Las Vegas Sun

March 28, 2024

Doctors question reform bill

Dr. Larry Allen's normally busy waiting room was empty Thursday afternoon as he canceled appointments.

The day the state Legislature passed a medical malpractice reform bill, the internal medicine specialist closed down the office. He decided to close through Monday as a "reaction" to the passage of a law he and others say is fraught with loopholes.

"They (Legislature) did nothing but make things worse," Allen said of the special session this week. "The attorneys did fine, but the legislation is of no benefit to doctors or to the public."

Allen says he is thinking seriously of relocating to another state to practice.

After Assembly Bill 1 was passed early Thursday, doctors questioned whether a $350,000 cap on damages for pain and suffering really is a cap because of two exceptions -- one for gross malpractice and the other for cases where a judge finds "exceptional circumstances" warrant a larger award.

Under those conditions in the bill that becomes effective Oct. 1, awards would cap out at $1 million.

"With those exceptions, every lawsuit that will be filed will be for gross malpractice or exceptional circumstances, so there is no cap at all," said Allen, who is married to a Las Vegas attorney who defends doctors in medical malpractice cases.

Across the valley doctors were studying the Legislature's action to determine what it will mean for them and their practices. Some said the bill is a good step in the right direction, while many, upon initial glance, said it will neither deter high medical malpractice judgments nor foster an atmosphere to make malpractice insurance affordable or even available.

Many say the exodus of quality doctors that began when the crisis came to light in December with the pullout of the state's largest medical malpractice insurance provider will continue, while others say they will stick it out and see what happens when the Legislature meets in 2003 and revisits the issue.

"If people read the headlines that tort reform has passed and believe the matter is resolved, then there are real problems because it is not," said Dr. Terry Lewis, a trauma surgeon at the University Medical Center trauma unit.

"Personally, I feel there was enough done for me to stick around to see if what this bill has started will lead to the problem being fixed. It has to be addressed again at the next session."

A UMC official would not comment on whether the trauma center, which was closed for a short period this summer when not enough doctors would staff the facility, will remain open.

UMC spokesman Rick Plummer said it was business as usual Thursday, noting doctor work schedules are full. However, he said, it is up to the private physicians who staff the center to decide whether it will keep operating.

Some doctors are singing the praises of the bill.

"This is a great step for the medical community and the future of medical care in Nevada," said Dr. John Thalgott, an orthopedic spine specialist and Las Vegas resident of 42 years. "It was a Herculean effort."

Dr. Robert McBeeth, chairman of the Nevada Medical Liability Physicians Task Force, said doctors went to "obtain meaningful reform."

"We have not only accomplished -- but also in some cases exceeded -- our goals," he said.

However, a number of doctors felt going into the special session that a $250,000 cap similar to what California has had for 25 years was their compromise. Many said the $350,000 cap was a compromise to the compromise.

Dr. Anthony Serfustini, a local orthopedic surgeon, said lawmakers did not create a cap, but rather opened a floodgate to potentially large settlements.

"Because of the special circumstances, insurance companies might opt to settle a case for $500,000, instead of risk losing a $1 million judgement," he said. "But if there was a $350,000 cap, that same case would go to court.

"Was this meaningful tort reform? No. I see already skyrocketing insurance rates going up and a slow, silent exodus of doctors. I don't see doctors going on strike, but rather more hospital diverts (of emergency room patients to UMC) because there won't be the necessary specialists on staff."

A provision passed by the Legislature as part of the medical malpractice reform allows sanctions to be levied against attorneys who are found to have filed frivolous lawsuits.

Timothy Williams, president of the Nevada Trial Lawyers Association, said the exceptions to the $350,000 cap were essential to assure public protection. He called it "compassion for the seriously injured."

Las Vegas attorney Kim Mandelbaum, Dr. Allen's wife, said the loopholes in the new legislation are "too big" and create too many potential scenarios that put doctors preparing for malpractice cases against the ropes.

"As a lawyer you want certainty for your clients -- the ability to look at the worst case scenario and explain the options to them," she said. "I suspect that this will not make insurers confident to the level to write malpractice coverage in our state."

Dr. Dan McBride, an orthopedic surgeon and chairman of the Nevada Mutual Insurance Co., which recently was started by doctors, disagrees on both the loophole and insurance issues.

"Naturally, we would have liked a flat cap, but I believe judges will use discretion because they have been given guidance by the Legislature for a $350,000 cap and will be given malpractice trial training," he said. "We feel we can write policies under this law."

Dr. John Martin, an obstetrics/gynecologist who graduated from Valley High, the University of Nevada, Las Vegas and the University of Nevada, Reno's School of Medicine, says he wants to stay in Nevada.

"I cannot afford to pay a $107,000 premium next year that is $50,000 more than what I'm now paying," he said. "And I've never had a judgment against me. I'm worried. I can't wait for this thing to be fixed in two years. By then I will be gone and so will others."

Dr. Joe Candela, a urologist who provided services for the UMC Trauma Center, quit during the height of the controversy and has since returned, agrees that "the proof will be in whether the insurers return to Nevada and provide reasonable rates for coverage."

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