A congressional study and a national consumer advocacy group found that the health care industry in 2004 had spent millions of dollars exaggerating the malpractice crisis in Nevada and elsewhere in the country.
But the hard-hitting television campaign of five years ago, helped persuade voters to overwhelmingly approve an industry-backed ballot initiative imposing a $350,000 cap on malpractice damages for pain and suffering. Advocates said the intent of the measure, patterned after 1975 tort law changes enacted in California that imposed a $250,000 cap, was to reduce multimillion-dollar verdicts against doctors, which would lower their insurance premiums and reduce health care costs for the public.
Health care leaders say the initiative has done that in Nevada. They commissioned a study that concluded the cap on noneconomic damages is saving roughly $381 million a year in medical costs. The study showed the cap also has stabilized the medical profession and improved access to health care here.
A new health care crisis surfaced in the wake of the ballot initiative, however — the life-threatening hepatitis C outbreak, which the lawyers blame on a drop in accountability of the medical profession created by the cap.
With no incentive to settle cases, “the doctors have a license to kill and maim now,” personal injury lawyer Robert Eglet said.
Today, Clark County’s court system is struggling to deal with massive malpractice litigation over the hepatitis scare, which occurred at endoscopy clinics run by Dipak Desai, a doctor who at one time was politically connected. Thousands of former patients of Desai’s clinics, telling horror story after horror story, are suing him over cost-cutting measures they allege endangered their lives.
The litigation has added to a lingering backlog of medical malpractice cases that this week prompted the Nevada Supreme Court to step in and try to resolve through a special “settlement marathon.”
Trial lawyers blame the backlog on the cap, which has allowed doctors and their insurance companies to avoid settlements and drag out the malpractice suits as long as possible.
But the hepatitis crisis has put the lawyers in a mood to fight and attracted the interest of the Nevada Legislature, which is considering a bill this session to eliminate the $350,000 cap. The measure also would increase the time limit for bringing a malpractice case to trial after it is filed. Instead of having two years, plaintiffs would have up to five years to get to trial.
Passions are high on both sides, but this time the trial lawyers believe the political climate favors removing the cap.
“In light of the endoscopy scandal, the eyes of the voters have been opened,” said Reno attorney Bill Bradley, who lobbies for the Nevada Justice Association, the group formerly known as the Nevada Trial Lawyers Association. “The voters now realize that health care providers who violate known standards of safety should never be given the protection of laws that don’t hold them fully accountable.”
To Bradley and other personal injury attorneys such as Ed Bernstein, a lead plaintiff’s lawyer in the endoscopy litigation, this fight is not between lawyers and doctors, but rather between doctors and their insurance carriers and the patients who have been victims of negligent care.
“The only people willing to step up for the victims are the lawyers, who have seen the horrible pain caused by the health care industry,” Bradley said.
Bernstein added that the cap did not stop frivolous lawsuits against doctors, as the health care industry argued it would five years ago, but instead hurt the people who were injured the most by doctors.
Had there been no cap on damages, lawyers and lawmakers say, it’s possible Desai and the other doctors at his now-closed Endoscopy Center of Southern Nevada would not have been so eager to reuse the syringes and vials that allegedly infected patients with hepatitis C.
“You’re not going to be pushing the envelope to save nickels and dimes,” Anderson says.
Gerald Gillock, another plaintiff’s lawyer in the endoscopy litigation, says removing the cap will also bring accountability to the insurance industry, which pays malpractice judgments against physicians.
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