Wednesday, July 28, 2004
Copyright © Las Vegas Review-Journal

Voters support conflicting sides of ballot issues

Initiatives lift limits, limit attorneys' fees

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If opinions don't shift between now and November, Nevada voters may very well support separate ballot measures that both limit attorneys fees and prohibit limits on attorneys fees.

And they may support competing measures that would limit pain and suffering awards in medical malpractice cases and possibly do away with such limits.

A poll commissioned by the Las Vegas Review-Journal and reviewjournal.com shows support for two measures backed by trial lawyers that would ban caps on attorneys fees and, critics say, dismantle medical malpractice reform.

But voters also support a ballot measure backed by doctors that would impose caps on attorneys fees and toughen medical malpractice reforms.

All three measures have popular-sounding names. The medical reform measure pushed by doctors is called Keep Our Doctors in Nevada. The two trial lawyer measures are called the Insurance Rate Reform and Reduction Act and the Stop Frivolous Lawsuits and Protect Your Legal Rights Act.

"The shorthand title is, as much as anything, what gets voted on," said Scott Craigie, a consultant to the Nevada State Medical Association, which supports the Keep Our Doctors in Nevada proposal. "The trial lawyers wrote theirs to be attractive to voters without regard to content."

Assembly Majority Leader Barbara Buckley, D-Las Vegas, agreed that the names are what often win voter support.

"People are being presented with initiative petitions that have popular sounding names," she said. "If people are busy and don't have time to research the measures, then they tend to support them based on the name."

Buckley said the Legislature, when it enacted a compromise medical malpractice reform measure in a 2002 special session, spent hours hearing testimony on all the nuances of such legislation and considered the effects on both victims of malpractice and the skyrocketing insurance rates paid by doctors.

"I say to all the parties, let the legislation work," she said. "The doctors have brought their petition, and now the trial lawyers have brought theirs. It's an initiative war. I would rather see people let the legislation we enacted try to work."

The poll shows that the Keep Our Doctors in Nevada ballot question pushed by the medical and insurance communities is supported by 51 percent of likely voters. Twenty-seven percent are opposed and 22 percent are undecided.

The measure would eliminate all exceptions to a $350,000 cap on non-economic damages in medical malpractice cases. It also would limit attorney fees. If approved by voters this fall, it would amend existing state law and take effect right away.

The poll, conducted by the Washington, D.C.-based Mason-Dixon Polling & Research Inc., shows two competing measures pushed by the Nevada Trial Lawyers Association also have fairly strong support. The poll of 625 voters was conducted from July 20-22. The margin of error is plus or minus 4 percentage points.

One measure, which proposes to roll back auto insurance rates by 20 percent, is supported by 49 percent of those polled. Twenty-four percent are opposed and 27 percent are undecided.

Called the Insurance Rate Reform and Reduction Act, critics say the real intent of the measure is buried in the language and would repeal medical malpractice reforms in Nevada.

The other measure, called Stop Frivolous Lawsuits and Protect Your Legal Rights, is supported by 45 percent of those polled, with 35 percent opposed and 20 percent undecided. Again, critics say, the real intent of the measure is to ban limits on attorneys fees.

Those two measures would amend the state constitution and would have to be approved by voters in November and again in 2006 before they could take effect. They would supersede the doctors' proposal if they win.

Gail Tuzzolo, a spokeswoman for the trial lawyer measures, questioned the wording of the polling questions, suggesting they were incomplete or misleading.

"The questions were an unfair representation of what the measures do," she said. "I think Nevadans are ready for insurance rate reform, and I think they will vote for it."

Tuzzolo said caps on non-economic damages would not automatically be eliminated if the insurance measure passes.

Tuzzolo said voters should consider carefully whether to support the doctors' initiative, because it takes away so many legal rights. The legislature's action put caps on non-economic damages, but created some exemptions, for example gross negligence, she said.

Craigie said he believes the doctors' measure will win and the trial lawyer questions will lose.

"All it will take by people is a closer reading of ballot language and what it means," he said.

Sen. Sandra Tiffany, R-Henderson, said the initiatives put forward by trial lawyers "are very clever. ... They are very talented, bright people, but what they've put on the ballot is disingenuous to the voters."

Assemblyman Joe Hardy, R-Boulder City, who also is a physician, said he believes the insurance rollback provisions in the one trial lawyer measure probably are unconstitutional, because they dictate to private businesses what they must charge.

Larry Matheis, executive director of the Nevada State Medical Association, said if all three measures pass -- as it appears they might -- "it would render moot" the effect of the cap on non-economic damages.

"Insurance companies would take it as a sign that things are not going to get better," he said. "And there would be a continued exodus of insurers. Doctors would also lose heart and begin to leave the state in greater numbers and fewer doctors would set up practice to Nevada."

Though all three measures are seeing support from voters, Mason-Dixon pollster Brad Coker said supporters of the trial lawyer measures shouldn't declare victory just yet.

"I would point out those two questions have a plurality of support, not a majority," he said. "Anytime an idea does not get 50 percent out of the gate, there is a general thought that you can only go down from there."

Undecided voters in such polls frequently end up voting no, Coker said.

But the fact that all three measures do have some level of support is not surprising either, he said.

"Voters are not insiders," Coker said. "They don't understand the nuances of the doctors versus the insurance companies versus the trial lawyers. All they care about is how much their health insurance costs, how good their coverage is and how long they have to wait to see a doctor."