Published 8/1/2008
Fred Redfern, MD

Medical liability reform comes full circle in Nevada

Nevada made national news when the only trauma center in Las Vegas (the University Medical Center [UMC] of Southern Nevada) closed July 3–13, 2002, due to the unavailability of general surgeons, trauma surgeons, and orthopaedic trauma surgeons. A dramatic increase in medical liability insurance rates had made the risks unbearable for surgeons to continue working at the trauma center. Jury rewards and claims were skyrocketing. Most obstetrician and gynecologists were unable to accept new patients.

After the UMC closed, the Nevada Attorney General issued an opinion providing that surgeons who had resigned could be covered by the state’s sovereign immunity cap if they signed contracts with the Trauma Center. UMC entered emergency 45-day contracts with 10 surgeons, enabling the Trauma Center to reopen and giving the governor time to call a special session of the legislature.

On Aug. 3, 2002, the legislature passed a tort reform bill that included the following provisions:

  • Noneconomic damages were generally capped at $350,000 for each defendant, but there were exceptions.
  • The statute of limitations was shortened from 4 years to 3 years.
  • Noneconomic damages for emergency services were capped at $50,000.
  • An affidavit was required to be filed for a case to proceed.
  • Medical expert witnesses were required to practice in the same field as the defendant.
  • The medical/dental screening panel was eliminated.

As happened in other states that implemented exceptions to the caps, this tort reform bill did little to decrease medical liability insurance premiums, which continued to rise.

The KODIN Initiative
The Keep Our Doctors in Nevada (KODIN) Initiative was created to obtain medical liability reform similar to that enacted in California. The November 2004 ballot included a question that would provide for a $350,000 hard cap on noneconomic damages per injury without exceptions, eliminate joint and several liability, limit attorney fees, and permit either the plaintiff or the defendant to request periodic payments.

Also on the ballot were two initiatives supported by the trial attorneys. If passed, these initiatives would have eliminated the caps on noneconomic damages as well as on attorney fees.

In response, the Nevada Orthopaedic Society obtained a grant from the American Association of Orthopaedic Surgeons (AAOS) to provide campaign materials for physicians to give to their patients and to distribute banners to each ortho­paedic office in the state. This campaign material promoted the virtues of voting “Yes on 3” and “No on 4 and 5.” In addition, the Nevada Orthopaedic Society had four billboards made stressing the importance of voting “Yes on 3” and “No on 4 and 5.” Question 3 passed by a 60 percent majority, while questions 4 and 5 were defeated.

During the next 3 years, the claims frequency stabilized. Plaintiffs have had no trouble finding attorneys to take their cases, despite the limits on attorney fees.

In addition, the state began to attract new physicians. In 2002, only 7 new physicians obtained a license to practice medicine in Nevada; by 2004, more than 212 physicians were applying each year.

Several new medical liability insurance carriers were formed, and others established branches in Nevada. I was just recently notified that my premiums would drop by 15 percent when I renew my policy in September.

One step forward, two steps back
Just as we began to see the effects of tort reform, an unprecedented challenge to the public image of medicine arose. The Southern Nevada Health District confirmed that at least six patients contracted hepatitis C at a gastroenterology endoscopy clinic, possibly due to unsafe practices with the re-use of syringes. More than 50,000 patients were notified, and most have been solicited in a class action lawsuit, regardless of their status for hepatitis C.

In March 2008, more than 3,000 medical liability suits were filed. Plaintiff attorneys are using the incident to urge repeal of the caps on noneconomic damages. The issue is eroding patient-physician trust and attracting both media and legislative attention.

As a result of this single incident, the quality of all health care available in Nevada is being questioned, and the future of tort reform is under attack.

The Nevada Orthopaedic Society is responding by increasing membership and preparing for a fight. Grants from the AAOS Board of Councilors (BOC) Health Policy Action Fund are helping us to establish a Political Action Committee and retain a lobbyist. In addition, a grant from the State Orthopaedic Societies Fund is being used, in part, to pay an executive director and fund meetings on the issues.

We have contracted a well-known, established lobbying firm and will be developing an advocacy campaign in coalition with the Nevada State Medical Association and KODIN. Our goal is to protect the wishes of the majority of voters in Nevada.

The Nevada Orthopaedic Society is grateful to the AAOS BOC State Legislative and Regulatory Issues and the State Orthopaedic Societies committees for their foresight and guidance. We rely on their help to see us through the future.

Fred Redfern, MD, is president of the Nevada Orthopaedic Society and a member of the AAOS Board of Councilors.