Revisiting the crisis in Nevada: Tort reform in need of reform

Headline-grabbing stories about Las Vegas trauma departments forced to close and Nevada women having a hard time finding obstetricians have died down since state legislators passed tort reform in August 2002. But physicians say the crisis isn't over.

Lawsuits in Las Vegas appear to be on the rise. Statistics gathered by the Clark County Medical Society show that the number of lawsuits filed against health care professionals in the county that Las Vegas calls home increased nearly 36% between 2002 and 2003. There was a 200% increase between 2001 and 2003, according to the statistics.

Trial lawyers say the change stems from the elimination of a screening panel that once reviewed proposed lawsuits before they could be filed. But doctors disagree, saying that the screening panel formerly eliminated one-third of proposed lawsuits and that the volume now being filed exceeds that amount.

Other signs point to a continuing problem. An economic study completed for the National Tax Limitation Committee concluded that tort reform measurers passed in 2002 were missing key reforms that would help keep insurance affordable.

And a company insuring about 125 Nevada physicians announced earlier this year that it would stop renewing policies. It is the third insurer to pull out of the market since tort reform passed.

"We take that as another sign of the ongoing problem," said Las Vegas oncologist Edwin Kingsley, MD, Clark County Medical Society president.

The American Medical Association lists Nevada as one of 19 states with a medical liability crisis. Rising insurance premiums hit Las Vegas doctors the hardest in recent years.

There may be disagreement on how many physicians have left because of liability premium increases, and statistics are hard to find, but there is a general consensus that more doctors will leave, retire or cut back on high-risk services if the liability climate doesn't improve.

Dr. Kingsley said he still sees some physicians leaving the state or retiring early, most recently a group of three pulmonologists. And, he said, a state that used to attract 200 to 250 new physicians annually attracted only 26 practicing physicians in 2002. Only seven of those went to Clark County, which has one of the fastest-growing populations in the nation.

Las Vegas gynecologist Garn Mabey Jr., MD, who was elected to the Nevada Assembly in 2002, said he believes the number of physicians moving their practices has tapered off for now, and so has the number of physicians retiring early or curtailing practices. And although patients might not get their first choice of a physician, there are still enough physicians left to cover obstetrics, he said.

Those who were going to leave have already done so, said Dr. Mabey, who gave up the obstetrics portion of his practice in part because of soaring medical liability rates.

"Those who stayed have said, 'I'll keep working,' " he said. "I haven't seen other doctors leaving town."

Doctors are now hoping passage of a fall ballot initiative will improve the conditions under which physicians in the state practice by making Nevada's law more similar to California's Medical Injury Compensation Reform Act. Physicians point to the MICRAlaw as the gold standard for tort reform. "A lot of physicians left and a lot are waiting to see what happens in November," said Las Vegas orthopedic surgeon Mark Sylvain, MD. "It would be discouraging to most physicians if it doesn't pass. But I think the feeling right now is that they are optimistic it will be passed."

"It's our No. 1 county priority right now," Dr. Kingsley added.

Taking it to the people

The Nevada Legislature last session failed to pass a bill of tort reform initiatives that physicians said would strengthen reforms passed in 2002. The ballot initiative, which is commonly known as "Keep Our Doctors in Nevada," is set to go before voters in November. It's believed to be the first time voters in any state have been asked to pass tort reform measures. In Texas last year, the Legislature passed reforms and then voters deemed the reforms constitutional.

The initiative calls for:

• Limiting attorney fees to 40% of the first $50,000; 33.3% of the next $50,000; 25% of the next $500,000 and 15% of everything over $600,000.
• Telling jurors before the verdict whether an insurance company or other party has paid for medical expenses.
• Allowing future damages greater than $50,000 to be paid over time rather than in one lump sum.
• Strengthening the $350,000 cap on noneconomic damages by eliminating a judge's right to eliminate the cap and apply the cap "per injury" no matter how many plaintiffs or defendants are named in the case.
• Holding physicians responsible only for their percentage of fault in the injury.

"The ballot initiative in November could be the saving grace for Nevada," said Dennis Coffin, an insurance agent in Las Vegas who sells physician policies. "The hard caps on noneconomic damages and the fact that patients will get more money because the fee structure for the lawyers would be reduced would help."

A different interpretation

Trial lawyers disagree that the initiative will help physicians in the long run.

Gerald Gillock, president-elect of the Nevada Trial Lawyers Assn., said he thought periodic payments could subject physicians to the court's jurisdiction for longer periods of time. Also, he said, holding a physician responsible for only his or her portion of the damages could result in a physician being held responsible for more money than he or she would have been in the past. The current law does not dictate who pays what proportion of damages.

For example, a jury awards future economic damages at $3 million. A hospital is one-third negligent and the doctor is two-thirds negligent. Under today's law, $1 million could come from the doctor, covered by the insurance. The other $2 million could come from the hospital, covered by insurance. Under the proposed initiative, Gillock said, the hospital would be responsible for $1 million and the doctor would be responsible for $2 million even though his or her policy would cover only $1 million.

"Be careful what you wish for," Gillock said. "It's bad for doctors. ... Unfortunately I think it will pass, and I think we are going to see more doctors leave."