Tuesday, June 08, 2004
Copyright © Las Vegas Review-Journal

Duplicity alleged of ballot measures

Doctors fear medical malpractice reforms targeted

CARSON CITY -- An initiative petition that calls for rolling back auto insurance rates is actually intended to overturn medical malpractice reforms, backers of a competing ballot measure said Monday.

"It is a stealth attack on medical liability reform," said Scott Craigie, a consultant to the doctor-led group Keep Our Doctors in Nevada, whose medical malpractice measure already has qualified for the November ballot.

Larry Matheis, executive director of the Nevada State Medical Association, said the purported auto insurance rollback "is sort of flying under false colors."

"The only observable beneficiaries are personal injury lawyers," he said.

The auto insurance rollback petition and an accompanying measure were filed with the secretary of state on April 16 by Las Vegas resident Carmen Cashman and a group called People for a Better Nevada. The accompanying measure, called the Stop Frivolous Lawsuits and Protect Your Legal Rights Act, would prohibit limitations on attorneys fees. Both measures would amend the state constitution. Cashman could not be reached Monday for comment.

But Las Vegas attorney Gerald Gillock, who often speaks for the Nevada Trial Lawyers Association on medical malpractice insurance issues, disputed the interpretation by Craigie and Matheis.

"They are just wrong," he said "As far as I know, there is no indication that this is anything more than a sincere effort to get an across-the-board insurance rollback and make insurance companies accountable, at least in the state of Nevada."

He acknowledged, though, that under the petition's provisions, existing caps on noneconomic damages in medical malpractice cases could be eliminated. They would be eliminated if proof of reductions in the malpractice insurance rates paid by doctors, along with proof of reductions in medical malpractice payouts, could not be shown.

"If the insurance companies are lying, then the caps would go away," said Gillock, who added that he did not know who was backing the petition drive.

Craigie said the standard required to keep the caps would be tough to meet. According to the initiative petition, the only way any cap on damages could remain in effect would be if the state insurance commissioner found that medical malpractice judgments and malpractice liability rates charged to doctors and other medical providers had dropped by at least 10 percent annually since the caps were enacted.

The insurance commissioner would have until Feb. 1, 2007, to make such a finding, just three months after the two constitutional amendments could be given final approval by voters in November 2006.

Craigie said that if Cashman's two petitions qualify for the ballot, there would be uncertainty as to the future of medical malpractice reform in Nevada, making such a standard all but impossible to meet.

"Uncertainty drives rates up," he said.

Craigie said the 20 percent rollback in auto insurance rates is in the initiative petition to gain enough public support to qualify the measure for the ballot. Such rollbacks have been found unconstitutional in the past and will likely be found so again, he said.

Gillock disputed the contention, noting a California rollback in the mid-1980s was upheld by the courts.

A Nevada rollback approved by the Legislature in 1989 was found unconstitutional, however, by a federal appeals court.

Craigie said the petition also contains language requiring constitutional sections to be upheld even if other sections are found unconstitutional. So finding the auto rollback unconstitutional would not nullify the sections overturning medical malpractice reforms.

And because the auto insurance proposal is a constitutional amendment, it would take precedence over the November ballot measure being pushed by doctors to implement tougher medical malpractice reforms than those adopted by the Legislature in 2002, Craigie said.

In an interview the day the petitions were filed, Cashman said she had no funding to gather signatures for the two petitions and that she was working out of her home.

But Southwest Group, a professional signature-gathering group, is collecting signatures for both petitions, said its president, Billy Rogers. Rogers, in an interview last month, said he expects to be successful in qualifying the measures for the ballot.

Craigie said the doctor interpretation of the auto rollback petition is being disseminated to rural county residents so they know the potential ramifications if they sign. To qualify for the November ballot, about 52,000 signatures would need to be collected statewide, with signatures numbering 10 percent of the votes cast in 1992 elections in 13 of 17 counties.

The Legislature in 2002 approved a $350,000 cap on noneconomic damages in medical malpractice cases but included some exceptions to the limit.

Doctors qualified their proposal for the November ballot because they did not believe the Legislature went far enough.

The doctors' measure if approved by voters would remove all exemptions to the $350,000 cap. It would also limit attorneys fees.

If approved by voters, it would supercede the 2002 reform efforts imposed by the Legislature in the wake of doctors leaving the state citing skyrocketing malpractice rates.

But the two petitions filed by Cashman, because they would amend the state constitution, would supercede either medical malpractice reform effort.