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Medical Malpractice Crisis More Information Assemblyman Joe Dini, pictured in 1999, was finishing his first term in office when legislators were called back on Feb. 5, 1968, for a wide-ranging special session. Dini, D-Yerington, is retiring at the end of the year after 36 years in the Assembly. REVIEW-JOURNAL FILE PHOTO

Sunday, July 28, 2002
Copyright © Las Vegas Review-Journal

THE MEDICAL MALPRACTICE INSURANCE CRISIS: History suggests legislators must strike balance

Special sessions previously have resulted in ousters

CARSON CITY

When legislators gather here Monday to begin the 18th special legislative session in state history, they should pay attention to the past.

After previous special sessions in which legislators backed laws perceived by the public as favoring one moneyed interest at the expense of others, most lost their seats at the next general election.

"The public can punish and the public generally remembers special sessions, particularly ones just before the general election," state Archivist Guy Rocha said.

Rocha sees a parallel between this week's special session that pits the interests of doctors versus those of trial lawyers and patients with one that occurred in 1928.

The Legislature was called into session that year to find a way to restore the state treasury to solvency following the embezzlement of $516,000 by state Controller George Cole and state Treasurer Edward Malley.

At that 19-day session, legislators bowed to the interests of banker George Wingfield and let him pay only 30 percent of the losses on a surety bond to cover the embezzlement.

The public saw the settlement as too much of a sweetheart deal for Wingfield, then the state's most powerful person. One of the employees at Wingfield's bank even had conspired with the two state officials to carry out the embezzlement.

Nine of the 17 senators and 29 of the 40 Assembly members who participated in the Wingfield session did not return for the regular legislative session in 1929, either losing re-election bids or deciding against running.

Archivist Rocha also mentioned the 18-day 1908 special session in which the Legislature made the publicly unpopular decision of creating a state police force.

Much of the public perceived the state police as a goon squad created to beat up labor agitators in mines. Nevada at the time was a hotbed for the union movement and many residents were proud to be socialists.

Ten of the 17 senators and 35 of the 40 Assembly members who participated in the state police session did not return for the regular legislative session in 1909.

To avoid the historical precedent, Rocha figures legislators must carve out a balanced agreement this week that the public sees as fair for doctors and fair for the aggrieved patients represented by trial lawyers.

Doctors seek a law similar to one in California that caps the amount a patient can be awarded in a medical malpractice lawsuit at $250,000 in pain and suffering damages. The trial lawyers consider that amount too low and argue that setting a cap would punish patients already hurt by the negligence of their doctors.

"It is a balancing act," Rocha said. "If $250,000 is too low, then maybe they can reach common ground at $500,000 or some other figure? There will be political fallout, regardless of what they do. They need to come to a figure when they minimize that fallout."

A survey conducted for the Review-Journal in mid-July found nearly two-thirds of the respondents statewide favored a cap on noneconomic damages.

Only two legislators remain in office from 1968, the last time the Legislature entered a special session without an upfront agreement.

Assemblyman Joe Dini, D-Yerington, was finishing his first term in office when Gov. Paul Laxalt called the legislators back that Feb. 5 to consider dozens of matters, including properly funding the schools and university system.

"In those days it was different," said Dini, who retires at the end of the year after 36 years as an assemblyman. "Leadership had everything under control. This special session is different. It is going to be a real tough fight and not easy to resolve. It could end up very contentious."

Sen. Lawrence Jacobsen, R-Minden, remembers the 1968 special session and an earlier one in 1965 when the lawmakers approved a redistricting plan that required legislative election districts to be equal in population. Before the change, each county had one state senator, regardless if the county had 500 or 100,000 residents.

Like Dini, Jacobsen retires at the end of the year. He has been a legislator for 40 years, longer than any person in Nevada history.

"We need an agreement pretty well spelled out in advance, or else the special session becomes political," Jacobsen said. "We have a crisis for the general public and the patients. Each day that goes by without an agreement turns it more bitter."

Since 1968, legislators have compromised before the special sessions began.

They journeyed to the Capitol for four hours in 1980 to approve an agreement with California limiting growth at Lake Tahoe. They made another trip for two days in 1984 to approve a plan to allow CITICORP to open a credit card processing facility in Las Vegas and give out-of-state banks the right to open branches in Nevada.

Five years later in November 1989 legislators again returned, this time for two hours to repeal a law they passed five months earlier that increased legislative pensions by 300 percent.

Legislators took no pay for the special session and unanimously repealed the pension increase, but their initial approval, over the veto of Gov. Bob Miller, proved their unmaking. Sixteen incumbents were defeated during re-election bids in 1990.

The last special session, June 14-15, 2001, was more anti-climatic.

Legislators approved a redistricting plan and re-passed about 20 bills that had been passed just before the regular session adjourned 10 days earlier. The bills were passed again to make sure they legally had been approved during the time limits of the constitutional amendment that now prohibits regular sessions from lasting more than 120 days every other year.

Lorne Malkiewich, the Legislature's top administrator, said about 250 employees, including 35 temporary hired workers, will be on hand to assist lawmakers at the special session. The session will cost $40,000 a day, on top of $80,000 in startup costs.

Legislators will receive their $130 daily pay and an $85 per day living allowance for the special session. Some may have trouble finding rooms, particularly if the session lasts into the weekend. Reno's annual classic car event Hot August Nights begins Saturday and many rooms have been booked.

Although Gov. Kenny Guinn wants the special session to adjourn in three days, legislators will be paid for as long as 20 days if the session lingers on without resolution.

Dini is not optimistic about a quick resolution.

"If it takes 20 days or 320 days, we have to work it out," he said. "You can't give the general public the shaft. You can't have doctors quitting and leaving the state."

While the medical malpractice problem mainly affects Clark County physicians, Dini maintains it also is a growing rural problem.

Physicians cannot deliver babies in Yerington because of the unwillingness of insurance companies to give them insurance and the lack of modern medical facilities, Dini said. His constituents must travel to Reno or Carson City hospitals to give birth.

That irks Dini, who speaks reverently of rural Nevada and remembers physicians such as the late Mary Fulstone, one of the first female doctors in the state.

"Dr. Mary delivered 5,000 babies without a malpractice problem," he said. "She delivered most of them at people's homes. Why can't doctors deliver babies again without being sued for malpractice? We have to do what is right for the people, no matter how long it takes."