in NRS 679A.100.
25-21 (b) “Premium” has the meaning ascribed to it in NRS 679A.115.
25-22 Sec. 45. 1. Not later than 90 days after the effective date of
25-23 this act, an insurer subject to the provisions of section 44 of this act
25-24 shall submit a proposal to reduce premiums to the lowest amount
25-25 possible that continues to permit a fair and reasonable return to the
25-26 insurer and is not otherwise confiscatory, taking into consideration
25-27 the savings experienced and reasonably anticipated as a result of the
25-28 passage of Assembly Bill No. 1 of the 18th Special Session of the
25-29 Nevada Legislature.
25-30 2. Until the Commissioner of Insurance determines the amount
25-31 by which an insurer must reduce premiums, the insurer may
25-32 continue to charge the current premium. Upon such a determination
25-33 of the Commissioner of Insurance, the insurer shall immediately
25-34 begin to charge the premium set by the Commissioner of Insurance
25-35 and refund any excess portion of the previously paid premiums, with
25-36 interest, to the person who paid the premiums.
25-37 Sec. 46. Section 44 of this act expires by limitation on July 1,
25-38 2007.
25-39 Sec. 47. 1. At the general election held in 2004, the
25-40 provisions of this act must be submitted to the registered voters of
25-41 this state, pursuant to Section 2 of Article 19 of the Nevada
25-42 Constitution, as a different and competing measure enacted by the
25-43 Legislature on the same subject contained in the initiative petition
25-44 that was presented to the Legislature by the Secretary of State on
25-45 February 3, 2003.
26-1 2. If the initiative petition that was presented to the Legislature
26-2 by the Secretary of State on February 3, 2003, is invalidated or for
26-3 any other reason is not submitted to the registered voters of this state
26-4 at the general election held in 2004, the provisions of this act also
26-5 must not be submitted to the registered voters of this state at that
26-6 general election and are thereafter void.
26-7 3. This act shall become law and take effect in the manner set
26-8 forth in Section 2 of Article 19 of the Nevada Constitution.
26-9 TEXT OF REPEALED SECTION
26-10 41A.071 Dismissal of action filed without affidavit of
26-11 medical expert supporting allegations. If an action for medical
26-12 malpractice or dental malpractice is filed in the district court, the
26-13 district court shall dismiss the action, without prejudice, if the action
26-14 is filed without an affidavit, supporting the allegations contained in
26-15 the action, submitted by a medical expert who practices or has
26-16 practiced in an area that is substantially similar to the type of
26-17 practice engaged in at the time of the alleged malpractice.
26-18 H