Nevada Supreme Court to decide limit of obstetrician's liability
■ Physicians say the case may indicate whether constitutional challenges to the state's current medical liability reforms will arise.
Nevada obstetrician Adam Levy, MD, doesn't know whether he will have to pay $300,000 or $5 million for a jury verdict against him.
The state Supreme Court will decide after having heard his appeal in February. Dr. Levy is challenging a lower court interpretation of 1987 and 1989 state tort reforms. He says the laws should limit his liability to $300,000, but the lower court disagreed.
The Nevada State Medical Assn. says the outcome of the case could be an indicator of how the courts will interpret more recent 2002 legislative reforms designed to hold doctors financially responsible for a proportion similar to their share of fault in medical liability cases.
In the case before the high court, a Clark County jury in 2001 awarded $6 million to patient Howard Watts, who was born brain-damaged in 1995. A jury found Dr. Levy and Kenneth Turner, MD, a Las Vegas obstetrician-gynecologist, each 5% responsible for the injury. It found the St. Ana Birthing Center 90% responsible.
The birthing center did not have insurance and went out of business. Dr. Turner settled for $1 million. Now the lower court is holding Dr. Levy liable for the remainder of the award under an old 1977 joint and several liability statute.
The lower court said that the 1977 statute does not limit physicians' monetary responsibility proportional to the part they contributed to an injury occurring.
But Dr. Levy is asking the Supreme Court to rule that he is responsible for only his portion of the damages, arguing that the Legislature enacted reforms in 1989 that intended several liability for doctors in medical liability cases, which physicians say the courts have continued to ignore.
NSMA, which filed a friend-of-the-court brief in support of Dr. Levy, argues that the state's current several liability law, adopted in a 2002 special session of the Legislature, may be in jeopardy of "hostile judicial interpretation," because the courts have failed to recognize prior reforms that intended for doctors to pay for only their share of fault.
"The case is important because physicians in high-risk specialties are in settings where they could easily become the 'deep pockets' in the case, and end up paying insurance as if they are fully liable," instead of proportional to their degree of fault, said NSMA Executive Director Larry Matheis.
But trial lawyers say that the case has no bearing on current reforms or a medical liability insurance crisis.
"Now the law is several liability, and doctors have what they want," said attorney Samuel Harding, who represents Watts in the appeal. The Supreme Court is interpreting prior statutes that will not have any impact beyond this case, he said.
Nevada reforms tricky area
The Nevada Legislature has addressed joint and several liability on numerous occasions, but the courts have been "wholly inconsistent" in upholding the reforms, according to the NSMA's brief.
In 1977, Nevada's joint and several liability law allowed an injured plaintiff in general liability cases to seek payment from any one of the culpable defendants, in spite of their individual liability, to ensure the award was covered, according to NSMA attorney Michael Rosenauer.
But the Legislature enacted 1987 reforms to apply several liability in general liability cases, with a few exceptions. The 1989 reforms were specific to limiting doctors' liability, he said, adding that the legislative actions were in response to a medical liability crisis.
"Therefore, each provider of health care in such a situation who is a defendant in a civil negligence action is severally liable to the plaintiff only for that portion of the judgment which represents the percentage of negligence attributable to his own acts," the NSMA brief states, citing the legislative record.
Daniel Polsenberg, Dr. Levy's attorney, agrees. The Legislature added a provision in 1989 "to make clear that two doctors who treat the same patient don't fall under joint liability and are severally liable," he said. The district court's decision to hold Dr. Levy responsible for the entire award indicates that the court is "not looking to implement what the Legislature tried to do," Polsenberg said.
But according to Harding, Watts' attorney, the lower court correctly interpreted the statutes.
He argues that several liability was restricted to cases where the plaintiff also was found at fault.
"There is no confusion over the law," Harding said.
If a plaintiff bringing a case is found "comparatively negligent," then several liability would apply, Harding argued.
"But if you have a plaintiff, in this case a fetus being born, where no comparative negligence can be asserted, then the law is joint and several liability," he said.
Implications for recent tort reforms?
Dr. Levy's case is the first opportunity the Supreme Court has had to address medical liability issues since the 2002 reforms were adopted, according to Matheis.
"This will be the first test and might give us some insight into the Supreme Court's thinking."
Among the other medical liability reforms signed by Gov. Kenny Guinn in 2002 was a $350,000 cap on noneconomic damages.
What the state hasn't seen is a reduction in premium rates, because cases like Dr. Levy's are still winding their way through the courts, Matheis said.
And if the state Supreme Court follows the lower court's lead, "doctors will be insuring for maximum liability, as opposed to just their relative risk," said attorney Rosenauer.
The Nevada Trial Lawyers Assn. also filed a brief supporting Watts, but declined to comment for this story.