Nevada tort reform ballot fight now brewing

Doctors say initiatives backed by trial lawyers undermine their efforts.

By Tanya Albert amednews correspondent — Posted Sept. 13, 2004

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Nevada physicians and trial lawyers are pitching separate ballot initiatives in the Nov. 2 general election, with each side describing its proposals as the way to stabilize skyrocketing insurance rates.

When talking about the need for changes, both sides point to the same statistics. Each says a medical liability insurance company's request for a 26% rate increase after the state Legislature in 2002 passed tort reform shows that doctors need more help on premiums.

But the two sides' solutions are fundamentally different, setting the stage for an election season during which the airwaves will be crowded with competing liability reform ads touting the "best" way to stop physicians from leaving the state, retiring early or discontinuing high-risk procedures.

Doctors and liability insurers are pushing for a measure that would strengthen Nevada's existing $350,000 noneconomic damages cap, limit attorneys' fees, allow doctors to pay awards over time, require that juries be told what medical expenses insurance companies have already covered, and hold physicians responsible only for their portion of damages.

Lawyers are asking voters to approve two ballot questions. The first calls for insurers to roll back rates. The second would require that lawyers who willfully initiate or defend frivolous litigation be held responsible for attorney fees, court costs and other expenses.

The two camps are vigorously fighting for their ballot questions and arguing that the devil is in the details of the others' proposals. The details, each side says, would hurt Nevada patients, not help them.

Early polling shows that all three initiatives could pass.

The initiative supported by doctors and insurance companies will appear as Question 3 on the ballot. Doctors say the California-style tort reform commonly known as MICRA is the proven way to reduce medical liability insurance rates.

Question 3, Nevada doctors say, would strengthen the existing tort reform law in a way that would make it similar to California's law. The initiative would ensure a stable environment that could start attracting new liability carriers and that would allow insurers to set more predictable, reasonable rates, physicians say.

"We have an access problem in Nevada right now," said Ryan Erwin, campaign manager for Keep Our Doctors in Nevada. "This initiative can help change that. It's clear that MICRA has worked in California."

Trial lawyers disagree. They say the initiative wouldn't ensure that any savings the insurance companies receive would be passed on to doctors.

"If the doctors were to read No. 3, they would not vote for it," said Gerald Gillock, president-elect of the Nevada Trial Lawyers Assn.

Holding physicians responsible for only their portion of damages would hurt them in the long run because payments in medical malpractice cases would come out of physicians' pockets, rather than from insurance companies, he said. For example, in today's system, if three doctors with $1 million policies were sued and a jury awarded $3 million, each physician's insurer would pay $1 million.

Under the proposal, if one physician were found 80% responsible, that doctor would then be responsible for more than the amount his or her insurance policy covered, Gillock said.

Putting a hold on premiums

Trial lawyers say their initiatives -- Nos. 4 and 5 -- would foster a better insurance environment.

Question 4 proposes rolling back insurance premiums next year. They would be reduced 20% or more from their Dec. 1, 2005, levels. Gillock said such a move would be similar to what was done in California years ago.

Question 5 proposes stopping frivolous lawsuits and protecting people's legal rights by, among other things, prohibiting the Legislature from interfering with the judgment awarded by a jury or with the way a person may hire and pay a lawyer.

"It wasn't until California did something to roll back rates that insurance companies lowered their rates," Gillock said. "Four and five will help doctors immensely."

Doctors and insurers say they believe the proposals are deceiving.

Wording lower down in Question 4 would essentially wipe out reforms under Question 3 if both were to pass, they said.

"The titles sound good," said Jim Denton, spokesman for "No On 4 And 5," a group campaigning against those initiatives. "But if you read both petitions, you see it will create another medical malpractice crisis."

Denton said insurers in all lines of business would be less willing to come to the state if they were forced to cut rates. The state already has standards defining frivolous lawsuits, and the proposal under Question 5 would make it easier for people to file junk lawsuits in Nevada, he added.

"It would open the floodgates to have every abusive lawsuit in the U.S. filed here," Denton said.

If passed, the three initiatives would be handled differently. Question 3 would become law because doctors already have taken the proposal to the Legislature. When the Legislature failed to act on it, lawmakers sent the question to the voters.

Questions 4 and 5, however, would have to go back before voters in 2006 because they have not been considered by the Legislature.

Doctors worry that if all three pass this year, their reforms wouldn't carry weight with insurance companies, which would wait for a final outcome for the trial lawyers' proposals. "It would place the entire medical liability system in limbo," Denton said.

Nevada isn't the only state where voters will face tort reform issues in November. Florida physicians and trial lawyers are in the midst of their own ballot-box battle, asking voters to OK constitutional amendments that each says will alleviate medical liability problems.

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