SENATE of the State
EIGHTEENTH SPECIAL SESSION
THE FIRST DAY
Carson City (Monday), July 29, 2002
Senate called to order at 9:30 a.m.
President Hunt presiding.
President Hunt requested that her remarks be entered in the Journal.
We gather today for this Special Session because an issue of public health has become so critical ―that it’s impact on the people of Nevada can be devastating. It is an issue―where there is no consensus―and where there is only heated, and at times, contentious debate.
It is an issue―that has reached a point/where a wide impasse exists causing this body to be brought together.
It goes without saying that settling the issue―without a Special Session would have been preferable to us, to the people of Nevada and certainly to our Governor Kenny Guinn.
But there is a time when leadership must rise to the occasion and take over and that is exactly what Governor Guinn did. And that is exactly what he, and all Nevadans, is looking for us to do.
This is what we were elected to do. The voters didn’t send us to the state legislature/to make the easy decisions.
We are the ones to whom they are looking for solution.
To whom they are looking for resolution.
To whom they are looking/to protect them and their families.
We are it folks.
Let’s put politics aside and do the right thing for the people of Nevada.
Prayer by the Chaplain, Pastor Bruce Henderson.
Lord, here we are again. Although it’s nice to be with friends and colleagues, we’re not supposed to be here yet. But, a lot of things have happened since last we met-hard, gut-wrenching terror and knock your socks off economics. Please bless our nation and our state during these times, oh Lord.
So although by the calendar we’re not supposed to be here yet, we realize that our timing is not the same as Yours. Be with us during this crucial time for which we meet, and please give us nothing less than Your wisdom which we so need right now. In Your holy and righteous Name.
Pledge of allegiance to the Flag.
MOTIONS, RESOLUTIONS AND NOTICES
Madam President requested Mrs. Claire J. Clift to serve as temporary Secretary of the Senate and Mr. Charles P. Welsh to serve as temporary Sergeant at Arms.
Madam President instructed the temporary Secretary to call the roll of the holdover Senators.
All holdover Senators present.
Madam President appointed Senators O'Connell, Rhoads and Shaffer as a temporary Committee on Credentials to examine the credentials of the newly-appointed Senators.
Madam President announced that if there were no objections the Senate would recess subject to the call of the Chair while credentials of the newly-appointed Senators were examined by the temporary Committee on Credentials.
Senate in recess at 9:34 a.m.
SENATE IN SESSION
At 9:35 a.m.
President Hunt presiding.
REPORTS OF COMMITTEES
Your temporary Committee on Credentials, has had the credentials of the respective Senator-appointees under consideration and begs leave to report that the following persons have been and are duly appointed and are qualified members of the Senate of the Eighteenth Special Session of the Legislature of the State of Nevada; Christine A. Milburn and Jesse C. Paulk. Ann O'Connell Dean A. Rhoads Raymond C. Shaffer
MOTIONS, RESOLUTIONS AND NOTICES
Senator O'Connellmoved that the report of the temporary Committee on Credentials be adopted.
Madam President appointed Senators Townsend, O’Donnell and Care to escort Chief Justice William A. Maupin of the Supreme Court of Nevada to the rostrum to administer the oath of office to the newly-appointed Senators.
Madam President announced that if there were no objections the Senate would recess subject to the call of the Chair.
Senate in recess at 9:36 a.m.
SENATE IN SESSION
At 9:37 a.m.
President Hunt presiding.
Chief Justice Maupin administered the oath of office to the newly-appointed Senators.
Madam President announced that if there were no objections the Senate would recess subject to the call of the Chair.
Senate in recess at 9:40 a.m.
SENATE IN SESSION
At 9:46 a.m.
President Hunt presiding.
Senator Wiener moved that the Chief Justice be extended a unanimous vote of thanks for administering the oath of office.
Motion carried unanimously.
Madam President instructed the temporary Secretary to call the roll of the Senators.
All Senators present.
Senator Raggio moved that the organization of the Senate of the Seventy-first Session of the Nevada Legislature be designated as the organization of the Eighteenth Special Session of the Nevada Legislature.
Senator Raggio moved that the Secretary of the Senate be instructed to insert the Eighteenth Special Session organization in the Journal of the Senate, as outlined in the handout located on each Senator’s desk.
PRESIDENT PRO TEMPORE OF THE SENATE―
Senator Lawrence E. Jacobsen
MAJORITY FLOOR LEADER―
Senator William J. Raggio
ASSISTANT MAJORITY FLOOR LEADER―
Senator Raymond D. Rawson
Senator Maurice E. Washington
ASSISTANT MAJORITY WHIP―
Senator Mark E. Amodei
MINORITY FLOOR LEADER―
Senator Dina Titus
ASSISTANT MINORITY FLOOR LEADER―
Senator Bernice Mathews
Senator Valerie Wiener
SECRETARY OF THE SENATE―
Claire J. Clift
Madam President appointed Senators Rawson, Amodei and Mathews as a committee of three to inform the Assembly that the Senate is organized and ready for business.
Madam President appointed Senators Washington, McGinness and Wiener as a committee of three to inform the Governor that the Senate is organized and ready for business.
A committee from the Assembly composed of Assemblymen Williams, Leslie and Beers appeared before the bar of the Senate and announced that the Assembly was organized and ready for business.
Senator Raggio moved that the following persons be accepted as accredited press representatives, and that they be assigned space at the press table and allowed the use of the appropriate media facilities: ASSOCIATED PRESS, Joe Cavaretta, Brendon Riley; BOULDER CITY NEWS, Chuck Baker; CARSON CITY NEWS, David Morgan; CITADEL COMMUNICATIONS, Adriana Diaz, David Marz; COMSTOCK CHRONICLE/CABLE NEWS SERVICE, Travis T. Hipp; COVER EDGE, Michele Kane, Kevin Ross; COX COMMUNICATIONS, Steve Schorr; DONREY CAPITAL BUREAU, Ed Vogel, Sean Whaley; ELECTRIC NEVADA & ELECTRIC AMERICA, Daniel Joseph, Tiffany Van der Stokker; FERNLEY LEADER/COURIER, Betty Aleck, Laura Tennant; FOX 5, Michael Baldwin, Don Lyle; GAMING TODAY, Chuck DiRocco; HIGH DESERT ADVOCATE, Howard Copelan; HIGHWAY RADIO, Kirk Anderson; KKOH, Kelly McAllister; KLAS-TV, Rich Czerny, George Knapp, Cory Royer, Eric Sorenson, Jon Summers; KNPB-TV/KLVX-TV, Mitch Fox, Mike Garafolo, Jack Kelly, John Kirk, Bonnie Maclean, Rosemary McCarthy, Ethan Salter, Michelle Stander; KNPR RADIO, Florence Rodgers; KOLO TV, Jodee Kenney, Karl Baker, Bruce Bolf, Brent Boynton, Jean Casarez, Beryl Chong, Jenee Conway, Mark Cronon, Beth Ford, Timothy Ill, Jeff Jones, Justin Kanno, Darrell McComb, Edward Pearce, Terri Russell, Erin Scheuerman, Henry Wofford; KRJC/KTSN RADIO, Stacey Sawyer; KRNV TV, Hayley Herst, Wade Barnett, Ben Barnholdt, Kausic Bhakta, Victoria Campbell, Jeneene Chatowsky, Tina Cox, Karen Cuninghame, Jeff Deitch, Bill Frankmore, Matt Guccini, Joe Hart, Sarah Johns, Michael Johnson, Malayna Kerton, John Killoran, Renee Phillips, Aaron Rothkopf, Eduardo Rubio, Mark Sayre, Shelby Sheehan, Julie Simon, Mike Taylor, James Walker, Richard Worsley, Debbie Worthen, Jana Wyld, John Zuchelli; KRXI/KAME TV, Steve Halliwell; KTVN TV, Scott Birmingham, Brian Shaw, Josh Brackett, Kerrie Cassani, Sherrie Cerutti, Angeline Chew, John Chrystal, Wendy Damonte, Chad Gasper, Jessie Harris, Kirsten Joyce, Gina Martini, John Mercer, Jose Pilarim, Tony Shin, Christina White, Randy Brown, Greg Grehz, Steve Kiggins, Joyce Kirsten, Kurtis Ming, Paul Nelson, Marty Ozer, Laura Sambol, Brian Hickey; KUBC, Beth Fisher, Ken Johnson; KUUV; Garrett Breit, Ann Rubin; LAS VEGAS REVIEW-JOURNAL, Amy Bennett, Kevin Cannon, John Edwards, John Gurzinski, Don Ham, Mary Hynes, Jim Laurie, Thomas Mitchell, Jan Moller, Craig Moran, Jane Ann Morrison, Jeff Scheid, Steve Sebelius, John Smith, Gary Thompson, Charles Zobell, LAS VEGAS SUN, Jeff German, Aaron Mayes, Erin Neff, Jace Radke, Cy Ryan, Susan Snyder; LINCOLN COUNTY RECORD, Shelly Hartman, Connie Simkins; LOTUS BROADCASTING, Andrew Kolb; LOVELOCK REVIEW-MINER/NEVADA RANCHER, Gwen Carter; MASON VALLEY NEWS, Robert Perea, David Sanford, Keith Trout; NEVADA APPEAL, Geoff Dornan, Bob Thomas; RENO GAZETTE-JOURNAL, Tim Anderson, Andy Barron, Jennifer Crowe, Tonia Cunning, Jeff Delong, Jeff Donaldson, Tim Dunn, Cory Farley, Ray Hagar, Janice Hoke, Sevil Hunter, Mark Lundahl, Elizabeth Margerum, Frank Mullen, Marilyn Newton, Bill O’Driscoll, David Parker, Scott Sady, John Smetana, Steve Smith, Steve Timko, Lisa Tolda, Candice Towell, Susan Voyles; RENO NEWS & REVIEW, Jimmy Boegle, Brian Burghart, Carli Cutchin, Kelley Lang, Deidre Pike, William Puchert, Adrienne Rice; SENIOR SPECTRUM NEWSPAPERS, Chris McMullen, Connie McMullen; SIERRA NEVADA COMMUNITY ACCESS TV, John Ponzo, Earl Spriggs, Don Alexander, Chris Jensen; SPARKS TRIBUNE, Andrew Barbano; TASPAC NEWS, Donna Andres, Peter Hutchinson; THE HUMBOLDT SUN, Dave Woodson; VIRGINIA CITY REGISTER, Terry Daisy, Gary Gehrm, Thomas Hunter, Bill Meakin, Bill Sjovangen, Douglas Truhill; WE THE PEOPLE, Shayne Del Cohen; VARTEK, Michael Vargas.
Madam President announced that if there were no objections, the Senate would recess subject to the call of the Chair.
Senate in recess at 9:53 a.m.
SENATE IN SESSION
At 10:49 a.m.
President Hunt presiding.
Senator Rawson reported that his committee had informed the Assembly that the Senate is organized and ready for business.
Senator Washington reported that his committee had informed the Governor that the Senate is organized and ready for business.
Messages From The Governor
State of Nevada
Office of the Governor
A PROCLAMATION BY THE GOVERNOR:
WHEREAS, Section 9 of Article V of the Constitution of the State of Nevada provides that, “The Governor may on extraordinary occasions, convene the Legislature by Proclamation and shall state to both houses when organized, the purpose for which they have been convened, and the Legislature shall transact no legislative business, except that for which they were specially convened, or such other legislative business as the Governor may call to the attention of the Legislature while in Session;”
WHEREAS, believing that an extraordinary occasion now exists which requires immediate action by the Legislature;
NOW, THEREFORE, I, KENNY C. GUINN, GOVERNOR OF THE STATE OF NEVADA, by virtue of the authority vested in me by the Constitution of the State of Nevada, do hereby convene the Legislature into a Special Session to begin at 9:00 a.m., on July 29, 2002.
During this Special Session, I ask the Legislature to consider:
1.Establishing limits on the amount of non-economic damages available in medical malpractice cases;
2.Adopting a several liability standard for medical malpractice cases when non-economic damages are considered;
3.Adopting a new joint and several liability standard for medical malpractice cases when economic damages are considered;
4.Limiting the liability for acts occurring in a governmental or non-profit center for the treatment of trauma;
5.Allowing a judge, at the request of either party, discretion to enter a judgment providing that money for future damages be paid periodically;
6.Shortening the time period within which a medical malpractice case may be filed;
7.Reviewing the medical and dental screening panels to revise existing procedures and/or change the composition of the panels;
8.Providing discretion in the award of pre-judgment interest;
9.Strengthening the reporting requirements regarding disciplinary actions, claims, settlements and/or awards against physicians;
10. Requiring that district court judges have training in medical malpractice litigation before handling such cases;
11. Making it mandatory for attorneys to personally pay for the additional costs, expenses and fees that arise as a result of their unreasonable conduct in civil litigation.
During the Special Session, the Legislature may also consider other matters brought to its attention by the Governor.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the Great Seal of the State of Nevada to be affixed in Las Vegas, this 26th day of July, in the year two thousand two
Kenny C. Guinn
remarks from the floor
Senator Raggio requested that his remarks be entered in the Journal.
Pursuant to his constitutional authority, Governor Kenny C. Guinn has convened a special session of the legislature to address an issue of extraordinary importance to all Nevadans. There is a crisis in the availability and affordability of medical liability insurance that threatens to impact access to health care. It is essential that Nevada retain its medical providers, especially for those citizens who suffer traumatic injuries where literally every second counts.
The Senate will be considering a package of proposals to ensure continued access to medical care while protecting the interests of patients injured in the course of receiving treatment. However, pursuant to article 5, section 9 of the Constitution of Nevada: “…the legislature shall transact no legislative business, except that for which they were specially convened, or such other legislative business as the governor may call to the attention of the legislature while in session.”
We have before us the Governor’s proclamation detailing the issues we have been convened to address and we are constitutionally bound to restrict our transactions to those items.
Because the subject of medical malpractice has numerous aspects and special sessions are of necessity limited in duration, we need to proceed expeditiously. To facilitate this process, we will meet as a Committee of the Whole.
We anticipate morning, afternoon and evening meetings for the next three days. This approach will require careful management of the time allotted for each phase of our process. We will attempt to provide a reasonable opportunity for all positions to be heard but it will be necessary to observe time limits so this body can conclude its work in a reasonable period. The Senate will therefore pursue its deliberations in the following manner:
We will focus on one specific topic at a time;
Within a fixed amount of time, representatives of interested groups will be accorded equal time to address each topic without interruption;
At the conclusion of these presentations, the majority party and the minority party will have equal time allotted to their members to pose questions or to make statements. We will observe time limits in this phase of our proceedings as well;
Because of the constitutional limits on subject matter, any discussions beyond the topics in the Governor’s proclamation will not be in order;
After legislators have finished their questions or statements, there will be an opportunity for public comment on the item under discussion;
Following public comment, the Senate will vote on that specific agenda item. In this manner, we will not only help move discussions along, we will also allow our bill drafters to keep pace with us and avoid prolonged delay at the end of our deliberations while we wait for a final version;
Thereafter, the process will be repeated for each agenda item until we have considered the proposal before us in its entirety.
Finally, at the end of each day, the Committee of the Whole will rise and return to the Senate Chamber to adjourn for the day.
We are faced with a critical task and an arduous schedule. However, I am confident our combined efforts can produce a sound public policy solution to the present crisis.
MOTIONS, RESOLUTIONS AND NOTICES
By Senator Raggio:
Senate Resolution No. 1—Adopting the Rules of the Senate for the 18th Special Session of the Legislature.
Resolved by the Senate of the State of Nevada, That the following Rules of the Senate for the 18th Special Session of the Legislature are hereby adopted:
Rule No. 1. Generally.
The Rules of the Senate for the 18th Special Session of the Legislature are applicable only during the 18th Special Session of the Legislature.
II. OFFICERS AND EMPLOYEES
Duties of Officers
Rule No. 2. President.
The President shall take the chair and call the Senate to order precisely at the hour appointed for meeting. He shall preserve order and decorum, and in case of any disturbance or disorderly conduct within the Senate Chamber, shall order the Sergeant at Arms to suppress it, and may order the arrest of any person creating any disturbance within the Senate Chamber. He may speak to points of order in preference to members, rising from his seat for that purpose, and shall decide questions of order without debate, subject to an appeal to the Senate by two members, on which appeal no member may speak more than once without leave of the Senate. He shall sign all acts, addresses and joint resolutions, and all writs, warrants and subpoenas issued by order of the Senate; all of which must be attested by the Secretary. He has general direction of the Senate Chamber.
Rule No. 3. President pro Tem.
The President pro Tem has all the power and shall discharge all the duties of the President during his absence or inability to discharge the duties of his office. In the absence or inability of the President pro Tem to discharge the duties of the President’s office, the Senate shall elect one of its members as the presiding officer for that occasion.
Rule No. 4. Secretary.
1. The Secretary of the Senate is elected by the Senate, and shall:
(a) Interview and recommend persons to be considered for employment to assist the Secretary.
(b) See that these employees perform their respective duties.
(c) Administer the daily business of the Senate, including the provision of secretaries as needed.
(d) Unless otherwise ordered by the Senate, transmit as soon as practicable those bills and resolutions upon which the next action is to be taken by the Assembly.
2. The Secretary is responsible to the Majority Leader.
Rule No. 5. Sergeant at Arms.
1. The Sergeant at Arms shall attend the Senate during its sittings, and execute its commands and all process issued by its authority. He must be sworn to keep the secrets of the Senate.
2. The Sergeant at Arms shall:
(a) Superintend the upkeep of the Senate’s Chamber, private lounge, and meeting rooms.
(b) Interview and recommend persons to be considered for employment to assist the Sergeant at Arms.
3. The Sergeant at Arms is responsible to the Majority Leader.
Rule No. 6. Assistant Sergeant at Arms.
The Assistant Sergeant at Arms shall be doorkeeper and shall preserve order in the Senate Chamber and shall assist the Sergeant at Arms. He shall be sworn to keep the secrets of the Senate.
III. SESSIONS AND MEETINGS
Rule No. 7. Call of Senate—Moved by Three Members.
A Call of the Senate may be moved by three Senators, and if carried by a majority of all present, the Secretary shall call the roll and note the absentees, after which the names of the absentees shall again be called over. The doors shall then be closed and the Sergeant at Arms directed to take into custody all who may be absent without leave, and all Senators so taken into custody shall be presented at the bar of the Senate for such action as to the Senate may seem proper.
Rule No. 8. Absence—Leave Required.
No Senator shall absent himself from the service of the Senate without leave, except in case of accident or sickness, and if any Senator or officer shall so absent himself his per diem shall not be allowed him.
Rule No. 9. Open Meetings.
1. Except as otherwise provided in the Constitution of the State of Nevada and in subsection 2 of this rule, all meetings of the Senate and the Committee of the Whole must be open to the public.
2. A meeting may be closed to consider the character, alleged misconduct, professional competence, or physical or mental health of a person.
IV. DECORUM AND DEBATE
Rule No. 10. Points of Order.
1. If any Senator, in speaking or otherwise, transgresses the rules of the Senate, the President shall, or any Senator may, call him to order. If a Senator is so called to order, he shall not proceed without leave of the Senate. If such leave is granted, it must be upon the motion, “That he be allowed to proceed in order,” and the Senator shall confine himself to the question under consideration and avoid personality.
2. Every decision of points of order made by the President is subject to appeal, and a discussion of a question of order may be allowed only upon the appeal of two Senators. In all cases of appeal, the question must be, “Shall the decision of the Chair stand as the judgment of the Senate?”
Rule No. 11. Breaches of Decorum.
1. In cases of breaches of decorum or propriety, any Senator, officer or other person is liable to such censure or punishment as the Senate may deem proper.
2. If any Senator is called to order for offensive or indecorous language or conduct, the person calling him to order shall report the offensive or indecorous language or conduct to the presiding officer. No member may be held to answer for any language used on the floor of the Senate if business has intervened before exception to the language was taken.
3. Indecorous conduct or boisterous or unbecoming language is not permitted in the Senate Chamber.
V. QUORUM, VOTING, ELECTIONS
Rule No. 12. Action Required to be Taken in Senate Chamber.
Any action taken by the Senate must be taken in the Senate Chamber.
Rule No. 13. Recorded Vote—Three Required to Call For.
1. A recorded vote must be taken upon final passage of a bill or joint resolution, and in any other case when called for by three members. Every Senator within the bar of the Senate shall vote “aye” or “no” or record himself as “not voting,” unless excused by unanimous vote of the Senate.
2. The votes and names of those absent or recorded as “not voting” and the names of Senators demanding the recorded vote must be entered in the Journal.
Rule No. 14. President to Decide—Tie Vote.
A question is lost by a tie vote, but when the Senate is equally divided on any question except the passage of a bill or joint resolution, the President may give the deciding vote.
Rule No. 15. Manner of Election—Voting.
1. In all cases of election by the Senate, the vote must be taken viva voce. In other cases, if a vote is to be recorded, it may be taken by oral roll-call or by electronic recording.
2. When a recorded vote is taken, no Senator may:
(a) Vote except when at his seat;
(b) Vote upon any question in which he is in any way personally or directly interested;
(c) Explain his vote or discuss the question while the voting is in progress; or
(d) Change his vote after the result is announced.
3. The announcement of the result of any vote must not be postponed.
VI. LEGISLATIVE BODIES
Rule No. 16. Committee of the Whole.
1. All bills and resolutions may be referred only to the Committee of the Whole.
2. The Majority Leader shall preside as chairman of the committee or name a chairman to preside.
3. Any meeting of the Committee of the Whole may be conducted outside the Senate Chamber, as designated by the chairman of the committee.
4. A member of the committee may speak only once on an item listed on the committee’s agenda, for a period of not more than 10 minutes, unless he is granted leave of the chairman to speak for a longer period or more than once. If a member is granted leave to speak for a longer period or more than once, the chairman may limit the length of additional time that the member may speak.
5. The chairman may require any vote of the committee to be recorded in the manner designated by the chairman.
6. All amendments proposed by the committee:
(a) Must first be approved by the committee.
(b) Must be reported by the chairman to the Senate.
7. The minutes of the committee’s meetings must be entered in the final Journal.
Rule No. 17. Rules Applicable to Committee of the Whole.
The Rules of the Senate shall apply to proceedings in Committee of the Whole, except that the previous question shall not be ordered. The rules of parliamentary practice contained in Mason’s Manual of Legislative Procedure shall govern the committee in all cases in which they are applicable and in which they are not inconsistent with the rules and orders of the Senate.
Rule No. 18. Motion to Rise Committee of the Whole.
A motion that the committee rise shall always be in order, and shall be decided without debate.
VII. RULES GOVERNING MOTIONS
A. Motions Generally
Rule No. 19. Entertaining.
1. No motion may be debated until it is announced by the President.
2. By consent of the Senate, a motion may be withdrawn before amendment or decision.
Rule No. 20. Precedence of Motions.
When a question is under debate, no motion shall be received but the following, which shall have precedence in the order named:
1. To adjourn.
2. For a call of the Senate.
3. To lay on the table.
4. For the previous question.
5. To postpone to a day certain.
6. To commit.
7. To amend.
8. To postpone indefinitely.
The first four shall be decided without debate.
Rule No. 21. When Not Entertained.
1. When a motion to commit, to postpone to a day certain, or to postpone indefinitely has been decided, it must not be again entertained on the same day.
2. When a question has been postponed indefinitely, it must not again be introduced during the special session.
3. There must be no reconsideration of a vote on a motion to postpone indefinitely.
B. Particular Motions
Rule No. 22. To Adjourn.
A motion to adjourn shall always be in order. The name of the Senator moving to adjourn, and the time when the motion was made, shall be entered in the Journal.
Rule No. 23. Lay on the Table.
A motion to lay on or take from the table shall be carried by a majority vote.
Rule No. 24. To Strike Enacting Clause.
A motion to strike out the enacting clause of a bill or resolution has precedence over a motion to commit or amend. If a motion to strike out the enacting clause of a bill or resolution is carried, the bill or resolution is rejected.
Rule No. 25. Division of Question.
1. Any Senator may call for a division of a question.
2. A question must be divided if it embraces subjects so distinct that if one subject is taken away, a substantive proposition remains for the decision of the Senate.
3. A motion to strike out and insert must not be divided.
Rule No. 26. Explanation of Motion.
Whenever a Senator moves to change the usual disposition of a bill or resolution, he shall describe the subject of the bill or resolution and state the reasons for his requesting the change in the processing of the bill or resolution.
Rule No. 27. Speaking on Question.
1. Every Senator who speaks shall, standing in his place, address “Mr. or Madam President,” in a courteous manner, and shall confine himself to the question before the Senate. When he has finished, he shall sit down.
2. Except as otherwise provided in Senate Rules Nos. 10 and 45 of the 18th Special Session, a Senator may speak only once on a question before the Senate, for a period of not more than 10 minutes, unless he is granted leave of the President to speak for a longer period or more than once. If a Senator is granted leave to speak for a longer period or more than once, the President may limit the length of additional time that the member may speak.
3. Incidental and subsidiary questions arising during debate shall not be considered the same question.
Rule No. 28. Previous Question.
The previous question shall not be put unless demanded by three Senators, and it shall be in this form: “Shall the main question be now put?” When sustained by a majority of Senators present it shall put an end to all debate and bring the Senate to a vote on the question or questions before it, and all incidental questions arising after the motion was made shall be decided without debate. A person who is speaking on a question shall not while he has the floor move to put that question.
IX. CONDUCT OF BUSINESS
Rule No. 29. Mason’s Manual.
The rules of parliamentary practice contained in Mason’s Manual of Legislative Procedure shall govern the Senate in all cases in which they are applicable and in which they are not inconsistent with the rules and orders of the Senate for the 18th Special Session of the Legislature, and the Joint Rules of the Senate and Assembly for the 18th Special Session of the Legislature.
Rule No. 30. Suspension of Rule.
No rule or order of the Senate for the 18th Special Session of the Legislature shall be rescinded or changed without a majority vote of the Senate; but, except as otherwise provided in Senate Rule No. 39 of the 18th Special Session of the Legislature, a rule or order may be temporarily suspended for a special purpose by a majority vote of the members present. When the suspension of a rule is called for, and after due notice from the President no objection is offered, he can announce the rule suspended and the Senate may proceed accordingly; but this shall not apply to that portion of Senate Rule No. 39 of the 18th Special Session of the Legislature relating to the third reading of bills, which cannot be suspended.
Rule No. 31. Protest.
Any Senator, or Senators, may protest against the action of the Senate upon any question, and have such protest entered in the Journal.
Rule No. 32. Privilege of the Floor.
1. To preserve decorum and facilitate the business of the Senate, only the following persons may be present on the floor of the Senate during formal sessions:
(a) State officers;
(b) Officers and members of the Senate;
(c) Employees of the Legislative Counsel Bureau;
(d) Attachés and employees of the Senate; and
(e) Members of the Assembly whose presence is required for the transaction of business.
2. Guests of Senators must be seated in a section of the upper or lower gallery of the Senate Chamber to be specially designated by the Sergeant at Arms. The Majority Leader may specify special occasions when guests may be seated on the floor of the Senate with a Senator.
3. A majority of Senators may authorize the President to have the Senate Chamber cleared of all persons except Senators and officers of the Senate.
4. The Senate Chamber may not be used for any business other than legislative business during a legislative session.
Rule No. 33. Material Placed on Legislators’ Desks.
1. Only the Sergeant at Arms and officers and employees of the Senate may place papers, letters, notes, pamphlets and other written material upon a Senator’s desk. Such material must contain the name of the Legislator requesting the placement of the material on the desk or a designation of the origin of the material.
2. This rule does not apply to books containing the legislative bills and resolutions, the daily histories and daily journals of the Senate or Assembly, or Legislative Counsel Bureau material.
Rule No. 34. Petitions and Memorials.
The contents of any petition or memorial shall be briefly stated by the President or any Senator presenting it. It shall then lie on the table or be referred, as the President or Senate may direct.
Rule No. 35. Objection to Reading of Paper.
Where the reading of any paper is called for, and is objected to by any Senator, it shall be determined by a vote of the Senate, and without debate.
Rule No. 36. Questions Relating to Priority of Business.
All questions relating to the priority of business shall be decided without debate.
Rule No. 37. Requests for the Drafting of Bills, Resolutions and Amendments.
The Legislative Counsel shall not honor a request for the drafting of a bill, resolution or amendment to be introduced in the Senate unless it is submitted by the Committee of the Whole, a Conference Committee or the Governor.
Rule No. 38. Introduction of Bills.
1. Except as otherwise provided in this rule, no bill or resolution may be introduced in the Senate unless it is first approved by the Committee of the Whole.
2. The provisions of subsection 1 do not apply to a bill or resolution that is:
(a) Required to carry out the business of the Senate or the Legislature; or
(b) Requested by the Governor.
3. Skeleton bills may not be introduced.
Rule No. 39. Reading of Bills.
1. Every bill must receive three readings before its passage, unless, in case of emergency, this rule is suspended by a two-thirds vote of the members elected to the Senate.
2. The first reading of a bill is for information, and if there is opposition to the bill, the question must be, “Shall this bill receive no further consideration?” If there is no opposition to the bill, or if the question to reject is defeated, the bill must then take the usual course.
3. No bill may be committed until once read, nor amended until twice read.
4. The third reading of every bill must be by sections.
Rule No. 40. Second Reading File—Consent Calendar.
1. All bills or joint resolutions reported by the Committee of the Whole must be placed on a second reading file unless recommended for placement on the consent calendar.
2. The Committee of the Whole shall not recommend a bill or joint resolution for placement on the consent calendar if:
(a) An amendment of the bill or joint resolution is recommended;
(b) It contains an appropriation;
(c) It requires a two-thirds vote of the Senate; or
(d) It is controversial in nature.
3. A bill or joint resolution must be removed from the consent calendar at the request of any Senator. A bill or joint resolution so removed must be immediately placed on the second reading file for consideration in the usual order of business.
4. When the consent calendar is called, the bills remaining on the consent calendar must be read by number and summary, and the vote must be taken on their final passage as a group.
Rule No. 41. Reading of Bills—General File.
1. Upon reading of bills on the second reading file, Senate and Assembly bills reported without amendments must be placed on the general file.
2. Only amendments proposed by the Committee of the Whole or a Conference Committee may be considered.
3. Amendments proposed by the Committee of the Whole and reported with bills may be adopted by a majority vote of the members present. Bills so amended must be reprinted, engrossed or reengrossed, and placed on the general file. The file must be posted in the Senate Chamber and made available to members of the public each day by the Secretary.
Rule No. 42. Reconsideration of Vote on Bill.
No motion to reconsider a vote is in order.
Rule No. 43. Treated as Bills.
Resolutions addressed to Congress, or to either House thereof, or to the President of the United States, or the heads of any of the national departments, or proposing amendments to the State Constitution are subject, in all respects, to the foregoing rules governing the course of bills. A joint resolution proposing an amendment to the constitution shall be entered in the journal in its entirety.
Rule No. 44. Treated as Motions.
Resolutions, other than those referred to in Senate Rule No. 43 of the 18th Special Session of the Legislature, shall be treated as motions in all proceedings of the Senate.
Rule No. 45. Order of Business.
1. Roll Call.
2. Prayer and Pledge of allegiance to the Flag.
3. Reading and Approval of the Journal.
4. Reports of the Committee of the Whole.
5. Messages from the Governor.
6. Messages from the Assembly.
9. Motions, Resolutions and Notices.
10. Introduction, First Reading and Reference.
11. Consent Calendar.
12. Second Reading and Amendment.
13. General File and Third Reading.
14. Unfinished Business.
15. Special Orders of the Day.
16. Remarks from the Floor; Introduction of Guests. A member may speak under this order of business for a period of not more than 5 minutes each day.
Rule No. 46. Privilege.
Any Senator may rise and explain a matter personal to himself by leave of the President, but he shall not discuss any pending question in such explanation.
Rule No. 47. Preference to Speak.
When two or more Senators rise at the same time the President shall name the one who may first speak—giving preference, when practicable, to the mover or introducer of the subject under consideration.
Rule No. 48. Special Order.
The President shall call the Senate to order on the arrival of the time fixed for the consideration of a special order, and announce that the special order is before the Senate, which shall be considered, unless it be postponed by a two-thirds vote, and any business before the Senate at the time of the announcement of the special order shall go to Unfinished Business.
Senator Raggio moved the adoption of the resolution.
Remarks by Senators Raggio and Neal.
Senator Raggio requested that the following remarks be entered in the Journal.
Senate Resolution No. 1 provides for the adoption of the Senate rules for the 18th Special Session of the Legislature. Because of the limited time available to consider the issues presented in the Governor’s proclamation, these rules have been drafted to accommodate the special circumstances of this session. The rules provide that the Senate will meet as a Committee of the Whole to hear all testimony on the legislation to be considered. This ensures that all members of the Senate can have input into the process and avoids the duplication of testimony. A bill or resolution may not be introduced unless it is first approved by the committee. Exceptions have been provided for bills that are necessary to carry out the business of the Senate and bills requested by the Governor so that the Senate may begin to conduct its business as soon as possible. The committee must also approve any amendment to legislation being considered. An amendment that is not proposed by the Committee of the Whole or by a conference committee may not be considered.
Because of the limited time available to complete this session, there are certain limitations on the period of time a member of the Committee of the Whole and members of Senate, when the Senate is in session, may speak on a question. Members of the committee may speak on an item on the committee’s agenda for no more than ten minutes. A member of the Senate may speak on a question for a period of not more than ten minutes. However, it is understood that a certain amount of flexibility is required to allow a proper understanding of the issues before us. Therefore, the rules allow the chairman of the committee or the President of the Senate to extend the amount of time for discussion if required for a full understanding of an issue being addressed.
Finally, it may be necessary to shorten the length of time required to process bills. To ensure that there is no unnecessary delay in completing the session, the rules of the Senate may be suspended by a majority vote unless a two-thirds vote is required by the State Constitution. For this same purpose, a motion to reconsider a vote will not be in order.
If you have any questions, I will be glad to answer them at this time.
Thank you, Madam President. I appreciate the explanation the Majority Leader has given relative to the rules to govern this Special Session. I am acutely aware that the rules have been drafted to allow for the control of the Majority in this House. I do not object to that, but I want to make it clear, for the Majority Leader has spoken to this, that the views any Senator might have, relative to whatever the phantom proposal may be dealing with regard to malpractice, and after reading it, I would be able to address it in a fashion whereby there may be a need for an amendment to make some correction to meet the needs of the public on this issue.
We have been reading and getting certain reports this morning through various individuals that someone is meeting with trial lawyers, doctors, people from the Assembly and the Governor to come up with some type of draft to be presented to this body. I want to be certain that all parties are involved in this issue, particularly, the patient and the insurance companies. We hear about the lawyers and the doctors arriving at an agreement, but we have not heard anything about the insurance companies or the patients coming to an agreement. After reading the language of the proposal concerning malpractice to be presented to us, I would like to address this particular issue in a fashion which will make it a part of the record even if we are not able to get it into law.
Madam President, we no doubt are dealing with a situation, and the situation has brought us here today. The malpractice issue, to people such as myself, seems that by putting a cap on the damages for pain and suffering life itself is being devalued in this process. If the Majority Leader is saying that under Rule No. 37 dealing with bills, resolutions and amendments, we would be able to ask that our proposal be put into writing and to present that to the committee, that would be sufficient. It would allow us to present a different view, if necessary, after reading the proposal. I thank him for the apparent fairness for trying to establish a process that would be amicable to all of us in addressing this critical issue and allowing us to voice our view on this particular issue.
Let me advance that a little further. My feeling would be this: when we meet as a Committee of the Whole, during the time that is allotted, if any member of the Senate wants to proffer an amendment that is pertinent and relevant, it should be the member’s privilege to present that amendment because we are all interested in anything that makes the proposed bill better. If that member needs some help in drafting an amendment in writing, for ordinarily it might come up as just a verbal suggestion, the bill drafters office will be available. Let us hope we do not have 63 people asking for 5 or 10 amendments because we will never get through the process. I think we will exercise a sense of reason in the process. It is also my feeling that if, for example, the committee authorizes a member to request and introduce a bill through the Committee of the Whole that the member’s name should go on the bill. Any amendments adopted, otherwise, by the committee should be Committee of the Whole amendments. I think that is as fair as we can be in this process. If anyone objects, let us know.
Resolution adopted unanimously.
By Senators Raggio and Titus:
Senate Resolution No. 2—Providing that no allowances will be paid for the 18th Special Session of the Nevada Legislature for periodicals, stamps, stationery or communications.
Senator Raggio moved the adoption of the resolution.
Remarks by Senator Raggio.
Resolution adopted unanimously.
By Senators Raggio and Titus:
Senate Resolution No. 3—Providing for the appointment of attachés.
Resolved by the Senate of the State of Nevada, That the following persons are elected as attachés of the Senate for the 18th Special Session of the Nevada Legislature: Mary Jo Mongelli, Ann-Berit Moyle, Mary R. Phillips, Molly Dondero, Susan S. Whitford, Jane Gill, Charles P. Welsh, John D. Turner, Ronald Sandoval, Shirley Hammon, Dorothy Souza, JoAnn Wessel, Sandy Arraiz, Judy Jacobs, Barbara Moss, Angel Robinson, Judith Toscano and Patricia Vardakis.
Senator Raggio moved the adoption of the resolution.
Remarks by Senator Raggio.
Resolution adopted unanimously.
MESSAGES FROM THE ASSEMBLY
Assembly Chamber, Carson City, July 29, 2002
To the Honorable the Senate:
I have the honor to inform your honorable body that the Assembly on this day adopted Assembly Concurrent Resolutions Nos. 1, 2.
Patricia R. Williams
Assistant Chief Clerk of the Assembly
MOTIONS, RESOLUTIONS AND NOTICES
APPLICABILITY OF JOINT RULES
Rule No. 1. Generally.
The Joint Rules for the 18th Special Session of the Legislature are applicable only during the 18th Special Session of the Legislature.
Rule No. 2. Procedure Concerning.
1. In every case of an amendment of a bill, or joint or concurrent resolution, agreed to in one House, dissented from in the other, and not receded from by the one making the amendment, each House shall appoint a committee to confer with a like committee to be appointed by the other; and the committee so appointed shall meet publicly at a convenient hour to be agreed upon by their respective chairmen and announced publicly, and shall confer upon the differences between the two Houses as indicated by the amendments made in one and rejected in the other and report as early as convenient the result of their conference to their respective Houses. The report shall be made available to all members of both Houses. The whole subject matter embraced in the bill or resolution shall be considered by the committee, and it may recommend recession by either House, new amendments, new bills or resolutions, or other changes as it sees fit. New bills or resolutions so reported shall be treated as amendments unless the bills or resolutions are composed entirely of original matter, in which case they shall receive the treatment required in the respective Houses for original bills, or resolutions, as the case may be.
2. The report of a conference committee may be adopted by acclamation, and such action may be considered equivalent to the adoption of amendments embodied therein. The report is not subject to amendment. If either House refuses to adopt the report, or if the first conference committee has so recommended, a second conference committee may be appointed. No member who served on the first committee may be appointed to the second.
3. There shall be but two conference committees on any bill or resolution. A majority of the members of a conference committee from each House must be members who voted for the passage of the bill or resolution.
Rule No. 3. Procedure Concerning.
1. Proclamations by the Governor convening the Legislature in extra session shall, by direction of the presiding officer of each House, be read immediately after the convening thereof, filed and entered in full in the Journal of proceedings.
2. Whenever a message from the Governor is received, the Sergeant at Arms will announce: “Mr. President, or Mr. Speaker, the Secretary of the Governor is at the bar.” The secretary will, upon being recognized by the presiding officer, announce: “Mr. President, or Mr. Speaker, a message from His Excellency, the Governor of Nevada, to the Honorable, the Senate or Assembly,” and hand same to the Sergeant at Arms for delivery to the Secretary of the Senate or Chief Clerk of the Assembly. The presiding officer will direct any message from the Governor to be received, read and entered in full in the Journal of proceedings.
3. Messages from the Senate to the Assembly shall be delivered by the Secretary or Assistant Secretary, and messages from the Assembly to the Senate shall be delivered by the Chief Clerk or Assistant Chief Clerk.
NOTICE OF FINAL ACTION
Rule No. 4. Communications.
Each House shall communicate its final action on any bill or resolution, or matter in which the other may be interested, by written notice. Each such notice sent by the Senate must be signed by the Secretary of the Senate, or a person designated by the Secretary. Each such notice sent by the Assembly must be signed by the Chief Clerk of the Assembly, or a person designated by the Chief Clerk.
BILLS AND JOINT RESOLUTIONS
Rule No. 5. Signature.
Each enrolled bill or joint resolution shall be presented to the presiding officers of both Houses for signature. They shall, after an announcement of their intention to do so is made in open session, sign the bill or joint resolution and their signatures shall be followed by those of the Secretary of the Senate and Chief Clerk of the Assembly.
Rule No. 6. Joint Sponsorship.
1. A bill or resolution introduced by a committee of the Senate or Assembly may, at the direction of the chairman of the committee, set forth the name of a committee of the other House as a joint sponsor, if a majority of all members appointed to the committee of the other House votes in favor of becoming a joint sponsor of the bill or resolution. The name of the committee joint sponsor must be set forth on the face of the bill or resolution immediately below the date on which the bill or resolution is introduced.
2. A bill or resolution introduced by one or more Legislators elected to one House may, at the direction of the Legislator who brings the bill or resolution forward for introduction, set forth the names of one or more Legislators who are members elected to the other House and who wish to be primary joint sponsors or non-primary joint sponsors of the bill or resolution. The number of primary joint sponsors must not exceed five per bill or resolution. The names of each primary joint sponsor and non-primary joint sponsor must be set forth on the face of the bill or resolution in the following order immediately below the date on which the bill or resolution is introduced:
(a) The name of each primary joint sponsor, in the order indicated on the colored back of the introductory copy of the bill or resolution; and
(b) The name of each non-primary joint sponsor, in alphabetical order.
3. The Legislative Counsel shall not cause to be printed the name of a committee as a joint sponsor on the face of a bill or resolution unless the chairman of the committee has signed his name next to the name of the committee on the colored back of the introductory copy of the bill or resolution that was submitted to the front desk of the House of origin or the statement required by subsection 5. The Legislative Counsel shall not cause to be printed the name of a Legislator as a primary joint sponsor or non-primary joint sponsor on the face of a bill or resolution unless the Legislator has signed the colored back of the introductory copy of the bill or resolution that was submitted to the front desk of the House of origin or the statement required by subsection 5.
4. Upon introduction, any bill or resolution that sets forth the names of primary joint sponsors or non-primary joint sponsors, or both, must be numbered in the same numerical sequence as other bills and resolutions of the same House of origin are numbered.
5. Once a bill or resolution has been introduced, a primary joint sponsor or non-primary joint sponsor may only be added or removed by amendment of the bill or resolution. An amendment which proposes to add or remove a primary joint sponsor or non-primary joint sponsor must not be considered by the House of origin of the amendment unless a statement requesting the addition or removal is attached to the copy of the amendment submitted to the front desk of the House of origin of the amendment. If the amendment proposes to add or remove a Legislator as a primary joint sponsor or non-primary joint sponsor, the statement must be signed by that Legislator. If the amendment proposes to add or remove a committee as a primary joint sponsor or non-primary joint sponsor, the statement must be signed by the chairman of the committee. A copy of the statement must be transmitted to the Legislative Counsel if the amendment is adopted.
6. An amendment that proposes to add or remove a primary joint sponsor or non-primary joint sponsor may include additional proposals to change the substantive provisions of the bill or resolution or may be limited only to the proposal to add or remove a primary joint sponsor or non-primary joint sponsor.
Rule No. 7. Ordering and Distribution.
Each House may order the printing of bills introduced, reports of its own committees, and other matter pertaining to that House only; but no other printing may be ordered except by a concurrent resolution passed by both Houses. Each Senator is entitled to the free distribution of four copies of each bill introduced in each House, and each Assemblyman to such a distribution of two copies. Additional copies of such bills may be distributed at a charge to the person to whom they are addressed. The amount charged for distribution of the additional copies must be determined by the Director of the Legislative Counsel Bureau to approximate the cost of handling and postage for the entire session.
Rule No. 8. Types, Usage and Approval.
1. A joint resolution must be used to:
(a) Propose an amendment to the Nevada Constitution.
(b) Ratify a proposed amendment to the United States Constitution.
(c) Address the President of the United States, Congress, either House or any committee or member of Congress, any department or agency of the Federal Government, or any other state of the Union.
2. A concurrent resolution must be used to:
(a) Amend these joint rules.
(b) Request the return from the Governor of an enrolled bill for further consideration.
(c) Resolve that the return of a bill from one House to the other House is necessary and appropriate.
(d) Express facts, principles, opinion and purposes of the Senate and Assembly.
(e) Establish a joint committee of the two Houses.
(f) Direct the Legislative Commission to conduct an interim study.
3. A concurrent resolution or a resolution of one House may be used to:
(a) Memorialize a former member of the Legislature or other notable or distinguished person upon his death.
(b) Congratulate or commend any person or organization for a significant and meritorious accomplishment.
Rule No. 9. Special Order.
Bills which have passed a previous Legislature, and which are transmitted to the Legislature next sitting, accompanied by a message or statement of the Governor’s disapproval, or veto of the same, shall become the subject of a special order; and when the special order for their consideration is reached and called, the said message or statement shall be read, together with the bill or bills so disposed or vetoed; and the message and bill shall be read in the Senate by the Secretary of the Senate and in the Assembly by the Chief Clerk of the Assembly, without interruption, consecutively, one following the other, and not upon separate occasions; and no such bill or message shall be referred to any committee, or otherwise acted upon, save as provided by law and custom; that is to say, that immediately following such reading the only question (except as hereinafter stated) which shall be put by the Chair is, “Shall the bill pass, notwithstanding the objections of the Governor?” It shall not be in order, at any time, to vote upon such vetoed bill without the same shall have first been read, from the first word of its title to and including the last word of its final section; and no motion shall be entertained after the Chair has stated the question save a motion for “The previous question,” but the merits of the bill itself may be debated.
Rule No. 10. Limitations and Calculation of Duration.
1. In calculating the permissible duration of an adjournment for 3 days or less, the day of adjournment must not be counted but the day of the next meeting must be counted, and Sunday must not be counted.
2. The Legislature may adjourn for more than 3 days by motion based on mutual consent of the houses or by concurrent resolution. One or more such adjournments may be taken to permit a committee or the Legislative Counsel Bureau to prepare the matters respectively entrusted to them for the consideration of the Legislature as a whole.
EXPENDITURES FROM THE LEGISLATIVE FUND
Rule No. 11. Manner of authorization.
Except for routine salary, travel, equipment and operating expenses, no expenditures shall be made from the Legislative Fund without the authority of a concurrent resolution regularly adopted by the Senate and Assembly.
RECORDS OF COMMITTEE PROCEEDINGS
Rule No. 12. Duties of Secretary of Committees and Director.
1. Each committee shall cause a record to be made of the proceedings of its meetings.
2. The secretary of a committee shall:
(a) Label each record with the date, time and place of the meeting and also indicate on the label the numerical sequence in which the record was made;
(b) Keep the records in chronological order; and
(c) Deposit the records immediately following the final adjournment of the special session of the Legislature with the Director of the Legislative Counsel Bureau.
3. The Director of the Legislative Counsel Bureau shall:
(a) Index the records;
(b) Make the records available for accessing by any person during office hours under such reasonable conditions as he may deem necessary;
(c) Maintain a log as a public record containing the date, time, name and address of any person accessing any of the records and identifying the records accessed; and
(d) Retain the records for two bienniums and at the end of that period keep some form or copy of the record in any manner he deems reasonable to ensure access to the record in the foreseeable future.
LIMITATIONS ON REQUESTS FOR
DRAFTING OF LEGISLATIVE MEASURES
Rule No. 13. Germaneness Required for Amendments.
1. The Legislative Counsel shall not honor a request for the drafting of an amendment to a bill or resolution if the subject matter of the amendment is independent of, and not specifically related and properly connected to, the subject that is expressed in the title of the bill or resolution.
2. For the purposes of this Rule, an amendment is independent of, and not specifically related and properly connected to, the subject that is expressed in the title of a bill or resolution if the amendment relates only to the general, single subject that is expressed in that title and not to the specific whole subject matter embraced in the bill or resolution.
OF LEADERSHIP OF THE SENATE
AND ASSEMBLY DURING THE INTERIM
Rule No. 14. Tenure and Performance of Statutory Duties.
1. Except as otherwise provided in subsections 2 and 3, the tenure of the President pro Tem, Majority Leader and Minority Leader of the Senate and the Speaker, Speaker pro Tem, Majority Floor Leader and Minority Floor Leader of the Assembly extends during the interim between regular sessions of the Legislature.
2. The Senators designated to be the President pro Tem, Majority Leader and Minority Leader for the next succeeding regular session shall perform any statutory duty required in the period between the time of their designation after the general election and the organization of the next succeeding regular session of the Legislature if the Senator formerly holding the respective position is no longer a Legislator.
3. The Assemblymen designated to be the Speaker, Speaker pro Tem, Majority Floor Leader and Minority Floor Leader for the next succeeding regular session shall perform any statutory duty required in the period between the time of their designation after the general election and the organization of the next succeeding regular session.
AND PROCEDURES REGARDING
Rule No. 15. Maintenance of Working Environment; Procedure for Filing, Investigating and Taking Remedial Action on Complaints.
1. The Legislature hereby declares its intention to maintain a working environment which is free from sexual harassment. This policy applies to all Legislators and lobbyists. Each member and lobbyist is responsible to conduct himself or herself in a manner which will ensure that others are able to work in such an environment.
2. In accordance with Title VII of the Civil Rights Act, for the purposes of this rule, “sexual harassment” means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
(a) Submission to such conduct is made either explicitly or implicitly a term or condition of a person’s employment;
(b) Submission to or rejection of such conduct by a person is used as the basis for employment decisions affecting the person; or
(c) Such conduct has the purpose or effect of unreasonably interfering with a person’s work performance or creating an intimidating, hostile or offensive working environment.
3. Each person subject to these rules must exercise his own good judgment to avoid engaging in conduct that may be perceived by others as sexual harassment. The following noninclusive list provides illustrations of conduct that the Legislature deems to be inappropriate:
(a) Verbal conduct such as epithets, derogatory comments, slurs or unwanted sexual advances, invitations or comments;
(b) Visual conduct such as derogatory posters, photography, cartoons, drawings or gestures;
(c) Physical conduct such as unwanted touching, blocking normal movement or interfering with the work directed at a person because of his sex;
(d) Threats and demands to submit to sexual requests to keep a person’s job or avoid some other loss, and offers of employment benefits in return for sexual favors; and
(e) Retaliation for
opposing, reporting or threatening to report sexual harassment, or for
participating in an investigation, proceeding or hearing conducted by the
Legislature or the Nevada Equal Rights Commission or the federal Equal
when submission to such conduct is made either explicitly or implicitly a term or condition of a person’s employment or submission to or rejection of such conduct by a person is used as the basis for employment decisions affecting the person or such conduct has the purpose or effect of unreasonably interfering with a person’s work performance or creating an intimidating, hostile or offensive working environment.
4. A person may have a claim of sexual harassment even if he has not lost a job or some other economic benefit. Conduct that impairs a person’s ability to work or his emotional well-being at work constitutes sexual harassment.
5. If a Legislator believes he is being sexually harassed on the job, he may file a written complaint with:
(a) The Speaker of the Assembly;
(b) The Majority Leader of the Senate; or
(c) The Director of the Legislative Counsel Bureau, if the complaint involves the conduct of the Speaker of the Assembly or the Majority Leader of the Senate.
The complaint must include the details of the incident or incidents, the names of the persons involved and the names of any witnesses.
6. Except as otherwise provided in subsection 7, the Speaker of the Assembly or the Majority Leader of the Senate, as appropriate, shall refer a complaint received pursuant to subsection 5 to a committee consisting of Legislators of the same House. A complaint against a lobbyist may be referred to a committee in either House.
7. If the complaint involves the conduct of the Speaker of the Assembly or the Majority Leader of the Senate, the Director of the Legislative Counsel Bureau shall refer the complaint to the Committee on Elections, Procedures and Ethics of the Assembly or the Committee of the Whole of the Senate, as appropriate. If the Speaker of the Assembly or the Majority Leader of the Senate is a member of one of these committees, the Speaker or the Majority Leader, as the case may be, shall not participate in the investigation and resolution of the complaint.
8. The committee to which the complaint is referred shall immediately conduct a confidential and discreet investigation of the complaint. As a part of the investigation, the committee shall notify the accused of the allegations. The committee shall facilitate a meeting between the complainant and the accused to allow a discussion of the matter, if both agree. If the parties do not agree to such a meeting, the committee shall request statements regarding the complaint from each of the parties. Either party may request a hearing before the committee. The committee shall make its determination and inform the complainant and the accused of its determination as soon as practicable after it has completed its investigation.
9. If the investigation reveals that sexual harassment has occurred, the Legislature will take appropriate disciplinary or remedial action, or both. The committee shall inform the complainant of any action taken. The Legislature will also take any action necessary to deter any future harassment.
10. The Legislature will not retaliate against a person who files a complaint and will not knowingly permit any retaliation by the person’s supervisors or coworkers.
11. The Legislature encourages a person to report any incident of sexual harassment immediately so that the complaint can be quickly and fairly resolved.
12. Action taken by a complainant pursuant to this rule does not prohibit the complainant from also filing a complaint of sexual harassment with the Nevada Equal Rights Commission or the federal Equal Employment Opportunity Commission.
13. All Legislators and lobbyists are responsible for adhering to the provisions of this policy. The prohibitions against engaging in sexual harassment and the protections against becoming a victim of sexual harassment set forth in this policy apply to employees, Legislators, lobbyists, vendors, contractors, customers and visitors to the Legislature.
14. This policy does not create any enforceable legal rights in any person.
Senator Raggio moved the adoption of the resolution.
Remarks by Senator Raggio.
Resolution ordered transmitted to the Assembly.
Assembly Concurrent Resolution No. 2.
Senator Raggio moved the adoption of the resolution.
Remarks by Senator Raggio.
Resolution ordered transmitted to the Assembly.
INTRODUCTION, FIRST READING AND REFERENCE
By Senators Raggio and Titus:
Senate Bill No. 1—AN ACT making an appropriation to the legislative fund for the costs of the 18th Special Session; and providing other matters properly relating thereto.
Senator Raggio moved that all rules be suspended, reading so far had considered first reading, rules further suspended, Senate Bill No. 1 be declared an emergency measure under the Constitution and placed on third reading and final passage.
Remarks by Senator Raggio.
Motion carried unanimously.
GENERAL FILE AND THIRD READING
Senate Bill No. 1.
Bill read third time.
Senator Raggio moved that the Senate recess subject to the call of the Chair.
Senate in recess at 11:21 a.m.
SENATE IN SESSION
At 11:25 a.m.
President Hunt presiding.
Remarks by Senators Raggio and Neal.
Roll call on Senate Bill No. 1:
Senate Bill No. 1 having received a constitutional majority, Madam President declared it passed.
Senator Raggio moved that all rules be suspended and that Senate Bill No. 1 be immediately transmitted to the Assembly.
Motion carried unanimously.
Bill ordered transmitted to the Assembly.
MOTIONS, RESOLUTIONS AND NOTICES
Senator Raggio moved that all rules be suspended, that for the remainder of the Eighteenth Special Session, reading so far had considered second reading, rules further suspended, and that all bills and joint resolutions reported out of the Committee of the Whole for floor consideration be declared emergency measures under the Constitution and placed on third reading and final passage.
Remarks by Senator Raggio.
Senator Raggio requested that his remarks be entered in the Journal.
Madam President. This will speed up the legislative process of the Special Session by moving bills and joint resolutions immediately to the General File for passage or amendment.
Motion carried unanimously.
Senator Raggio moved that all rules be suspended, and that all bills and resolutions returned from reprint be immediately placed on the appropriate reading file, time permitting.
Remarks by Senator Raggio.
Senator Raggio requested that his remarks be entered in the Journal.
Madam President. This will also speed up the legislative process by eliminating the one-day wait to consider amended bills and resolutions on the General or Resolution File.
Motion carried unanimously.
Senator Raggio moved that all rules be suspended and that all bills and resolutions be immediately transmitted to the Assembly.
Remarks by Senator Raggio.
Senator Raggio requested that his remarks be entered in the Journal.
Moving bills and resolutions immediately to the Assembly will expedite the opportunity for the other House to address important issues during this Special Session.
Senator Raggio moved that the Senate recess subject to the call of the Chair.
Senate in recess at 11:31 a.m.
SENATE IN SESSION
At 3 p.m.
President Hunt presiding.
MESSAGES FROM THE ASSEMBLY
Assembly Chamber, Carson City, July 29, 2002
To the Honorable the Senate:
I have the honor to inform your honorable body that the Assembly on this day passed Senate Bill No. 1.
INTRODUCTION, FIRST READING AND REFERENCE
By Senators Raggio, Titus, Amodei, Care, Carlton, Coffin, Jacobsen, Mathews, McGinness, Milburn, O'Connell, O’Donnell, Paulk, Rawson, Rhoads, Schneider, Shaffer, Townsend, Washington and Wiener:
Senate Bill No. 2—AN ACT relating to malpractice; limiting the liability of certain medical providers for negligent acts under certain circumstances; establishing a limitation on the amount of noneconomic damages that may be awarded in an action for medical malpractice or dental malpractice; providing for several liability of a defendant for noneconomic damages in an action for medical malpractice; making various changes concerning the payment of future economic damages in actions for medical malpractice; providing for the mandatory dismissal of an action for medical malpractice or dental malpractice under certain circumstances; repealing the provisions pertaining to the use of screening panels for an action for medical malpractice or dental malpractice; revising the statute of limitations for filing an action for medical malpractice or dental malpractice; making various other changes concerning actions for medical malpractice or dental malpractice; requiring certain district judges to receive training concerning the complex issues involved in medical malpractice litigation; requiring courts to impose certain sanctions on attorneys in certain circumstances; making various changes relating to the reporting of claims of malpractice or negligence; and providing other matters properly relating thereto.
Senator Raggio moved that the bill be referred to the Committee of the Whole.
MOTIONS, RESOLUTIONS AND NOTICES
Senator Raggio moved that the Senate resolve itself into a Committee of the Whole for the purpose of considering Senate Bill No. 2.
The Senate will convene the Committee of the Whole in Room 1214 with Senator Raggio as Chairman. Once the Committee of the Whole is dissolved, we will return to the Senate Chamber. The Senate is now resolved into a Committee of the Whole.
IN COMMITTEE OF THE WHOLE
At 3:11 p.m.
Senator Raggio presiding.
Senate Bill No. 2 considered.
The Committee of the Whole was addressed by Senator Raggio; Governor Kenny Guinn; Jan Needham, Principal Deputy Legislative Counsel; Bradley A. Wilkinson, Principal Deputy Legislative Counsel; Scott Young, Principal Research Analyst; Bill Bradley, Attorney, Nevada Trial Lawyers Association; Mark Brown, M.D., Chairman, Nevada Mutual Insurance Company; John Cotton, Attorney, Nevada Physicians Task Force; J. R. Crockett, Jr., Attorney, Nevada Trial Lawyers Association; James D. DeRoche, Attorney; John Echeverria, Attorney, Nevada Trial Lawyers Association; Lonnie L. Hammargren, M.D., Neurosurgical Associates of Nevada; Dean Hardy, Nevada Trial Lawyers Association; Florence Jameson, M.D., OB/GYN Physician; Ikram U. Khan, M.D., General Surgery; Charles Laws, Green Party, Candidate for Governor; Robert B. McBeath, M.D., Nevada Medical Liability Physicians Task Force; Daniel S. McBride, M.D., Physician, Chairman, Nevada Mutual Insurance Company; Diane Meyer; Wende Nostro; Kristie O’Neill; Tim O’Neill; Susan Roe, Registered Nurse; Robert W. Schreck, M.D., President, Nevada Medical Association; Charles (Chip) Wallace, Communications Director/Cofounder, Nevada Mutual Insurance Company.
Senator Raggio requested that the remarks made during the Committee of the Whole be entered in the Journal.
We are sitting as a Committee of the Whole to consider Senate Bill No. 2. As I noted this morning in the Senate, we have before us the Governor’s proclamation detailing the issues we have been convened to address. We are constitutionally bound to restrict our transactions to those items. We will meet in the Committee of the Whole, morning, afternoon and evenings, for whatever time is necessary to hear all of the matters that come before us properly. I want to re-emphasize we will attempt to provide a reasonable opportunity for all positions to be heard, but it will be necessary to observe time limits so that we can conclude our work in a timely fashion. At a press conference, that was just convened, there is an indication that the parties that have been at opposite ends of these issues have come together in an accord, and that accord is, apparently, now reflected in Senate Bill No. 2. It may be that we will not have opponents on each one of these issues that are before us.
In any event, let me again mention the procedures we will be observing in the Committee of the Whole. After the Governor’s presentation on the bill, we will focus on one specific topic at a time. Today, our attention will be on the portion of the bill dealing with the cap on noneconomic damages and any related item to caps on damages. Within a fixed amount of time, representatives of interested groups will testify, and we will provide equal time to address each topic without interruption. At the conclusion of these presentations, the members of the majority party and the members of the minority party will have an equal amount of time for questions and statements. We will observe time limits in this phase of our proceedings to accommodate efficiency.
Because of the constitutional limits on the subject matter, any discussions beyond the topics in the Governor’s proclamation will be ruled out of order. After legislators have finished questions or statements, there also will be an opportunity for any additional public comment. It may not be necessary, now the sides have come together, but we will afford them that opportunity. We will have to observe some time limits as well if we are going to be able to conclude an orderly presentation and have the deliberations that are necessary. Following that, the Senate may vote on that specific agenda item. We will do so if we make a decision in this committee, and if there are any changes or amendments, then the bill drafters can prepare a final version of the bill. As I explained on the floor this morning, any amendment to the bill or any request for a bill draft will require a majority vote of the committee for that purpose. The process is going to be repeated, if necessary, for each agenda item until we consider the proposal before us in its entirety.
During these hearings, in the Committee of the Whole, the members of the committee as well as others will please turn off all pagers, cell phones and computers. This is not as formal as the Senate itself, although, we will observe the decorum that is usual in the Senate. If you want to remove your jackets or be more comfortable, please feel free to do so. Finally, at the end of each day, the Committee on the Whole will rise and return to the Senate Chambers to adjourn for the day. After the Governor and his staff’s presentation, we will adopt some rules for the committee, and then proceed to our agenda.
Before we hear from the Governor, are there any questions or comments from members of the committee? Are there any comments from the staff?
If not, we are pleased, today, to have with us Governor Kenny Guinn. We appreciate your efforts in calling forth this session to deal with this crisis, and we welcome your appearance before this committee.
Good afternoon. Before I begin my testimony, I want to be sure everyone understands that my testimony is not all-inclusive of the bill. You have a copy of the bill. It is in great detail. It is incumbent of me, as a Governor to make sure that I produce testimony that will be a formal record as we move forward in this process. In many cases I will read the testimony because it is important for us to stay on track and to indicate the support on the basis of which we make these recommendations to you through this law. I would like to thank my staff; Marybel Batjer, Chief of Staff; Mike Hillerbee, Deputy; and Keith Monroe, Legal Counsel. Also, I want to thank Brenda Erdoes, Kim Morgan and the other Legal staff members. I do not know how they work as many hours as they do without sleep. Without them, we could not have brought you this law in this time period. I want to thank them publicly. Without them, we would not be here today. They have all done a tremendous amount of work.
I have convened this special session, today, because Nevada is in a health care crisis. The cost of medical liability insurance has risen to unacceptable levels. The inability of doctors to obtain their insurance at reasonable rates is endangering the health of our citizens. Therefore, I believe immediate change in our laws is necessary to address this health care crisis.
The events leading up to this crisis began late last year, when, as many of you know, the St. Paul Insurance Company announced its decision to stop providing medical liability insurance to over 60 percent of Las Vegas doctors. St. Paul’s decision was based upon an estimate that it was losing several million dollars annually because of lawsuits and claims against Nevada doctors.
As Governor, it was my duty to address this crisis head on. On Wednesday, January 23, I met with over 30 Las Vegas area doctors. At this meeting the doctors told me that medical liability insurance had become unavailable to them, and as a result, doctors were going to have to turn patients away, limit their services, or in the worst case, close their practices. At this meeting, I also learned that some insurers were quoting premium increases of 300 to 500 percent, citing the high number of medical malpractice lawsuits in Nevada, and the lack of a “cap” on noneconomic damages. To illustrate this concern, the doctors told me that medical malpractice cases in Clark County more than doubled over the past six years, with $21 million in jury awards last year alone.
Concerned that a lack of medical liability insurance was affecting access to medical care, on February 4, only eight days after my first meeting with the doctors, I directed the Insurance Commissioner to issue a Notice of Hearing. I wanted each and every medical liability insurance carrier authorized to do business in Nevada to provide testimony regarding their market intentions and conduct, practices in rating and underwriting, their premium payment plans, including “tail coverage,” and their loss experience in Nevada. The hearing was scheduled for March 4, the first possible day for holding the hearing under Nevada legal notice requirements.
At the hearing, representatives from 13 insurance companies were present and testified on medical liability insurance coverage in the State. Also present and testifying were several medical representatives and associations, individual physicians and surgeons, insurance agents and brokers, representatives of the Nevada Trial Lawyers Association, and a representative from the Reinsurance Association. The record of the hearing also remained open for an additional week to allow all parties the opportunity to submit testimony. At the close of the administrative record, on March 12, the Insurance Commissioner determined that the unavailability of medical malpractice insurance had reached a critical stage.
The Commissioner found, and I quote, “There is overwhelming evidence that medical malpractice insurance is unavailable for medical practitioners in the State of Nevada. It is essential that services provided to Nevada citizens by the medical community not be curtailed. There is evidence that, in particular, certain medical specialties are affected by the unavailability of medical malpractice insurance, including, but not limited to, those physicians in OB/GYN, emergency trauma, radiology, surgery and ophthalmology, and there is evidence that, of the insurers present at the hearing, two companies are leaving the State of Nevada, and of the remaining insurers offering medical malpractice insurance in Nevada, most would not offer it to those doctors in the specialty areas of OB/GYN, emergency trauma, radiology, surgery and ophthalmology.”
After reviewing the evidence and findings, I knew Nevada was indeed in a health care crisis of great magnitude. It became abundantly clear to me that the State needed to intervene with a short-term solution to prevent doctors from limiting their services, and, at the very worst, closing their doors. I am responsible for the health and safety of all citizens of Nevada. I am compelled to ensure that pregnant women and those in distress receive adequate medical care. Therefore, I took an extraordinary step, I directed the Insurance Commissioner to establish the Nevada Essential Insurance Association, now the Medical Liability Association of Nevada, to provide medical liability insurance to Nevada doctors so that our citizens could continue to receive medical care from experienced and competent doctors, doctors they know and trust. The Association was established by emergency regulations on March 15, 2002.
On March 26, the State Board Of Examiners approved spending $250,000 to create and initially fund the Association. The Association was able to begin accepting applications from Nevada doctors on April 15, just one month after the Insurance Commissioner declared that Nevada was in a health care crisis. Initially, the Association’s coverage was “claims-made” with coverage provided on a “go forward” basis from the inception date of the policy. There was no coverage for acts committed prior to the inception date of a policy issued by the Association. Because insurance companies pulled out of Nevada, doctors were forced to pay tens of thousands of dollars, and in some cases more, for “prior acts” or “tail coverage” in addition to increased cost of premiums.
While doctors were first confronted with a lack of available insurance, the crisis of availability had now also turned into a crisis of affordability. In the case of OB/GYNs, doctors were receiving insurance quotes that limited them to 125 births per year. With the requirement that if they went beyond 125 births they would have to pay an additional $20,000. This came at a time when doctors had been delivering an average of 240 babies annually. This made the crisis greater. As one doctor said “It’s a terrible day for the entire community when a doctor cannot afford to deliver a baby.”
On May 29, I announced that the Association would make upgrades to the plan. The plan would offer prior-acts’ coverage to all physicians, would reduce rates for surgical OB/GYNs by 18 percent, approximately $16,000, and would eliminate tiered premiums on deliveries, no longer discouraging OB/GYNs from delivering more than 125 babies a year. I felt the upgraded plan offered by the State would help to provide necessary medical care in emergency rooms and maternity wards.
In addition to our OB/GYN community limiting services, Nevada’s only level-1 trauma center, UMC, was now warning the State it might be forced to close its doors. In June, several trauma surgeons and specialty surgeons resigned or requested leave from the UMC trauma center facing imminent closure. As early as February, physicians at the UMC trauma center had warned the community that the lack of affordable malpractice insurance could force the only trauma facility in Southern Nevada to divert patients to other states. In late February, we were told that the UMC trauma center might have to reduce hours because there were not enough trauma surgeons to fill all three shifts. It was quite possible the trauma center would close its doors in June.
On May 31 the trauma surgeons issued another warning; they would be forced to sever their ties with the UMC trauma center unless they could obtain insurance that would protect them at a reasonable rate. As many as 15 specialty surgeons who assist the trauma center’s general surgeons said they would not be available this summer unless they could get financial relief from skyrocketing insurance costs, and limited liability.
On June 6, five trauma surgeons and 26 specialty surgeons resigned or requested leave from UMC’s trauma center. On June 18, twenty-one doctors were denied their request for a leave of absence from the UMC trauma center when the Clark County Commission decided that the quality of care would be jeopardized if the leaves were granted. The Commission also eliminated voluntary on-call policies, which meant that private physicians with privileges at the medical center would have to cover mandatory hospital shifts in the emergency room and trauma center if necessary. This forced doctors to decide between taking risky on-call emergency shifts or resigning from the hospital. Subsequently, 56 of the 58 orthopedic surgeons resigned from UMC, forcing the trauma center to close its doors on July 3, 2002, during the July 4 holiday. Fortunately, no lives were lost as a result of the closure, and a short-term solution was reached. The center reopened on July 13 after the Attorney General issued an opinion concluding that physicians would be protected by a temporary $50,000 cap on noneconomic damages if they returned to work at the UMC trauma center. Thankfully, 15 doctors returned.
In the meantime, another urgent situation was temporarily averted on June 12, 2002, when the State Board of Examiners recommended an emergency allocation of almost $400,000 to help pay the rising cost of medical malpractice insurance for the doctors and interns at the University of Nevada School of Medicine. I had hoped the short-term solutions would provide stable and reliable medical malpractice insurance for Nevada’s doctors until the 2003 legislative session, when laws could be adopted to resolve the crisis. It is incumbent upon me to exercise every emergency power that I have as Governor to address this crisis.
In mid-June, I formally called upon all affected parties to sit down at the table and work in good faith towards finding a common ground on the many complex issues, and to come up with a solution to the crisis within 45 days―a tort reform package I could bring to you. I called for 45 days of earnest negotiations among doctors, lawyers and insurance representatives. I informed the parties that if they could not come up with a plan by July 26 I would follow through as the Governor of this State and recommend a law, which I am doing today.
While the parties agreed on four topics for discussion: tort reform, insurance reform, medical records disclosures, and the State’s Medical Dental Legal Screening Panel, they could not reach consensus on the issues. However, great progress was made with many of their ideas, which are contained in this bill. Nevada is out of short-term solutions to mend a long-term problem. We are now faced with the urgent need to develop a long-term solution to the health crisis.
In response to this predicament I was left with only one choice, to convene this special session and present to you my plan to address the crisis, a bill which lays the foundation for reforming the system, and which is a critical first step towards a long-term solution to the health care crisis. As the representatives of the people of Nevada, it is incumbent upon you, the Nevada Legislature, to adopt this bill. The purpose of this law as put forth, today, will be a strong foundation for us to begin the process to bring stability to the entire health care area. You have a unique and special opportunity. We must assure our citizens that quality health care is available now and well into the future.
In convening this special session, I am asking that you adopt new laws and change others, which will maintain the integrity of health care for all Nevadans. As our people’s representatives, we all have an obligation to address the serious problems faced by our health care providers. I am presenting a bill to you, which represents comprehensive reform to our State and is the result of extensive discussions with doctors, patients, lawyers, insurance representatives and citizens. The intent of this legislation is to solve our health care crisis. We need to reduce health care premiums paid by health care providers. We need to create an environment where our doctors can continue to treat the most critically injured trauma patients, and where expectant mothers get the specialized care they need. We need to control medical costs and thereby make health care more readily available.
I feel now it is time to take a few minutes to explain the fundamental elements of my bill. One of the most unpredictable elements in the medical malpractice insurance marketplace is the awarding of noneconomic damages by a jury, damages for pain and suffering. The reason for this is because it is inherently difficult for a jury to place a monetary value on noneconomic losses. As a result, these awards can substantially vary from case to case and do. To provide a greater stability in the medical liability insurance market, I recommend the passage of legislation providing that in a medical malpractice case, noneconomic damages, such as pain and suffering, may not exceed $350,000, with exceptions that protect the most grievously injured patients. Such legislation will provide the State of Nevada with greater stability and will make the underwriting practices within the medical liability insurance industry more predictable.
To prevent the real possibility that many doctors will close their practices, leave our State, or turn away patients, I am recommending that you adopt a several liability standard for noneconomic damages in medical malpractice cases. Under the several liability standard, health care providers are ensured that they are responsible only for the portion of noneconomic damages directly attributable to their conduct. This is another established method of dealing with the inherent difficulties in placing monetary value on pain and suffering. Enacting this standard will provide health care providers with greater security so that they can perform high-risk procedures and should also work to lower medical liability insurance costs. Under our existing laws, persons who in good faith render emergency care, such as ambulance operators, firefighters, and members of search and rescue teams, receive immunity from civil liability.
In order to control health care costs to the public and thereby make health care more readily available, I believe it is necessary to extend similar protection to doctors who work in our trauma centers. For a doctor in a trauma setting, who in good faith renders medical care that has been caused by a sudden, unexpected situation, which demands immediate medical attention, I recommend legislation that would limit civil liability to not more than $50,000. Such legislation would provide additional protection for those doctors who work in a difficult environment performing high-risk procedures and will keep health care readily available to our citizens.
As you know, current law pertaining to reporting disciplinary actions, claims, settlements and court awards against providers requires doctors and certain other persons to report this conduct. The intent of this law is to address the issue of doctors who do not practice at the standard of care we expect in our State. The law is comprehensive and provides for severe penalties for failure to report such claims. I recommend that the existing reporting requirements regarding disciplinary actions, claims, settlements and court awards against providers be strengthened. For example, a doctor who fails to report such a claim would be subject to discipline or non-renewal of his or her license. Insurers who fail to report claims within 30 days would be punishable by a fine of up to $10,000 per incident. The same would hold true for hospitals and other medical facilities that fail to report changes in a provider’s privileges and fail to report disciplinary proceedings. Everyone must enjoy a presumption of innocence, so the existence of these claims and proceedings in medical facilities would be confidential, unless required by a court. The claim and settlement information, such as jury awards, which is presently considered a public record, would remain public.
I am recommending that you approve a change to Nevada law to allow a judge the discretion to order that jury-awarded settlements for future damages be paid on a periodic basis. Periodic payments ensure that money paid to an injured plaintiff will be available when the plaintiff incurs the anticipated expenses or losses in the future. Allowing greater discretion to our judges will allow for better flexibility in meeting the needs of the injured patient.
Next, I am recommending legislation to amend our statute of limitations provisions. Having a longer time period for permitting claims to be brought allows for an increase in insurance rates, an increase in medical costs and a lack of medical services available to our public. Under our current law, a plaintiff must file his medical malpractice action not more than four years after the date of injury or two years after the plaintiff discovers or through the use of reasonable diligence, should have discovered the injury. Our courts have long recognized that the legislature may establish time periods affecting liability for past acts. Therefore, I am recommending that legislation be approved that shortens the time frame for filing a medical malpractice action and requires an action to be filed within three years of the date of injury and two years after the date of discovery.
I am recommending the passage of legislation that repeals the medical and dental screening panels. The original intent of the screening panels was to minimize frivolous suits against doctors, to encourage settlement and to lower the costs of malpractice premiums. Conceptually, the screening panels are will intended. However, in practice, as evidenced by our current health crisis, the screening panels have not met the purposes for which they were created. In place of the screening panels, I recommend the legislation requiring the courts to create a fast-track system for medical malpractice cases. The courts should adopt provisions that expedite discovery, mandate early pre-trial and settlement conferences, and require the parties to engage in alternative forms of dispute resolution early in the litigation. This fast-track system should eliminate delay and allow our citizens to have their medical malpractice cases heard in an expedited manner by our courts.
As this health crisis unfolds, I have learned that our judges need more expertise in the area of medical malpractice litigation. Therefore, I am recommending that you enact the provisions of this bill to ensure that judges have training in complex medical malpractice litigation before handling such cases. This should ensure reliability and accuracy in the results of these difficult cases.
With this bill, I am also recommending that attorneys, who file and pursue frivolous lawsuits as determined by the judge, be required to pay for all costs, expenses and fees that arise as a result of their unreasonable conduct. While most Nevada lawyers represent their clients in a professional manner, lawyers who are found to have pursued a frivolous case by the judge should be held accountable for their role in increasing costs and delaying justice for legitimate injured plaintiffs.
In conclusion, these measures will better serve our citizens and are intended to lower the cost of medical liability insurance for our health care providers. The bill before you balances the needs of injured parties, patients who seek the best medical care available and the doctors who must purchase and carry insurance to protect themselves and their patients. I called representatives from the legal, medical and insurance communities together and gave them 45 days to build consensus on these very important issues. They were unable to reach consensus. However, progress was made, and this bill contains the elements of their efforts. I have, therefore, written in this bill the elements that I feel will act to resolve our health care crisis. The time has run out. The people of Nevada and I, as Governor, now turn to you. The citizens of Nevada are depending on you to create new laws that will ease their fears and erase their doubts. Our citizens need to be assured that they will receive only the highest level of health care now, and well into Nevada’s future.
This is especially true for the expectant mothers in our State. Each year, approximately 25,000 babies are born in Clark County alone. Having a baby is perhaps the most precious, important moment for a mother, father and their extended family. Expectant parents should not be robbed of this special time because there aren’t enough doctors to provide adequate pre-natal care and to assist in the birth of a healthy newborn. If you do not act now, by October or November, there will not be enough OB/GYNs practicing in Clark County to provide proper care for thousands of women. You have a unique opportunity in this special session. This bill represents a beginning. I urge its consideration. Thank you.
My staff and I will be available to answer questions to expand on any of the areas because we can only highlight these issues in this presentation.
I am going to ask our counsel, Brad Wilkinson, at the appropriate time, to go into detail on the bill. Are there any questions for the Governor at this time?
I want to thank all the doctors, lawyers and the legislative committee. There are not many places outside of Nevada where we can come together from all walks of life and put a bill together as complex as this subject is. We listed 11 items in the proclamation, and those were listed after all the discussion. When we got finished everyone had their explanations that had this interest. I am pleased to say, publicly, that everyone agreed upon 9 out of 11 issues. The discussions we have gone through these last few days have only been for two issues, and those were for good cause. There was give and take on issues such as collateral sources and joint and several. Some of these other areas that we are talking about; lawyer pays, records and disciplinary procedures for doctors who don’t follow procedures, and insurance companies, all came about. The only thing we changed out of the 11 is that we dropped 2 small items and added the fast-track system which everyone wanted. It took us to the last minute to put it in the language that we needed. That allowed us to take out the much more difficult recommendation on the hearing panel, the screening panel, and allowed us to say we are going to phase it out. We will keep our screening panel. It is not as clear. I would like it to be in the letter of the law, but the screening panel we have, today, will only be used, when we pass this bill, to phase out the 250 cases and then will “sunshine.” Then we will be in a much better position with fast tracking. We are pleased to come about with 9 sustained agreements out of 11, changed 2 small items and turned them into 2 big ones.
I know that the bill covers a limited amount of liability for doctors operating in a trauma setting. Was any consideration given to situations where doctors act in a pro-bono manner and provide pro-bono service, but there is no egregious conduct or gross negligence, will these be given immunity?
Yes, absolutely, hopefully, later today or tomorrow, we can work out a time schedule. I plan to do this after talking to you and some of the leadership people on the Assembly side. I. say to you that this is a great opportunity both for the lawyers and for the doctors. What they have agreed to do, and I am certainly willing to add it to the expansion of the proclamation, is say that any doctor, who volunteers his or her time in a non-profit health center where services are given will get complete immunity unless they commit egregious conduct. These doctors can volunteer freely and go there and help those who need that special help. The lawyers agreed to it and worked hard on it, and the doctors have said this is great for everyone, but more importantly, it will be great for those less fortunate than many of us in this room.
That is not in the bill at the present time?
I will do that over the next day or so. It is a great opportunity.
Governor, I was wondering in the deliberations was any consideration given to nurse-midwives? Was there any discussion in that area? Outside of Las Vegas, nurse-midwives are used quite a bit, and their malpractice insurance is going just as high, percentage wise.
In this case, there was not, but there are a number of areas that we think need to come back during the session. We have to look at all the training and requirements of what it takes for them to be a midwife. I think it is a very good subject for us to look at in the next legislative session.
Outside of Mississippi, they are lay people, but in this State, they all have to be “masters prepared.”
I am pleased to say I was born outside of a hospital, and I had that experience. They did well.
Governor, I just had a cursory review of the bill. It seems to be put together very well. I have one question about the training requirements that are imposed upon the Supreme Court. You seem to want to mandate the court to rule for mandatory, appropriated training on these complex issues dealing with malpractice. My concern is the separation of powers. I wondered had there been any discussions with the Court relative to this issue.
Yes, I have had a number of discussions and written communications on some of the laws that are already on our books. We were very careful in all these areas and that is why I read into the record what I did, to substantiate why we are doing this for the medical crisis area and not necessarily for insurance. We looked at passed laws. You have every right, but I don’t have them. You can direct certain things to the Court, and you have done many times in the passed. It is an encouragement, and we are asking them to set up a procedure. They get to determine their time schedules and the courses needed. We are not directing them to do that. I want to make certain that the intent of this legislation, from your point of view, that the record would show that you would like them to have some specialized training. I can give you an example. I have appointed nine or so judges. I think they have all been doing an outstanding job. Their experience is varied. It goes all the way from 30 to 35 years as an attorney and then some are very young. The last few I appointed come out of a municipal court setting, and they handled a different kind of a case other then medical malpractice or construction defects. At the present time, the courts have a methodology whereby they randomly assign judges to cases. We are asking them not to be randomly appointed until these people get a chance to go to the judicial college and get some special training. Do not randomly hand it to someone with no background. I will say to you that Supreme Court Justice William Maupin has been exceptionally cooperative in that area.
One of the things we normally do in this political process in dealing with the third branch of government is we make it permissive rather than mandatory because we cannot mandate to the third branch of government. When I saw this particular language saying, “the Supreme Court shall provide by court rule mandatory training,” I have a problem with that language, and I thought the Court would have a problem also. That is why I raised the question.
They may, but if they do, they certainly can indicate they are not going to follow it. I don’t want to get you in a fight, Senator Neal, with the Supreme Court. I can tell you there are a number of laws on our books right now that nobody follows, and I fully intend to see those laws are followed. A couple of them involve different branches of government. By setting forth what we intend to do and working with them, they said we will see that this is done. We are really taking a strong stand. I think that you have the authority. If there were a question of constitutionality you would get a letter from the LCB. I do not believe that you have gotten a letter regarding this. There could be some differences, some give and take. But, what do you do if you pass a law, today, and you have a law on your books already that directs the Supreme Court and the courts to do certain things, and they have not been doing them? I have talked to them, and they are certainly going to do them now, and I’m just the Governor.
I respect your concerns because we have three branches of government, and I do not want to tread on their toes or have you tread on mine. I think it is a real give and take. We are a small enough state that they are willing to help us in this case. I do not think any judge will object to this.
I saw Allen Earl the other day at the Reno airport and asked him where he was going and whether he was handling cases here. He said, “Absolutely not. But, I will tell you, I was assigned a construction defect case, and I have no knowledge in that area. So I am going to the Judicial College because I need that help. I need that experience.” That is all we are asking them to do. Here is a person with tremendous experience, let alone, one who is young and has come out of a traffic court situation. It is not good for our citizens, the legal profession or the judicial system. Senator Neal, and this is important for all of you to hear, one of the things that was said at the hearings was our judicial system is lacking in some of these training areas. I am only trying to help so that they will better understand. We cannot have one judge come into a situation under pain and suffering for the same incident, and we can find incidences that are extremely different from $100,000 to $800,000, and not understand what it means to have money left over to be put into economic awards. If there is any further information needed, I will certainly get with you and follow up. I will show you the communications that I have been dealing with the Supreme Court. Their response was outstanding.
I was just going to partially answer the question Senator Mathews asked. I believe section 11 dealing with some of the statute of limitation language does deal with health care providers and defines registered nurses. At least, in part of this, the nurse-midwife would be covered.
Governor Guinn, you stated in your remarks we need to reduce premiums paid by our health care providers, and later, you made a comment that this should help us lower our medical liability costs. I am curious as to whether this legislation will deliver that. Do we have any assurances we will have lower premiums because of the negotiations that have occurred? You have mentioned the insurance industry. We have not heard a lot from the particular players there. Have they come to the table in your conversations and said, “We will lower premiums if you do this?”
I think you might hear from them once they see the final bill. I can’t speak for other people, but I did meet with the insurance representatives. They indicated that if we passed a bill that had a $250,000 cap on pain and suffering, noneconomic issues, they would lower their premiums over a period of time pretty substantially. I was concerned because I wanted to know if they are going to lower their premiums when they just increased them in the last six months by 200 or 500 percent as opposed to when we did not have this cap and this problem. Now when we have this problem, will they take it back? The doctors and lawyers realize this, and I think, it will be. We will see a bit of movement, but we are a very small market. We only have about three and, maybe, one or two other small insurance companies. That is why this State had to initiate an insurance company. We are in the insurance business, and I would prefer we be out of it. Right now, for an OB/GYN, we are about $16,000 less than what those people are offering. We have to wait to see if we can draw them in. I looked at every thing that I could think of and wanting something in this bill that would be directly aligned to insurance companies. You cannot force people from the private sector to issue these. They can set underwriting standards higher, and then nobody can qualify for it. They can set their prices. They can come and go. They are not like a regulation under the PUC or utilities. We are at their mercy. If they do not come down, I will be bringing back some other recommendations to you as we move into the legislative session.
You mentioned the state plan and you would rather we not be in that business. Until you have some assurances of the movement you alluded to, are we going to continue to provide that insurance coverage?
Absolutely, it is our lifeline and has been for the last few months. I cannot even count the number of governors who have called saying, “How did you get an insurance company set up and going, get it approved and funded, and start taking doctors for coverage with not only forward concerns but with the past acts, in a month.” We just did what we had to do under emergency powers. We have hundreds of doctors. Let me give you an example of what we did. The company that had been insuring the medical school for eight years gave them a bid, and you were going to have to fund more than the $400,000 that I mentioned but much more than that big dollars. We gave them a bid, and the company came down to meet our bid. We said that is what we are here for, go to the private sector. The university was happy. The insurance company was happy, and I was blessed because I didn’t have to do that.
Governor, I appreciate your comments about the insurance companies. I hoped that would be one of your points, and we could do some insurance reform. I had planned to come with some amendments, but that will not be appropriate at this time. If things don’t work out as we are hoping they will, I would like to come back next session with some insurance reforms. I look forward to working with you to bring those back in February.
Absolutely, we should see some progress being made because I believe this bill will draw not just the people that are here, but people from outside. You see California has thousands of insurance companies. They have a pool of thousands of people and thousands of doctors. We are very small. The insurance company we have, today, has a great deal of potential. If the people don’t rise to the occasion from the private sector, I will bring you a recommendation that will show you how we can become self supported, with good prices for our doctors, and we don’t like to be in there. We privatized workers’ compensation, but when we have to do something like this, we are not paying any dividends, and we don’t have to pay taxes. If we get efficient and learn the business the way we should, we will take care of ourselves in terms of insurance, which means we will take care of our people.
And, we don’t have to have creative auditing practices either.
No, we will use the Legislative Counsel Bureau audit team.
Are there any other questions? Governor, we thank you for appearance, and we will proceed with our work.
The first order of business should be the adoption of the committee rules.
The rules are as follows:
1. All meetings shall be open to the public.
2. Eleven members constitute a quorum of the committee.
3. A majority of the members present is required to pass or reconsider a bill, budget, or resolution, or to take any other action.
4. Proponents and opponents of each specific proposal before the committee will receive uninterrupted equal but limited time to address the committee on the specific proposal under consideration.
5. Following presentations by proponents and opponents of each specific proposal, the members of the majority party and the members of the minority party will be given equal but limited time to ask questions and make statements about the specific proposal under consideration.
6. Matters not within the Governor’s Proclamation or not relevant to the specific topic under consideration will be ruled out of order.
7. There will be a period of public comment within specified limits on each specific proposal then under consideration following the questions and statements of the members of the committee.
8. Following public comment, the committee may vote on the specific proposal then under consideration. The committee will then proceed to consider the next specific proposal.
9. Smoking in the committee room is not allowed. All cellular phones and pagers must be turned off.
10. The Chairman will convene and adjourn each committee meeting. All recesses shall be at the call of the Chair.
11. Although witnesses are presumed to be under oath while testifying, the committee has the option of requiring a witness to be placed under oath.
I move to adopt the committee rules.
In the Committee of the Whole, a second to a motion is not necessary. You have a copy of the rules before you. Is there any discussion on the proposed rules? Hearing none, all in favor indicate, aye; any opposed?
The motion carried unanimously.
The rules will be utilized in the committee’s deliberations. A number of members of the committee have indicated a need to make disclosures. Let me begin by indicating the following: I am a shareholder in a law firm, which has represented both plaintiffs and defendants in medical malpractice cases. Personally, I have not represented anyone in a medical malpractice case in over ten years, but as a share holder in a law firm, I have a pecuniary interest in legislative measures that limit the amount of damages a plaintiff may recover in medical or dental malpractice actions because such measures could have a negative effect on revenues of any law firm. Because the detriment accruing to me as a result of the enactment of those measures is not greater than that accruing to any other share holder in a law firm that may represent a plaintiff in either medical or dental malpractice action, I am advised the ethics law allows me to vote and participate fully in the consideration of such measures.
In addition, a registered lobbyist who represents certain medical groups on the issue of medical malpractice rents office space from my law firm. Other than the fixed amount this lobbyist pays for rent, the firm does not receive any other revenue from him, including no revenue from his representation of medical groups. The amount of money a firm receives from the lobbyist for rent does not create a pecuniary interest or commitment in a private capacity to the lobbyist on the part of the firm. The amount of rent and payment of the firm is not contingent on whom the lobbyist represents or on the issues on which he lobbies, and I am advised the ethics law allows me to vote on and participate fully in the consideration of measures relating to medical and dental malpractice.
I am also a member of the board of directors and a shareholder of Sierra Health Services, a publicly traded company, that has several subsidiaries, which include a manage care company, a health and life company, and medical group. As a shareholder, I would have a pecuniary interest in and a commitment in the private capacity to the company regarding legislative measures that limit the amount of damages a plaintiff may recover in any such actions because such actions could limit the liability of the subsidiary. I am advised that because the benefit accruing to me is a result of the enactment of those measures is not greater than that accruing to any other shareholder in a company that includes such subsidiaries’ medical group, health and life company, etcetera, the ethics law does allow me to vote on and participate fully in the consideration of those measures. Pursuant to the appropriate statute, I have filed a disclosure in this nature with the Director of the Legislative Counsel Bureau.
Are there any other committee members who need to make a disclosure?
I would also like to make a disclosure, and it will be filed with the Director of the Legislative Counsel Bureau. I have a son who is a radiologist, a son who is a podiatrist, a son who is finishing his neurosurgery residency, a daughter in physical therapy, a daughter in nursing school, a son in dental school and a black sheep in the family finishing law school. As a dentist, I have a pecuniary interest in legislative measures that would limit my potential personal liability for dental malpractice, however, because the benefit accruing to me or to any members of my family as a result of the enactment of those measures is not greater than that accruing to any other health professional the ethics laws me to vote on and participate fully in the consideration of those measures.
I too have to disclose, I am a managing partner in two companies, Mirror Image Group, CML and LLC. These two groups are holding companies for real estate. I do have partners that are physicians as well as attorneys. My wife is also the bookkeeper, and I get paid for my services. I will give a response to the Legislative Counsel Bureau so that it will be on file.
I did not realize that I might have a conflict until Senator Rawson started mentioning his children. I realized that I should disclose the fact that I have a daughter who is in medical practice, but she doesn’t practice here. I also have a daughter who is graduating from law school and will be practicing here. It has me torn between two interest groups that I have to make up my mind as to which way I should go. I balance myself.
I am a licensed group-health insurance broker. The subject we are discussing is a casualty insurance product. I do not sell it and am not licensed to sell it. The clients that I represent do not sell it. I am not certain whether I have a conflict, but I will declare the position I have in the insurance business because some people assume all insurance brokers can sell all products. I will talk to the Director and see if I need to file anything in writing with the Legislative Counsel Bureau.
I apologize for not having any prepared remarks. I will disclose, I am a partner in a law firm, which occasionally does trial work in the area of medical malpractice on the defense side. I am informed and believe, thereon, included, in part, this disclosure, the fact that the effect of the operations of that firm are no different than any other firm in the State.
I am a licensed registered nurse. I have never practiced as a midwife.
I have a practical disclosure. I have been an ambulance driver in Douglas County for 56 years.
My stepson is an attorney and practices law in that field.
There are 21 Senators who comprise the Committee of the Whole and who are present for this procedure. The first topic we are going to discuss is to establish limits on the amount of noneconomic damages available in medical malpractice cases. If time permits, we will also consider the subject of limiting liability for acts occurring in a governmental or nonprofit center for treatment of trauma. When the agendas were prepared, we were of the impression that there were major differences between those who were negotiating on these issues. It appears to the committee that, at this time, there may be a coming together on these issues. So, instead of favoring the limits or opposing the limits, I am going to invite those who are representatives of the groups that have been in these negotiations to come forward. We will give you an opportunity to make a presentation, uninterrupted. It is now 4:20 p.m. I am going to ask those of you that are here how much time you feel would be reasonable to hear this portion of the issue. Will someone give us an indication of how much time would be needed?
Dean Hardy (Nevada Trial Lawyers Association):
We do have a presentation on the issue of caps. Our presentation probably would not take longer than 10 to 12 minutes. We have a video we would like to present.
Who is here representing the medical group or health providers, anyone? I want to make certain everyone who has to say something has the time. I also have a list of people who indicated they want to testify. Has everyone who wishes to testify signed in? While we are waiting, let me introduce our counsel, from the Legal Division, Brad Wilkinson, and Scott Young is from our Research Division. Both are familiar with this bill and this subject. Both have served the Legislature and the appropriate committees for many sessions on these particular issues. We are fortunate to have them. Also, Jan Needham, Deputy Legal Counsel, is available. They are all available for any questions you might have. Mr. Wilkinson, at this point, give us an overview of what the bill provides and point to the sections on noneconomic damages.
Bradley A. Wilkinson (Principal Deputy Legislative Counsel):
The provisions pertaining to caps on noneconomic damages are contained in sections 3, 4 and 5 of the bill. Section 5 establishes a general limitation on the amount of noneconomic damages that can be awarded to a plaintiff, which is $350,000. The exceptions to the $350,000 cap are set forth is subsection 3 and are cases involving: organic brain damage; hemaplegia, paraplegia or quadriplegia; death of a parent, spouse or child; total blindness; actual physical loss of a limb, including a foot or hand; permanent loss or damage to a reproductive organ resulting in sterility; a case in which the conduct of the defendant is determined to constitute gross malpractice; or a case in which, following return of a verdict by the jury, the court determines, by clear and convincing evidence that an award in excess of $350,000 for noneconomic damages is justified under the circumstances. In those circumstances, in which there is an exception to the cap, the plaintiff is able to recover whichever is greater, $350,000 or the amount of money remaining under the malpractice insurance policy limit of the defendant after economic damages are subtracted from that amount. Further, irrespective of the number of individual plaintiffs in the action, no single defendant can be held liable for noneconomic damages in the aggregate, in excess of the policy limits of the defendant.
In section 18, there is a requirement that a licensed physician shall not practice in the State unless that physician maintains professional liability insurance in the amount of $1 million per person and not less than $3 million per occurrence, is that correct?
That is correct. Sections 25 and 27 contain the same requirement pertaining to dentists and osteopathic physicians.
Are there any representatives of medical or health provider groups? I am trying to establish some time for your presentations since we do not have a situation where there is an opposition to a cap or support for a cap. How much time is reasonable for a presentation by both of these groups? I want to accommodate you. Are you representing the lawyers group?
Our presentation will be between 30 and 45 minutes.
How about the medical group?
Mark Brown, M.D. (Chairman of the Nevada Mutual Insurance Company):
We will need about 15 or 20 minutes to give a general overview.
We will allow each of you 45 minutes. I would like to have both groups seated at the table to make their presentations without interruption. Then we will have questions. It is now 4:30 p.m. We will allow until 6:00 p.m. if you need that much time to make your presentation on this issue. Are there any others who wish to be involved in this original presentation?
There are other presenters from the Nevada Trial Lawyers Association, including several victims of medical malpractice who want to testify.
Will all that fit within the time allowed?
They will all fit within our 45 minutes.
Are there some others outside these groups who wish to participate at this point in time?
We would like approximately 15 minutes to make a presentation from the insurance company perspective.
Is that on this issue?
Yes, on this issue.
You need 15 minutes, separate and apart from the rest of the presenters?
Our issue will be separate.
With that in mind, I will allow up until 6:00 p.m. for presentations from all of you. Will that be acceptable? What order do you think would suit your purposes?
We are prepared at this point.
There will be 1 hour and 15 minutes, divided between the presenters. Please, be as precise as possible.
Could we hear from the insurance person? Because those individuals have not been heard.
Does everyone who wishes to make a presentation have a copy of Senate Bill No. 2? Everyone who appears before the committee, please indicate your name, spelling it if necessary, and your title or affiliation. Please remain after your presentation for any questions that may arise. Testimony before this committee is deemed to be under oath, even though we may not require anyone to take an oath. Please be mindful of your presentation in that regard.
Daniel S. McBride, M.D. (Physician, Chairman, Nevada Mutual Insurance Company)
I am here on behalf of the Nevada Mutual Insurance Company and am member of the Physicians Liability Task Force and represent the American College of Surgeons as the president of the Nevada chapter. I have been intimately involved in these negotiations since the original appearance before the Insurance Commissioner on March 4, 2002. Seated next to me is Charles Wallace.
The last thing I thought I would be doing is appearing on behalf of an insurance company. We are here only as a result of this medical crisis. Our company was founded in response to a lack of affordable coverage that all physicians have faced. Myself, personally, and the group were insured by the same insurance company. Our insurance was being terminated in June, and we found ourselves in the same predicament as most of the physicians in Clark County. The insurance premiums quoted to us were double and triple the cost of our previous coverage.
This insurance company was founded by doctors, run by doctors and is for the benefit of doctors. It was not founded to return profits to any company. It is a totally non-profit organization. It is never to be sold as the previous mutual insurance company had been to the St. Paul Company, which has led to some of the problems we have now. It was also offered to provide some long-term stability the Governor’s plan does not provide or was intended to provide. We are here to try to provide a service for the physicians that would be around in the future and provide stability in the market place.
As you are aware, there was not a flood of insurance companies coming to write policies in this State. The soil in Nevada for the insurance industry was as barren as it gets. What we have done is provide coverage for over 300 Nevada physicians. We have policies in place for reinsurance, plans for long-term growth as well as additional coverage for our physicians. We have no record of underwriting or manipulating the market in this State. We are here solely to provide coverage for physicians and provide their stability, but to do that, we need long-term medical liability insurance reform.
Charles (Chip) Wallace (Communications Director/Cofounder, Nevada Mutual Insurance Company):
I represent over 300 doctors. Three hospital chains have pledged almost $3 million to get this company going. The reinsurance we have in place provides for a second financial stability and viability in the market place and is quite necessary. We put this program together with the virtues Dr. McBride stated, such as, non-profit status and the ideology that will keep this company in place. That is only part of the equation. We are left with some questions. Does this bill meet the needs of the insurers who gave their sworn testimony on March 4, 2002? The insurance industry has already addressed the governing bodies of the State of Nevada. All we need to do is read their testimony. What the insurance companies stated was that MICRA, the California laws, would bring them back into the insurance industry marketplace. Is this bill short of MICRA? Unfortunately, I am not an expert and have not surveyed this question. The bottom line and answer to that question will determine if these private companies come back into this State.
As a citizen, and I think we should recognize all the opinions and concerns, I ask you, are the patients protected under this bill? Can you say this bill will reduce the cost of premiums? If not, we still have a problem. Will this bill reduce premiums by 5 percent because we watered it down, made changes that may well be necessary, but what is the offset going to be? Looking at this in pragmatic terms, is that going to be 5 percent? If you take a physician who was paying a premium of $30,000 a year and is now paying $68,000 a year, which is moderate, and reduce their premium by 5 percent, are we kidding ourselves into thinking we fooled them as well? Are they going to continue practicing medicine in Nevada? We have seen far too many specialist physicians, who serve an acute patient demographic, leave this community. It is paramount you ask those questions. Do trauma surgeons have liability protection or liability equality at the trauma center? If the answer is yes to the trauma center, what about the patient who shows up at the emergency room (ER)? The patient in the ER is in the same condition as the one in the trauma center. Those are hard questions that need to be asked.
On page 5, I have briefly reviewed the joint and several liability containment, I do not believe it goes far enough.
What subsection are you referring to?
The complete language referring to joint and several liability on page 5.
Please confine your remarks to the caps we are talking about. This part of the discussion is on limiting the amount of noneconomic damages. When we take up that issue, you will be welcome to comment on that topic, but at present we are trying to keep focused on this issue.
I will withdraw at this time and speak to the issue of joint and several liability at another time.
What about the sections on establishing limits on the amount of noneconomic damages or governmental or nonprofit treatment centers?
The dollar amounts are absolutely tied to the language such as joint and several liability that leaves gross exposure; therefore, I would not be able to comment on that.
You are not commenting on that part of it?
Arbitrarily, the cap is fine. What is the language within this document that protects those values, that protects the solvency of an insurance company or the exposure of liability of any one physician or group of physicians?
I am not clear on your position. The bill before us has a $350,000 cap proposed on noneconomic damages, which could be exceeded in those cases in subsection 3, and are outlined where there are certain injuries such as; organic brain damage, paraplegia, quadriplegia or a case in which the defendant conduct is determined to constitute gross malpractice or where the jury gives an award higher and the court determines the clear and convincing evidence the amount for economic damages should be higher. Over all, there is a cap of the policy limits. Are you supporting the cap or proposing a change in that language.
Without having reviewed the document, I will give a conservative answer. If what is contained in this bill, in the section you are questioning, is consistent with the testimony of the insurers, the testimony from March 4, then I would support it.
Senator, may I ask you a question in reference to your questions on the caps? There was a provision regarding caps on services provided voluntarily, in a non-profit facility. You raised the point in your earlier remarks, and I wanted to ask you a question.
It is not addressed in the bill. I asked the question whether it had been considered. A situation whether a doctor on a pro-bono basis provides some service in a facility, for indigents, for example, and the Governor responded, it was not in the bill, but he may add it to the “call.”
I would encourage you, as a member of this panel, to please put that into a bill draft because I would like to speak to the issue at a future point.
We do not have the authority at this time since it is not in the proclamation.
When the California Supreme Court considered the constitutionality of the cap of $250,000, one of the things they looked at was the legislative intent, and that is what we are doing with this testimony. We are laying down legislative intent, so we need to hear this. The Supreme Court in upholding the validity of the caps said, there was a rational relationship between the legislation and the state interest in the courts restraining and sometimes reducing medical malpractice insurance premiums. The court in California was interested in that. I did not hear but, at some point I want to hear, if not from you, gentlemen, something in this bill saying we are going to see insurance premiums restrained or reduced. The Governor addressed that a little earlier.
In the spirit of Senator Care’s question, are you the actuarial expert who can answer actuarial questions or is there someone with you, today, who might be able to answer questions relative to caps?
No, the corporate line I was prepared to deliver was this. Were MICRA presented 100 percent, today, then the actuaries of this company and the other insurers doing business in this State would applaud and could attest to the fact that there would be a sharp reduction in malpractice premiums for physicians in the State of Nevada.
I would like these two gentlemen to get an answer to the following two questions. One is Senator Care’s question. What are the premiums for physicians that practice in a trauma center in the areas of OB/GYN? Two, if this bill becomes law with a $350,000 cap on noneconomic damages with the exceptions that would then go to the policy limits, should a plaintiff in a case be willing to accept $50,000 to settle the suit, instantly, and the doctor agrees to that, but you as the insurance carrier say no, then it ends up going to litigation, and you lose to the caps. How do you actuarially account for the difference when you rate that physician at the next premium level?
We will have them follow up.
I have a question on page 5, paragraph (h). How does the court determine by clear and convincing evidence that an award in excess of $350,000 for noneconomic damages is justified? Does that leave the door open for the attorney to make a case to the judge that this case warrants more than the $350,000 cap? Is that per victim or per instance if there are four victims in a wrongful death suit?
When I brought up page 5, I was referring to the ambiguities in this law from an insurers and business perspective. We are looking at removing these uncertainties. Already there are a few. Therefore, without a concrete answer to the question, we are still in the same boat.
I believe counsel has the answer to the question. It is per victim?
Yes, that is correct. It is $350, 000 per victim.
Does counsel have an idea of how the court determines the clear and convincing evidence to warrant awarding an excess of $350,000.
The bill, as it is currently drafted, does not provide a specific procedure by which that determination would be made following the verdict of the jury. Unless the jury returned a verdict for a noneconomic damage in excess of the cap amount, the judge would not be in a position to do that in any case. But there is no specific provisions saying how that procedure is going to take place.
Let me suggest, on that issue, we hear the presentation from the legal and medical groups. After which we can take those questions. We are going to allow 40 minutes for the presentation from the legal profession representatives and 40 minutes from the medical profession. Is that adequate for your purposes?
I would think so. While we are preparing for the video, I would like to introduce Bill Bradley, past president of the Nevada Trial Lawyers Association and current co-chair of our political action committee, and John Echeverria, a lawyer in both the State of Nevada and State of California who practices in this arena.
You might mention that Mr. Echeverria’s father was a former member of the Senate in Nevada.
Yes, he was a distinguished member and was a lot more than just a member. We also have several victims who will be testifying later.
Are there any people who have been left out of this bill perhaps through lack of representation or some other way as we found out from an e-mail sent from a nurse-midwife. We need to know that in your presentation. Did I make myself clear?
Your question was clear. Because the screening panel covered doctors and osteopathic physicians, that is what this bill applies to as well as hospitals.
Video presentation. The following is text of the video is provided by Fierro Communications, Inc., Long Format, Citizens for Justice, Trt:8:15, 7.27.02, the case of Mike Nostro.
He was the guidance counselor at Brindley Middle School and far the favorite. You know, both staff and students alike just loved this man, just an incredible person. I mean loved by everybody and such a dynamic human being. It was a needle biopsy that was supposed to be performed. He was terrified. He was complaining about the pain in his chest, the pressure. He wasn’t able to breathe. He just sounded terrified. The doctors response, and I will never forget this as long as I live, was “suck it up Mike, we’re almost done.” The doctor had punctured his aorta several times, and he couldn’t breathe. I was right outside the door listening to my husband die.
Text of the case of Kevin O’Neill
He was completely full term. He was 8 pounds, 9 ounces. He was a big boy when he was born, so yeah he was very healthy. I asked my doctor if I could have a c-section, and he said, no. He just wanted to try and induce labor. He didn’t even listen to what I had to say. He just said, no, he’d like to try to induce labor. I didn’t even know he wasn’t going to be there. He wasn’t there, once, the entire time I was in labor.
We were going to bring Kevin home to his already-made room, and everything was all done. We had all his stuff painted. His bassinet was ready to go. Everything was done just like the other children. Um, we didn’t expect this. There was no indication of something was going to be like this. Kevin was perfectly normal. There was nothing wrong with him.
When he was born, he was not breathing. He was pretty, I mean, low apscar scores. He had had a seizure because of lack of oxygen.
I knew then there were going to be severe problems, and I thought he was dead.
Text of the case of Diane Meyer
Two weeks before I went into the hospital, I’d had a complete physical, and I was perfectly fine. Everything was good. I mean, totally. I love being outside, and we love going for walks, climbing on paths and marching around at Red Rock. Anywhere you could take me, I wanted to go, and still do.
The first two adventures in that hospital, just Richter-scale bad. They just . . . And you know the sad thing is that we were the only people in the emergency room waiting. I laid there, and I was, at that point, so incredibly sick and so incredibly ill, I couldn’t get the attention of anyone to take care of me. They said you have a tiny kidney stone, take this pin medicine and go home. A week and a half later, I’m so sick I don’t have legs anymore. Um, at one point, they even considered taking my hands, and it was, thank God, my daughter and son and my husband just refused to let them do that. So for the lack of one simple little prescription, I no longer have legs.
I never thought he would die. I never thought that for a second. I still wake up and can’t believe its real.
There are catastrophic cases that change your life and change your life and disfigure you forever, change every bit of it. It’ll never come back. It won’t. I hope I live 30 more years, and yet, I’m always going to be the same, nothing is going to grow legs back for me. Nothing is going to give me my independence.
There are a lot of great doctors, but I mean the decision that my doctor made, Kevin is going to have to pay for, for the rest of his life.
Originally, I tried to file a complaint with the Nevada State Board of Medical Examiners, and this is the board that licenses the doctors. They are not even policing their own physicians. Physicians are not policing colleagues. There are repeat offenders everywhere, and it so hard for me to have any trust in any doctor of any kind today.
It’s just so hard to put a pretty outfit on and put my legs on, and I try to stand there and look just the way I used to look. I can never stand up straight. I can’t stand correctly. There is nothing about me that looks the way I used to look. My whole life has changed, and it’s just not going to change back. It’s my job to make you comfortable around me because now I feel like a freak. I feel like a freak. It’s really tough. It’s really tough.
Having a child with special needs has changed my entire family.
Not one doctor in Nevada has ever lost his home, his car because of something like this. The insurance companies paid these malpractice claims, not the doctors, out of their personal bank accounts. So what have they lost?
We both almost died because of the carelessness of him and the hospital.
If there is any cap on a malpractice case, the incidents of malpractice will rise. They’ll feel more protected, more comfortable. More mistakes will be made. Lives will be lost, I know it. In my heart, I know it.
I deserve the right to be heard by a jury. I deserve that. I deserve that. They need to hear what happened to me. And it will stop a doctor and make him be just a dot more aware of what he’s doing and how he’s affecting our lives for the rest of our lives.
There will be less accountability if malpractice is capped at $250,000. That will be nothing to them, nothing.
I think it’s ridiculous because I think doctors and hospitals or anyone who makes the mistake should be held responsible for that mistake.
Your whole life is rearranged because of an accident that happened, someone’s lack of concern for you in the hospital. That’s what happened to me.
They don’t know how much he suffers, and I don’t know how they can put a price on that.
How the $250,000 MICRA cap affected one California Victim’s lawsuit. David L.’s California physician was found guilty of malpractice for not providing the proper vaccine. As a result of that malpractice, David’s hand and legs were amputated. Under MICRA, David was compensated for his loss of income. The insurance pays for the prosthetic legs he walks on, for the hooks he uses in place of hands. For his pain and suffering, David receives less than $12 per day because of the $250,000 cap.
End of video presentation.
The video was brought here not designed to pull at anyone’s heartstrings. I tell you that with all sincerity because of what is occurring in this field relative to limitations on people’s access to our justice system. It breaks my heart as a trial lawyer when people’s access to the justice system is reduced or diminished. Because we are not talking about technicalities, we are talking about people’s access to have a jury hear their case and make a decision based upon the facts of that case, which are a constitutional guarantee and not a technicality. I have lived in Nevada for over 31 years. I went to Clark High School and UNLV. If I thought what I do for a living compromised people’s access to health care or compromised the physician’s opportunity to practice medicine, I would change what I do.
I am not convinced the data supports that malpractice premium increases are being driven by the civil justice system. The number of cases has risen with the population growth at the same level. The size of cases has risen as well. You have heard that testimony and read it in the newspaper. The size of those cases have risen for several reasons part of which has to do with health care costs. Again, we have information that does not support that health care cost increases are being driven by the civil justice system. What occurred at the end of calendar year, 2001, and the beginning of this year is simple, there was an economic downturn. We had one insurance company that had 60 percent of the market share of malpractice insurance in southern Nevada that pulled out of the business across the United States, including those states that have an active limitation on people’s access to justice―what we euphemistically calling caps. This company pulled out across the United States for what we think were business decisions based upon their lack of investment return. This company did not achieve a 60 percent market share of underwriting medical malpractice in southern Nevada except for one very good reason; they kept their malpractice rates down. Their malpractice rates only rose 5.4 percent between 1994 and 2001. They ignored their own underwriting criteria. They insured every doctor that filled out an application, some of which had double digit claims against them. Insurance companies are certainly in the business to earn money, and we do not begrudge them that. When those insurance company practices impact people’s ability to have appropriate health care, drive them out of the market, drive their competitors out of the market and then blame the justice system, we are asking for one simple thing to show us the data. We have concerns about this. Please show us the support.
You have heard, time and again, the answer to this problem, and I do not call it a crisis. We have a problem that the insurance industry calls a crisis because they call it a crisis. That is the same industry whose auditors, Arthur Anderson, audited those same multi-national corporations that are now in bankruptcy. It is important to note one aspect of this, on Friday, in the State of California that has all the answers for this problem, two of the larger insurers, NORCAL and Medical Insurance Exchange of California (MIEC), asked for double-digit rate increases for medical malpractice insurance. NORCAL asked for a 13 percent rate increase, and MIEC asked for a 10 percent increase. Is that because they need more tort reform in California? I think not. I think it is do to economic conditions, business determinations, and it is not being driven by the civil justice system. I cannot tell you how important this issue is to the State of Nevada. It is extremely important. I cannot tell you that we should ignore a very serious problem. What I can tell you is, if they are asking for insurance rate increases in California on Friday and if you think they did not know this Special Session was going to take place, today, I think we are all wrong. The reason will be answered in the testimony you will hear all through this bill. The answer is not limiting people’s access or opportunity to go to our justice system. This is a multi-faceted problem dealing with doctors’ reimbursement rates, the economy and a myriad of other problems, and it will not be resolved with a simple, quick fix that limits people’s access to justice.
We have some people who would like to testify on the issue of caps. I like the questions that have been asked here, today, and you are going to do a responsible job because I have participated in this process for some time. Do not let the answer to Senator’s Care’s and Senator Townsend’s questions go unanswered. Because, if you enact this legislation, which includes the issue of caps, and we see insurance companies asking for increase in rates, as occurred in California on Friday, then are we going to be here in February, 2003, or 2005 or 2007 seeking more limits on people’s access to justice? Our system is being looked at by the world as the cornerstone of our democracy. Do not take what you are doing lightly for you are trampling on sacred documents. Those documents are our United States Constitution and Nevada State Constitution that preserves the right to a trial by jury. Our forefathers understood that to be the best system and remains, 200-plus years later, the best system of justice ever derived. Please do not take this lightly because we are limiting people’s access to justice. I understand the political realities as you do. When you eliminate, reduce, diminish an opportunity to seek redress through our courts, you are trampling on the Constitution, and that is a civil guarantee that breaks my heart almost as much as that video.
John Echeverria (Attorney, Nevada Trial Lawyers Association):
I had the privilege of meeting quite a number of you last year at the legislative session when you honored my father. Little did I know then I would be back here in the special session addressing you on other issues. I was born in Reno and lived there until I decided to go to San Francisco to practice law. I returned to Reno last summer.
This issue has arisen, and I have been asked to talk to you about the impact caps have played in California. I have spent my career representing injured people as did my father for a large part of his career. I am doing it in both Nevada and California. I have litigated under both legal systems and under the limitations that have been placed in California and have seen the effect of limitations on economic damages. As a lawyer, representing injured persons, I am unalterably opposed to the caps on any noneconomic or economic damages. I, as well as many other members of the NTLA (Nevada Trial Lawyers Association) and members of this legislative body, belong to an organization called ABTA (American Board of Trial Advocates) which is a group of lawyers, nationwide, who are invited to belong to the group, composed of insurance defense lawyers and plaintiff lawyers. It is one of the most highly respected groups of lawyers who represent litigants in this field in the country. The ABTA’s position is that they are on both sides of this fence and are unalterably opposed to the limitation on the recovery of noneconomic damages in any form. The guiding principal of the organization is, and we firmly believe in, the right of a trial by jury. Limitations on damages, limitations on access to the courts, limitations on what are commonly termed as tort reform, deny litigants the right to the fundamental constitutional right of a trial by jury on all issues.
Limitations on the amount of money a victim of medical negligence can recover have a very pernicious effect. Its stated purpose, without proof of these limitations, is to make insurance affordable. I have been practicing under the system in California for over 25 years since MICRA was enacted and have not seen a significant effect in insurance premiums nor, have I heard any testimony that limiting someone’s right to general damages will lower premiums. To me what is more important is, doctors have taken the position they want more affordable insurance. The purpose of these proposals is apparently to create affordable insurance, which is something beyond just reducing premiums from where they are today. I urge you in considering what I am going to discuss as the implication and impingement on the victims of medical negligence rights to access to the court that you ask for and receive very committed, documented assurances that enactments such as you are considering, which change people’s rights and limit their amounts of recovery will accomplish the goal of making health care accessible to Nevadans.
In my opinion the real reason these types of limitations are asked for in these crises is to give an advantage to the insurance industry in situations of medical negligence. I say that because of my experience in watching how litigation arises, how it is pursued, how it is defended, and what happens. Limitations on noneconomic damages discriminate against those people that do not have large economic damages such as a housewife whose injured and has no earnings loss in the open market place, who has healthcare covered by insurance, who may have lost both of her legs, fingers and parts of her hands and has little or no economic damage. In that situation the person’s recovery is $250,000, which is discriminatory to me against someone else in a similar situation but may have some large economic damages. The injury is the same and the suffering is the same. In my experience and practice in representing people under the California system it drives a great number of victims into bankruptcy because part of the concept of general damages is to compensate them for those things for which they are not otherwise out of pocket. Economic damage compensates them for loss of earnings, their medical bills not covered by insurance under the California system, and basically tries to make them whole again in terms of their out of pocket losses but the limitations on general damages does nothing to help them deal with their issues and other aspects of their life. To that extent those economic damages do not cover many of the tangibles and victims very often have to go into bankruptcy or are placed on the limitations of the welfare system of our country. Then we have transferred the medical negligent actor to the victim and ultimately to the taxpayer, which is a very pernicious act. Before you begin enacting legislation like this you should assure yourselves that it will accomplish the goal of getting affordable insurance.
More importantly, what a cap on limitations of damages does is deny access to the courtrooms. There are economic realities and practicalities in the handling of a medical negligence case. The insurance industry knows it and that is why they seek and pursue these caps on limitations. Cases like this cannot be handled for anything under less than $30,000, $50,000, $60,000 or $70,000 and in a complex case it would not be unusual for us on behalf of our clients to spend $100,000. That money if we are going to pursue our client’s rights in a very egregious case such as I have previously described becomes unaffordable because the cases are so expensive to pursue, and the risk of recovery or loss makes it almost impossible. In my experience and in my office on very many unfortunate occasions I have had to tell people because of the limitations on recovery in California we cannot undertake your case because economically it is not viable and justified. Make no mistake, in my view that is the reason why caps are requested. It destroys the ability of a large segment of our population and victims, I have seen this and watched it since 1976 when MICRA came into California, and you cannot understand the number of times I tell this to people who I believe have been wronged but who cannot get redress in the court system which creates an anger because they believe in our system we all have the right to justice and they would if it were not limited. That is what caps do and that is the most pernicious effect of caps on damages in a large number of cases.
In some respects what you are considering is a very important issue and is done under extreme pressure. I recognize and understand the pressure. It is the same thing we went through in California. The same kind of urgency and the same pressures but we have some experience in looking back and seeing whether what is being requested really works. In my view they do not, they deny access. I understand the political realities but I would suggest before you make a decision to limit people’s access, deny them compensation for general damages or limit their recovery you get some assurance that it will produce the anticipated benefit. I have seen it work to the disadvantage of many in California.
J. R. Crockett, Jr. (Attorney, Nevada Trial Lawyers Association):
I have lived in Nevada for 50 years. My career has been exclusively devoted to representing injured people. There have been some great questions posed by Senators Wiener, Care, and Townsend that are the focus of the subject I will discuss―constitutionality of the law. We are a government of the people, by the people and for the people. We are not a government of the insurance industry, by the insurance industry and for the insurance industry, and I hope we will not become so. Whenever you pass a law that impairs an individual’s constitutional rights where the clear and unequivocal body of law in our country says that if you are going to impair individual rights, there must be a rational relationship between what you are doing to impair their rights and the public good you are attempting to accomplish. If you cannot establish a rational relationship and you have not used the least, drastic means to accomplish you goal, then the law, however well intentioned, is unconstitutional and will be stricken by the courts. In terms of its rational relationship, we distributed a publication titled The Reality About Medical Malpractice Law to the members of the Legislature. The first graph on page 2 shows the impact tort reform has had on insurance premiums in the United States.
The graph shows the 2001 insurance rates for states without caps on damages for a general surgeon were $26,144, and the rates in states with caps on damages were $26,746 a year. It was $600 a year more expensive to buy medical malpractice insurance in states with caps on damages―caps you are being asked to enact today. What is the real connection between rates and the insurance industry?
We have distributed two handouts, which are extremely important. Both carry the NTLA stamp in the corner for identification. One of them is a federal court decision. As you will see, the federal court said it is not a matter of excessive verdicts that are causing the problem; it is the cause of excessive malpractice. The court said the absurdity of the situation that the insurance companies are asking for these rate increases when in fact they are losing money on Wall Street would be analogous to a car manufacturer requesting and receiving a limitation on liability because of low sales in a previous year.
The second page quotes insurance industry representatives. Donald J. Zuke, who is the insurance chief executive for a California medical malpractice insurance company, says, ”I don’t like to hear insurance-company executives say it is the tort injury-law system. It is self inflicted.” Sherman Joyce, who is the president of the American Tort Reform Association, says, “we would not tell you or anyone that the reason to pass tort reform would be to reduce insurance rates.” Victor Schwartz, a partner with Schuck, Hardy and Bacon, a leading tort-reform advocate, said, “Many tort-reform advocates do not contend that restricting litigation will lower insurance rates. I have never said that in 30 years.” And, as final proof of the fact the insurance industry is the culprit, Governor Guinn, who testified here, instructed the attorneys for the State of Nevada to sue the St. Paul Insurance Company for creating the medical malpractice insurance crisis in the State of Nevada. Governor Guinn said the St. Paul Insurance Company under priced the market. They gave illegal kickbacks to the state medical association, and they have the premiums dangerously low, below acceptable rates. Govern Guinn, on behalf of the State of Nevada, sued St. Paul saying they caused the crisis. Congress has instructed the General Accounting Office to investigate the accounting practices of the insurance industry to see if they created this insurance crisis. There has to be a connection between the two. That great invisible giant, the insurance companies, will not even come and tell you, if you do this, we will do that. In failing to do that, they are building a constitutional infirmity into this law, therefore, making your process a futile act of passing a law that turns out to be unconstitutional. Allow us to continue to live in a state that is governed of, by and for the people and not of, by and for the insurance industry. Thank you.
James De Roche (Attorney):
I am not only a lawyer but also a parent of a child who was subjected to medical malpractice. The reason I have been asked to come here by the NTLA is because I find myself in a unique situation of not being able to retain a lawyer to represent my family because of the malpractice to my son. I will not go into the details of the malpractice, but the issue is that he was a “special needs” child. It is a wrongful death claim, and it is not worth a lawyer’s time in the State of California to represent our interests. The reason is that the cost of a medical malpractice case―the expert laden aspect of it, in conjunction with the fact that the cases are often “defensed,” juries tend to believe doctors because they are technical and tend to be above a jury’s understanding which is why so many experts are needed. A “special needs” child is not going to shower his parents with money when they enter their old age so the value of the case is just not worth a lawyer’s time. I have talked to several lawyers about it, but they all say the same thing, and I can fully appreciate what they are saying. The California statute has a lot of problems because of the cap, and I am pursuing this in the courts. My first amendment right is being infringed upon. The United States Supreme Court and the California Supreme Court has said that as citizens of this country, we have the right to petition the three branches of government. My right to petition the Legislature is being exercised right now but also to exercise the Executive branch and the Judicial branch and that includes “a meaningful right to be heard,” which in a complex litigation matter means a right to counsel.
I heard one Senator talk about a California Supreme Court case. They did not address that particular issue. In fact, Justice Kaus specifically mentioned it but said there was no evidence put forth at the trial court level so they were not going to consider it. As a consequence, I think you should be very wary of setting a fixed cap. A fixed cap reminds me of Sybil in Greek mythology. There was a beautiful young woman who the god Apollo, or someone, was smitten by her, and he came down and said, “I will grant you any wish you want.” She said, “I want to live forever.” Apollo immediately knew that was a mistake because she did not say, “I want to live as a young, beautiful woman forever.” As the decades and years rolled on, she became more and more decrepit. The problem with MICRA, at the $250,000 cap, is that times change. There is no provision for allowing the cap to fluctuate based upon the economy, lawyers rates or the standard of living.
As a consequence, the cap, today, based upon the consumer index, is about $84,000. You can imagine what that is worth. As a consequence, I feel that as time has gone on, the cap has become more and more restrictive in 2002 dollars to where it is a first amendment issue. It is unreasonable, and there are a lot of people who are not getting access to the court for their grievances. Most doctors try their best, even the bad ones try their best, but the point is the bad ones are out there and do commit malpractice. When that happens, there needs to be redress, not just in the civil cases but also before the license board, so that the bad are separated from the good.
Robert McBeath, M.D. (Nevada Medical Liability Physicians Task Force):
I graduated from Clark High School and obtained my undergraduate degree at UNR and my medical degree at the University of Nevada School of Medicine. After a six year Nevada residency, I returned to Las Vegas in 1994 to practice.
This issue ultimately requires us to reevaluate our medical-injury compensation system. We seek to create a new balance between the need to protect the injured patient in an act of medical negligence with the ability of our community to have access to quality, stable medical care. In February of this year, in response to the most significant threat to the stability of our community’s health care system that we have seen, nine separate physicians’ organizations including the Clark County OB/GYN Society, the Clark County Medical Society, the American College of Surgeons, the American College of Emergency Room Physicians, the Nevada Orthopedic Society, the American College of Physicians in Internal Medicine, Physicians of Nevada, the Nevada State Medical Association and also our liaison came together to form the Nevada Medical Liability Physicians Task Force. Through this organization, the physicians have worked hard to find a solution to reform our severely broken medical-injury compensation system based on California’s MICRA legislation. Our position is clear. Our patients and people of our community are at significant risk of losing access to their physicians and other vital health care services.
In 1975, Nevada and California were both experiencing a crisis in their medical liability in health care systems. Our neighbor state enacted meaningful reforms called MICRA while Nevada created the screening panel. Since that time, California has enjoyed a stable medical-injury compensation system providing them the foundation to build a world-class health care system. We are now experiencing our fourth malpractice crisis in 27 years. Our current system is severely ill, but we have the diagnosis, and we know the cure. In the last 2 years, alone, jury awards have increased by over 800 percent, and over the last 15 years, the average, closed-claim costs have increase by 630 percent far outpacing all other medical or wage inflations by more than a factor of 5. This result has been a dramatic increase in premium rates for, primarily, Clark County physicians, some approaching 500 percent. Also, it is combined with the marked reduction in the availability of insurance companies willing to provide and write policies in our State. The good news is there is a time-tested cure to what ails this system. This prestigious body might take some comfort in the knowledge that the MICRA reform package, which the physicians are abdicating in line with what our Governor has presented and similar legislation was adopted 27 years ago by California, has been successful in stabilizing and creating a healthy competitive environment for the malpractice insurers to operate. It has kept physicians malpractice premium rates at affordable levels, and most importantly, it has insured fair compensation to injured patients as a result of medical negligence, at the same time, maintaining access to high quality health care to all of their citizens. It is this type of reform package, which the Nevada Medical Liability Physicians Task Force urges you to consider and adopt this important legislation and breathe new life into the medical community and guarantee continued access to quality and affordable health care for all our citizens.
Ikram U. Khan, M.D. (General Surgery):
I am a practicing general surgeon for the last 24 years, member of the Nevada Medical Liability Physicians’ Task Force and serve as the Governor’s liaison to this task force. I am also serving as a member of a federal medical advisory board to the United States Secretary of Defense and have had the privilege of serving on the Nevada Board of Medical Examiners for eight years.
I would like to thank the Governor for calling this special session of the Nevada Legislature to debate and vote for a long-term solution of this unprecedented, monumental crisis of skyrocketing premiums for medical liability insurance, which has shattered and shaken the foundation of health-care access and is poised to threaten the entire infrastructure of health-care delivery systems, not only in Clark County but in the entire State.
We in the medical profession owe the Governor a debt of gratitude for making medical liability insurance available in record time, and now with his leadership and the leadership of the Legislature, a meaningful, effective and durable resolution can be achieved.
The Governor’s bill introduced, today, with bipartisan support is a tremendous and bold beginning. What you accomplish over the next few days in consolidating this bill could go in the annals of history as a legacy of daring and courageous leadership for the right cause. Each of you represents thousands of constituents, who have high hopes and expectations. The decision you make here will reaffirm their belief in the democratic values and principals and will go a long way in helping them have uninterrupted access to one of the best heath care systems in the world.
This is not an issue about doctors. Doctors have become the football in the game of soccer. You can kick the ball around the court. But, if you kick the ball out of the court, the game stops and the team has to regroup. The game has stopped. It is time for us all to regroup and get the ball back in the court so the game can reconvene, and the people of Nevada, once again , can have access to their doctors.
Given the current medical liability crisis, the doctors cannot protect their family’s financial future. The endless and limitless jury awards in verdicts have engulfed the doctors and their families, exposing them to financial ruin. Doctors must, therefore, leave for a safe haven.
We have laws to protect animals in the forest from unforgiving, relentless hunters. We have laws for the protection of the environment. We also limit the number of animals that can be hunted to protect those animals from extinction. Ironically, there are almost no laws to protect the medical professional from extinction.
Like all other professionals, a doctor’s first and foremost obligation, religiously, ethically and morally, is to his spouse and children. To expect doctors under their Hippocratic oath to abandon their responsibilities and obligations to their families is grossly irresponsible and inherently unfair. Based on clear and convincing data available from several states, the doctors have concluded the only way to protect their families and have an economically viable practice in Nevada is to have a meaningful, comprehensive tort reform based on the principles of MICRA.
Any effort to dilute, modify or delete any component of MICRA have resulted in minimal impact on medical liability insurance premiums in other states. Texas is a glaring example. Texas has only three out of seven components of MICRA. They are going through a crisis of their own, today, and the governor of Texas is calling for MICRA reforms. The State of Ohio tried to implement caps but was overturned by the courts in 1985, and their malpractice insurance rates have risen.
It has been concluded in several independent, objective national studies, Harvard, Stanford, American Academy of Actuaries and the Congressional budget office studies, that MICRA of California is the gold standard for long-term, affordable, sustainable stability in medical liability insurance premiums. It has also been firmly established that the most crucial and pivotal component is a cap on noneconomic damages, and caps on attorney’s fees is an integral and inseparable component of it. The trial attorneys, for self interest, have aggressively and vociferously opposed these caps.
We watched a video earlier concerning the rights of victims, we are all for the rights of the victims. We are also protecting the rights of the victims. In fact, we recommend we go a step further, give the victims more then they receive under current Nevada law. It is sad to see those victims in the video that had to defer up to 40 percent of their awards in legal fees. Under California law, the victims of an adverse medical outcome receive 17 percent more then they do elsewhere because of those caps.
All doctor’s fees are capped. Medicare and Medicaid cap doctors and privately managed care companies. The supposed savings from these caps are to be passed on to the consumer. There are also caps on utilities and power. Then, why is there an objection to cap attorney’s fees? The medical profession has become the most regulated profession in this country.
This debate is about injured people, a minority of a few hundred versus the 2 million whose right of access to health care is being denied. The injured person must be made whole for past, present and future economic losses and an additional $250,000 cap in California for pain and suffering. Under our Governors’ plan, the cap will be $350,000.
Unfortunately, it is the unrestricted guarantees to handsome rewards that the defenders of these victims retain most of those awards that denies them their real right to that access. We also heard testimony about offering the civil justice system. This is not about the civil justice system at all. The civil justice system has been sound and safe in California for 27 years, and 33 million people are reaping the benefits of it. The civil justice system is not compromised in Utah, Indiana, Montana or Colorado. All have caps of $250,000, and 24 other states have caps of some sort. Their civil justice system is not compromised. How, then, will Nevada’s civil justice system be compromised with our meager population of only 2 million people. We believe the civil justice system will be strengthened and streamlined, and more money will be going to the victim. If such legislation is not passed, we cannot sleep with a clear conscience or look in the eyes of pregnant mothers, children with cancer or senior citizens who have no access to medical care.
Insurance industry data suggest to us that a cap of $500,000 in noneconomic damages, by estimate, could reduce insurance premiums by a meager 15 percent over 3 to 8 years. Whereas, a cap of $250,000 for noneconomic damages is expected to reduce the premiums from 30 to 40 percent over the same period. A cap of $350,000, as the Governor has proposed will reduce premiums about 25 percent for the doctor. Imagine a doctor with a 100 to 300 percent increase in premiums hanging his hopes on a meager 15 percent reduction in insurance premiums in 3 to 8 years if the cap were $500,000.
While a cap of $500,000 on noneconomic damages may be a “feel-good number,” the people of Nevada expect a “do-good number.” We feel the $500,000 number is not a “do-good number” but $350,000 is a good beginning.
If legislation does not evolve from this special session, the doctors will continue to leave. This is a painful reality. I to am seriously considering leaving Nevada in March of 2003. My insurance went up 100 percent this last year with no payments made on my behalf for over 15 years. I have had a 100-percent increase in my insurance premiums, and my insurance carrier has applied for a raise to the Insurance Commissioner. If this raise is even one percent more, I will not be able to sustain myself and my family in this community. This is a painful decision because Nevada and Nevadans have been very kind and gracious to us. We have established our roots here. Our children grew up in Las Vegas and went to public schools and to UNLV. I have done my share of community service and have fulfilled my civic duties. Unfortunately, I cannot sacrifice the well being and financial security of my family and shall move to where my family’s future is protected.
Do not abandon our beliefs, our principles and our values to make a policy that we will live to regret. The citizens of Nevada will never forgive us for denying them their constitutional right to the pursuit of happiness and their right to protect their families from harm.
Florence Jameson, M.D. (OB/GYN Physician):
I moved here in 1985. I was born and raised in San Diego, California. I went to UCSD as an undergraduate and attended UCLA Medical School and residency. I am licensed to practice medicine in California, but I choose to come to Nevada. Since 1985, Nevada has been my home. I have been very blessed with a wonderful practice beyond my dreams, hopes and expectations. I have had wonderful relationships, challenges and the richest joy that anyone could hope to have in their career. However, things have changed. When I first came to Nevada, so many of my patients went to Santa Barbara or elsewhere for their checkups, but through the years, we have won their confidence, and they stayed with our local doctors. We have seen specialists come into the city and have watched an incredible medical care system develop. Now, I am watching this care system implode, like one of our casinos. It has been devastating because at least one dozen of my colleagues have left in the last few months. In the last year, some have filed bankruptcy, and most of them have made an average loan from the bank of $60,000 to continue practicing and have experienced many months without paychecks.
When I came here in 1985, I received more for a delivery than I do today. My overhead is higher than when I arrived. It is true I am not a businessperson, but my husband is an accountant, and no matter how we try to skimp, he says, “There is no fat or fluff, dear, to take off any more. You really cannot continue.” He has been extremely patient. I started 18 years ago seeing approximately 26 patients a day and had 12 deliveries a month. In order not to sacrifice quality time with the patients, I have now extended my hours from about 7:00 a.m. to 7:00 p.m. In order to keep my doors open, I need to see 45 or more patients a day and the number of deliveries have risen to 20 a month. I cannot, humanly, do more to keep a practice going. From all my consultants and advisers, I do not know how I can make it viable.
A colleague said her son-in-law who is 23 years old with a high school degree and is a plumber makes more than she did last year as an OB/GYN physician. After 12 years in training and only 8 years in practice, she said, “I quit.” The joy is gone. Another friend told me, “I had a medical malpractice case and I am not insurable. I cannot get an insurance I can afford.”
The bottom line is, my insurance has risen so high, there really is no way I can afford it at this time. My insurance premiums have risen from $28,000 to $32,000 to $42,000, and this year it is $137,00. I have never gone to court, paid a claim or settled. How am I supposed to pay that amount when last year I made only $47,000? We are all hoping that our managed-care companies will reimburse us. I am here for the duration. I do not plan to return to California where I have a license. Nevada is my home. If laws are not enacted to protect me so that I can have affordable insurance and practice without the risk of losing everything, I will simply no longer be able to practice. After all these years of education and practice, did I move to the wrong state? All my friends say I did, but this is my home. I need a really good act of this Legislature to keep me in business. I am not any different from so many of the other physicians. Without reform, it will not work.
Mother Theresa said, “You, that practice in the city, have a much more difficult time. I chose to practice in the country where there are the poor and the dying. I can feed the poor and help the dying, die with dignity. You who have chosen to serve in the inner city have a lot more politics.” I never understood what she meant, until the last 6 months. I always thought even if I did not make money, I could barter a chicken or whatever and continue my passion and walk that healing journey with my patients. But, I do not know anymore.
What was your insurance premium raised to?
John Cotton (Attorney, Nevada Physicians Task Force):
I am here in Carson City to help with the negotiations and with the language of the bill you have in front of you.
So far, we have not heard testimony of any compromise that has been accepted by both sides.
No compromise language has been accepted by both sides at this time. The position of the NTLA would be to attack any bill with a cap at some point. The Governor has presented a plan that is workable, and we hope will solve the problem that has clearly caused a crisis in this State.
I am a trial attorney who represents doctors. There are a lot of great doctors in this State. The practical reality is we are losing them. Everyday, I get calls from doctors not able to get insurance in this State. One of the witnesses testified that this is a multi-faceted problem, and I agree. The fact that it is multi-faceted does not mean that we do not address the facet we have in front of us. The simple fact is we are not going to have any insurance carriers to regulate in this State if we do not adopt meaningful tort reform.
What we attempted to do is to adopt something that was a little bit different, had some different wrinkles in it than in other states. We have a larger cap than California. You must understand that many of these things are not necessarily palatable to my clients but are things that will be workable within the system. We adopted some exceptions but also gave some certainty to the insurance industry. When you see videos as we saw here, today, and I look at them with compassion, having had my father die at the age of 52 from malpractice, the fact is no amount of money can replace a person. No amount is too little or too much. The problem is we have a crisis that has to be confronted. For every person you saw on that video, I have 15 to 20 cases juries looked at and threw out. I have another 25 to 30 cases, in the last two years, that have approached trial, after having expended significant amount of time and effort, which get dismissed without payment. There are 20 to 30 cases for every one you may see like that, which is creating the crisis in this State because there is a system that is allowing it to occur. Unlike statements that have been made here, today, under this bill, no one is depriving anyone of a trial by jury.
For the brain-damaged baby cases and the paralyzed cases, for economic losses, for losses of income, and for the medical expenses incurred, there are no caps for those in this bill. Those are provable in a court of law before a jury. What is being capped is the nebulous damage that prevent the insurance carriers from coming into this State and helping my clients and this community. You cannot quantify pain and suffering. You cannot plug it into an underwriting program. States around the country have found the only method of giving any stability to the insurance industry, to help the doctors stay in their states is to give something they can quantify and put numbers on.
Senator Townsend and Senator Care had some questions regarding the impact of what is being proposed. Mr. Wadhams has the data. I will defer to him, and I stand ready to answer any questions regarding the substantive aspects of this bill.
Lonnie L. Hammargren, M.D. (Neurosurgical Associates of Nevada):
I have been serving the trauma center, which was a county hospital, for over 31 years. I operated on a blood clot in the head of a patient on the night the trauma center closed.
I will give you a short case and how it applies to caps. I was sued in 1994, shortly, before Christmas. I was in the operating room at University Hospital and a chronic-back patient walked into St. Rose Dominican Hospital-Rose De Lima Campus. They supposedly called me. There is no record of the contact, but my name was on the chart. The doctor the person saw decided he did not need to be admitted into the hospital so was sent to a nursing home over Christmas. Consequently, that person became a paraplegic. You would think it would be easy to get out of that lawsuit because I had never talked with them. I was miles away and am not authorized to take care of an HMO patient. It is the hospital’s responsibility, but because it is an HMO, they could not sue. They saw my name on the chart.
It has taken seven years and $56,000 in attorney’s fees to be taken out of the lawsuit. A lot of it is not the monetary award, it is the legal morass that we go through. Remember he would have been transferred to University Hospital. Does the cap apply to the trauma patients or the other patients who come through the emergency room? Many people are transferred from other hospitals. So, would the $50,000 cap apply for treating that patient or would it fit in the exclusion of the $350,000 for noneconomic damages because it is a neurological problem? If you look at all the exceptions, half of them are neurological and some are OB/GYN. If you end up being sterile, then you can sue, and the caps do not apply. How about your heart? Does that make a difference too? There is no logic to these exceptions other than they are high-value lawsuits.
Yes, it is a multifaceted problem, but it is just stunning that the doctors are of one voice in this matter, supporting MICRA, and the attorneys are their own worst enemy. You have three attorneys testifying; two saying MICRA does not work, and the third attorney stated he could not get an attorney in California to support his malpractice suit because of MICRA.
At this time, I would like to have a couple testifiers from the doctors’ group and attorneys’ group and others available if there are questions. We are on this issue of limited damages. We have heard testimony from the lawyers’ group who generally are in opposition to any cap. We have heard testimony from the doctors who have essentially said we should be adopting MICRA. We just finished a press conference where everybody said they were on board with the bill before us. We are told we have negotiated this; we feel comfortable with this bill; and we can support it. But this body has heard no testimony of that kind. Are we being lead astray? Are you ready to talk about the bill that is before us on this issue of limiting the liability, in sections 3, 4 and 5 of the bill? We would like to hear testimony as to whether this language is appropriate, if there is a need for any change in it or whether there has been some agreement in these negotiations.
Bill Bradley (Attorney, Nevada Trial Lawyers Association):
As of 8:30 a.m., there still was some language that was not quite right. We have reviewed it with the Governor’s staff and with each other. There are a few minor areas where clarification needs to be made.
We are addressing sections 3, 4, and 5 of the bill. Will you gentlemen indicate whether this language has been agreed to or are there areas where we have been given inappropriate information? Where are we on this issue?
From the physicians standpoint we begin to get a comfort level at the cap number that the Governor has put forward. Our whole presentation has been that our reform package be meaningful and by meaningful reform we are looking for two primary and one tertiary things. The two primary things are: the medical malpractice insurance market be stabilized and our premiums rates be reduced. This is very important to us. We have seen 300 to 500 percent increases in our malpractice premiums. Meaningful reform to us is not a 5 or 10 percent reduction.
This bill does not mandate any reduction in premiums. This committee needs to know if the language before us is the language your groups have agreed to for this purpose.
The Nevada Trial Lawyers Association with whom we have been having discussions with all day to work out some of the language, much like the American Trial Lawyers Association, has a concept that they can never in principal agree to caps because their clients who theoretically have to agree to it.
Is this language what has resulted from your negotiations?
It is, Mr. Chairman. Other than a few small, technical wrinkles, which we have agreed to insert in the bill, it is the language we have agreed upon.
What are the wrinkles? The Governor indicated this was an agreed-upon version of the bill.
It is more technical than just taking some words out that do not make sense in the context of the way they are worded and adding a couple of words that represent the agreed upon version. There are just one or two word additions and two or three word subtractions that need to be done for clerical purposes.
For the purpose of the record, we are looking at the printed bill, Senate Bill No. 2. Then we can look at the page and the line.
Page 3, section 3, line 10, when it says, “loss of earnings,” the last three words, “or loss of earnings capacity.”
That should read, “loss of earning capacity?”
It should read both “loss of earnings or loss of earning capacity.”
You would add, “or loss of earning capacity.” If these are not agreed to, we need to know that as we go through them.
Section 5, line 17; “damages awarded to each plaintiff.” On line 16, should be followed by “from each defendant.”
Is that an agreement?
Let me read the whole sentence. “Except as otherwise provided in subsection 3, in an action for damages for medical malpractice or dental malpractice, the noneconomic damages awarded to each plaintiff from each defendant must not exceed $350,000.”
That is agreed to. What is the next one?
In paragraph 2, on line 18, where it starts, “In an action for damages for medical malpractice or dental malpractice in the circumstances and types of cases described in subsection 3, the noneconomic damages awarded to a plaintiff from each defendant.”
That is not covered by the previous change?
We thought it should be consistent throughout.
Is that agreeable?
Yes, it is.
(continuing) “must not exceed” and the next words, “the greater of $350,000 or” is deleted.
You are deleting “the greater of $350,000 or?”
Starting with the word “the greater” and including the word “or.”
It would then read “must not exceed the amount of money remaining.” Is that agreed upon?
Yes. Section 5, the end of subsection 2, “This section is not intended to limit the responsibility of any defendant for the economic damages awarded.”
Is that change agreed upon also?
I need to get some clarification on that one change.
We will hold that one aside. That would go at the end of subsection 2.
That is the extent of the technical wrinkles.
Are there any others in sections 3, 4 or 5?
What is the importance of the change?
What is the importance of adding this language, “This section is not intended to limit the responsibility of any defendant or economic damages awarded.”
Regarding economic damages, the defendant will be responsible for the economic damages awarded.
That is distinguished from noneconomic damages. You are going to look at these changes rapidly and give us either an acceptance or a non-acceptance so we will know where there is an agreement.
Jan Needham (Principal Deputy Legislative Counsel):
May I get a clarification on that last sentence where it says, “this section,” is that all of section 5 or only subsection 2?
Does it apply to section 5 or just to subsection 2?
It applies to section 5.
Mr. Bradley, as I understand it, this change is being made because lines 24 through 26 do not specifically identify that the limitation applies to noneconomic damages, is that correct?
It is not intended to apply to economic damages.
Another way of clarifying that issue would be to amend the existing language to indicate that, “in no event would a single defendant be liable for noneconomic damages to the plaintiffs in the aggregate in excess of the professional liability insurance policy.” In hearing the remarks, it occurred to me that issue might be clarified by adding a reference to noneconomic damages in the previous sentence rather than tacking on another sentence.
You may be correct. These have been such difficult negotiations, and we are very careful about what we read.
The point of clarification for the physicians as they understood it did involve the economic damages. There is an issue that the joint and several and the joint liability still be maintained for the economic damages. We want to discuss this. As Mr. Bradley indicated, we just received this portion, and it has been explained two different ways. We would like a little more explanation.
Will you come back to us before we finish this evening?
If we could get our presentation together, we were trying to do that when we were called back in for testimony. We were trying to get this ironed out with our larger caucus.
Other than that issue, is there any thing else that needs to be changed in sections 3, 4 and 5 or anything that pertains to limits on liability.
At no time, during any of the negotiations to try to reach an agreement, was there a discussion that suggested any caps on economic damages. They were always referred to as noneconomic damages. That is the lynchpin of the Governor’s proposal. All costs, medical expenses, lost earnings would be reimbursed if they are provable damages. To come to this table and not understand that is in my estimation almost disingenuous.
Is there some issue on that, now?
I need to discuss this with my clients. I do not know that using terms like disingenuous is profitable here. I will have a response by the end of the evening.
I want to be sure I heard what the parties intended as to section 3, line 9, page 3. “Economic damages includes damages for medical treatment, care or custody, loss of earnings, and loss of earning capacity, not “or.”
“And/or,” may be more appropriate because it may be both or one or the other.
Is that your understanding?
You are correct, Senator Care. It is “and.”
I do not want you to feel that you are going to agree, and we are going to rubber stamp it. What do you mean by the capacity to determine this $350,000 cap? As I understand it, the judge can lift the cap if you make the case that there is gross or egregious negligence. I am speaking about paragraph (h), subsection 3, section 5. Where do you see that coming into effect?
When a judge sits in a courtroom for two or three weeks and listens to the evidence, and despite the fact this particular plaintiff’s case does not fit within these exceptions, that under circumstances where someone is catastrophically injured the judge is convinced by a higher standard, after listening to all the evidence, this plaintiff is entitled to something more than $350,000.
Is he going to make that determination by himself or are you going to request it?
A jury returns a verdict and goes home. A week later, the defense will make a motion to reduce the verdict pursuant to this new statute. At that time, if in the plaintiff’s lawyers opinion there is clear and convincing evidence that this was another type of catastrophic injury, the plaintiff’s lawyer will make a motion requesting the judge to consider the circumstances if the evidence was clear and convincing that the plaintiff is entitled to something above the $350,000 cap.
In the cases that have been filed in the courts, eight states have stricken the caps. California’s has been upheld several times, is that true?
I do not know about several times. I certainly know about the leading case that upheld it.
Do you feel as though this particular bill is constitutionally sound, or is it challengeable?
Senator O’Donnell, I hope you do not think I am ducking your question but I have enough trouble keeping up with the specialties of law in which I specialize. I am not a constitutional lawyer, and I cannot answer the question for you.
Is it your intention, or the lawyers’ intention to challenge this?
You do not take this statute to a court right now and ask whether it is constitutional. You must go through a case and have this statute applied to a case and have it work its way up through the judicial system, At that time, if that lawyer who is involved in that case feels that way, then, that lawyer has the option to make that request.
Section 13, subsection 3, paragraph (b).
This is the section on periodic payments. Please reserve those questions until we discuss that area of the bill.
We have heard compelling testimony concerning the reason that we need to put these caps in place is to try to reduce insurance premiums, and we need to do that in order to save our doctors. We, secondarily, heard that if we do not show the linkage between saving doctors, which is good public policy, and reducing the premium, perhaps, it would be a constitutional question. We should put an amendment in the bill that provides that linkage rather than leaving it to chance and the good will of the insurance industry and say roll back those rates. Then, we know we will have that linkage. I would purpose an amendment that says, “roll back the rates 20 percent.” I would offer that to this body.
That question was raised initially, and it is my understanding that it is outside the Governor’s call. Therefore, it would not be an appropriate amendment.
Can we look at the issue in section 1 and to whom this applies.
That would be appropriate because it deals with caps.
I would like to suggest an amendment that podiatrists be added.
What is the line and section?
Section 1, subsection 1, paragraph (c), line 13 or 14. Line 13 lists, “A physician or dentist licensed under the provisions of chapter 630, 631,or 633.”
Would not a podiatrist come under the definition of a physician?
They have their own chapter 635, and they are listed in several places in the NRS as being appropriately called physicians, NRS.040 and .060.
Let me ask staff. Would that be appropriate?
If there were a desire to include podiatrists under the terms of medical malpractice, that would be appropriate.
It is not my intention to open this up to every group under the sun, but they are listed as physicians. They can practice in hospitals, and they are subject to other provisions in this bill under health care providers. Being able to practice in hospitals, if they are left out of this, will be a tremendous disadvantage to them.
When it comes time to vote on that issue, then, it would be an appropriate suggestion for an amendment.
Let us go back and address this cap language on noneconomic damages as stated in the bill. Let me preface my question with these remarks. There has been a lot of discussion this evening relative to the caps being unconstitutional. Different caps bring different results across the nation, and the caps are not going to reduce the premiums. I have another side to this. Could you tell me whether the caps devalue a human being?
No further explanation? What about the doctors’ side?
I do not feel it devalues a human being. It is almost impossible to quantify the types of losses we are talking about. Whether it is $1, $350,000 or $500,000, the losses are not quantifiable. There are quantifiable losses that do go towards devaluing a human being by not providing adequate medical care, not providing for loss of income to their families, those are the economic damages.
Are you saying that, when you look at me as a whole person, I am only worth $350,000.
No more than I would say you are worth $1 or $5 million. I cannot say what you are worth. It is such a speculative number, and this is part of the problem. I have tried a number of cases, and I have had juries give awards all across the board for similar types of injuries. It is not something that has a value in my mind one way or the other I generally leave that up to a jury. The practical problem is, without some quantification, we are in a stage where we are not going to get new carriers writing insurance nor providing sufficient coverage for doctors to stay in this State. Mr. Wadhams was going to be here, and I do not have actual numbers. I have been quoted some, but I do not want to quote mistaken numbers. He has represented that there will be significant decreases in the premiums and the ability to keep doctors here. I offset that with, are we devaluing the people who are here who do need medical care? There is the lady who has to drive to Bullhead City. I cannot quantify what that is worth to her for her anxiety to have to leave this State to receive medical care. I think that situation is going to repeat itself in gross fashion if we do not have some solution.
As I understand your explanation, the essence of the cap is to keep doctors here. It has nothing to do with the pain and suffering of the individual.
It puts a value on those that will support someone being able to make a business decision as to whether they will win or lose money here. St. Paul has been sent out as a whipping boy. The simple fact is that CNA, MICOWA, NORCAL, MIEC, none of them are writing in this State. It cannot be that large or system-wide of a conspiracy causing them not to write in this State. There are quantifiable numbers here that it is a loser in this State to write business for less than what these doctors are paying right now. They are paying out a significant amount more in damages than they are collecting in premiums, and that is at the current rates. Something has to be done to address the other side of the equation, or we are not going to have an insurance company to regulate.
If I lose an arm or a leg, then, quantifying that in terms of cost has to be something that would be provable to the doctors to keep them in this State.
As opposed to caps in most states, what we have under our system on the loss of a limb, or other catastrophic injuries, is that if you had $100,000 of medical expenses, you could recover up to $900,000 worth of pain and suffering in noneconomic damages. We do have increased amounts. The practical problem I was dealing with here is a lot of offsetting concerns, concerns of people who can not get medical care. Doctors are leaving, doctors who can not get policies and are charged a dollar amount for coverage that has a significant impact on our ability to keep our physicians in this State. It is such a tough balancing contest. I do not envy your job in the slightest nor do I intend to tell you how to do it. I would love it if you adopted a lower cap because I think that would keep more doctors here. But the practical matter is, there is a balance, and there gets to be a breaking point, and we are almost there. Where there is any significant savings, and more importantly where people can persuade more insurance carriers to come in and reinsurance carriers to underwrite them, so that we can get some competition back into this State. I would love you to have 20 insurance carriers to regulate. That would be an ideal situation not just for you but also for the citizens of this State.
I gather from your remarks that it is not a devaluation of the human being. You do not believe that?
No, Senator, I do not believe that. I did personalize that with my father. There is no amount of money that could replace him. You cannot put a value on his life. I lost him in a malpractice situation. If someone said I would give you $350,000, it would not bring him back. But, in that circumstance, if someone said to me, your mother is going to be deprived of the ability to survive; we are not going to give her economic damages; we are not giving her anything at all; that would bother me. Under these circumstances, you try to find a balance where society’s interests and needs for medical care in this community are offset against an extremely small minority of people. That is the balance test. With a crisis like this, the needs of society versus the need to maintain a free-floating level of damages without a statement as to valuing life, because no one can place a value on life.
I find your comments to my question quite interesting, which leads me to make this comment. Are we now looking to grow body parts? Will we create a drug store on the corner where we can purchase an arm or have a farm of individuals that can supply body parts for other people? Are we headed in that direction since we cannot put a value on these things? It seems to me the human being is becoming less and less in the whole sphere of things. That troubles me.
There are other methods of addressing those problems. Other states have compensation funds but is not something that is addressed here. The simple fact is, and it is a sad situation because there are people in our community that lose their arms, their legs, the ability to breathe, not by anyone’s fault and I have a great deal of sympathy for those people too, they do not get to sue anyone. They live with it the rest of their lives. It is a happenstance that someone in this case loses legs and they are going to blame it on a doctor. The simple fact I have found in my practice, which has been fairly extensive in defending cases over the years, is most of the time I do not find a doctor responsible for someone’s injuries. It is very small percentage of cases where the doctor is held responsible or where I look at a case and determine that somebody did something wrong and should pay. As a consequence, all of the medical industry is confronted with the problem of not being able to practice medicine. This is the solution that has been attempted in most states. It has been effective, statistically, in most states. It has worked to make a viable system work in most states. I would expect every single person in your position has had to anguish over the decision because it is not an easy thing to do.
Have you ever thought there might be something other than the cap?
There have been a number attempts to address this issue, as I have indicated, in other systems. The problem is we have run into these traps, and you are in the trap much more than I am with taxation. There are systems that tried to put a tax on medical services and raise monies to create patient compensation funds for those damages that might exceed a cap such as this. But, those are political decisions. There is only so much money to go around. They are tough decisions, and it becomes “that is your problem there, and the doctor’s problem over here,” and we have the doctor’s sharing the burden, entirely, for society as opposed to any real spread of it. In my opinion, it is not a legal issue; it is a social issue. The determination has to be made by this Legislature not by lawyers.
Based on the testimony about the constitutional issue, I would recommend we put a provision in this bill concerning several liability so that whatever does pass some of it might stand if it is challenged. The other thing I am puzzled by is this, one side says the crisis is defined as an increase in medical malpractice premiums, the answer to which is a cap. The other side is talking about constitutional and protection issues. We do not have the people to give us the answer. If a cap is passed, whatever level that may be, what does that do for the premium of a doctor who is practicing in the field of either OB/GYN or trauma in southern Nevada? I find it most amusing that we do not have anyone here who is going to stand up and represent the insurance industry to give us specific answers. Now, we are all aware that we only control a certain amount of the insurance side of this issue because of federal protection, and we are precluded from doing things. I do not have an answer from the people who are going to respond to the proponents who say they have a problem. That is what I am wrestling with.
As Mr. Bradley indicated, to get these things down into quantifiable form in sections 3, 4 and 5 was not an easy task. The NTLA has been extremely cooperative and worked hard to do so. I have spent the better part of the day on that point getting some confirmation in my own mind before I would recommend to my clients that there is a significant benefit from an insurance standpoint. We have gotten information developed. I have been told that there will be some people here tomorrow to testify to that issue. It is a critical issue for you to hear.
Am I confused, Mr. Chairman, or are we the only 500 people in the State that heard about the special session and what it was about? Why are they not here?
As you know, as part of the subcommittee you are a member of, today is July 29. We had a hearing scheduled for today where we for the first time, despite numerous requests, thought there would be some insurers at the subcommittee meeting. We also know that, other than Mr. Wallace, we had no members at any of the subcommittee meetings despite the request from you as well as other legislators at the first meeting of the subcommittee regarding this exact issue. As you can see from the debate you are hearing, as part of the Governor’s committee in attempting to discuss the issues across the table, we could not get any answers to the questions you are asking.
In the interest of legislative intent, I would like to hear what both parties have to say regarding the scope of these caps. We do have NRS 41A.097 that gives a definition of a health care provider, but there was some discussion earlier about midwives, and there was a suggestion that podiatrist would come in to NRS 630, 631, 633. If you look at what happened in California, there is a lot of case law about exactly who is covered―military hospitals, blood banks, transporters of patients from one hospital to another. I would like to hear who you think will enjoy the shield of caps. I am assuming it would include the doctors, the hospitals and their employees. I do not know about independent contractors.
This whole debate was driven by a crisis we contend was caused by insurance companies involving physicians. With all due respect to Senator Rawson, we did not hear in the last six months of a crisis in the area of podiatric medicine with availability and affordability of insurance rates. You should proceed with caution with regard to adding additional professionals that did not experience a crisis. From reading the bill, there is a difference at the trauma center regarding who is covered and who is covered at a non-trauma center. The intent was to cover the hospitals, the doctors. Independent contractors are different because of the trauma centers or non-trauma centers, and it is a very complicated question to answer. Previously, the screening panel covered physicians, hospitals and osteopaths. That is where the crisis was in 1985 when the screening panel was created. In all our discussions, midwives and things such as that were never a part of our discussions.
In the catastrophic case, does that include hospitals?
Yes, it does. There is something important that needs to be said, some people have talked about the cap going up to $1 million. In the catastrophic case, the cap does not go up to $1 million, Senator Care. This bill provides, in a noneconomic catastrophic case, the noneconomics awarded against either a physician or a hospital go up to the limits of that particular individual or hospital’s professional liability limit. I wish to be perfectly clear. That is not $1 million in many cases. That was the intent.
The bill does require that doctors carry a $1 million policy.
Actually, the bill requires $1 million per incident and $3 million per occurrence. There is also a “self-consuming clause.” This is where defense fees are taken off the limits. If you are in three years of litigation and you started off with a $1 million cap and you have a lot of lawyers working on your side, by the time your case is settled, your limit might be down.
In some cases, the policies do not go that high, but they will be required under this bill.
My point was, there are not any self-consuming policies sold now, but if they were, the intent was $1 million per incident and $3 million per occurrence available to the victims of medical negligence. That is in respect to the physician, but the hospitals carry much higher policy limits, and that would be the limit with respect to a hospital.
I love preambles because they help to create rational relationships. We could strengthen this preamble. Looking at page 1 of the bill, following line 7, we add another phrase “and aggrieved patients are afforded appropriate access to jury consideration for redress,” or something of that nature. In order to state that, we see there is a problem. We have to do something about that problem. This will adequately protect their constitutional rights. That would help the overall process.
That is a potential amendment to the preamble, is that what you are saying?
Senator Townsend made a good point about several liability. I do not know if it is in the later part of the bill where it usually resides, but it should be in there. One of the things that will help this bill and maintain the caps is the language on page 3 which does allow a judge to pierce that cap. That will help the constitutionality because there are some catastrophic things that will occur that are not on a list. Whenever you build a list, you automatically leave things out. In subsequent sessions, we will be visiting this part of the law adding new acts, which should be catastrophic based upon a legal decision by the courts. It is a good idea to have this in the bill to protect the caps, and it may prevent having a several liability clause. Seeing a list like this always makes me nervous because of what is left out. But, the judge does have flexibility, and I do not think it will drive the premium rates up.
Nevada Revised Statute 0.020 already provides “if any provision of the NRS is held invalid, that invalidity will not effect the other provisions.” Basically, several liability is already built into every statute. Subsection 2 of NRS 0.020 also provides that the inclusion of express declaration of several liability in a bill does not enhance the several liability of the provision or detract from the several liability of it.
Charles Laws (Green Party, Candidate for Governor):
I am a retired environmental engineer and am familiar with systems analysis. When we are dealing with very complex interacting systems within a system we have to do a great deal of diagnosis to get a better grasp of what the relationships are and how when you pull on one end the other responds. I would like to describe our system as I see it as being totally supported and motivated by the needs of our residents for secure medical practice. What we have serving them is insurance systems which somewhat dictate to the physicians and other caregivers what they can provide. We have a system of service to the caregivers to protect them from accidents and injury to their clients, which has a continuing relationship, and then we have a relationship with all of you, here, to the administration, and the regulatory and licensing boards. At the moment, we have a conflict between two insurance sectors. The insurance companies who provide health insurance do not want to let the doctors do things which would protect the doctors from malpractice events. The malpractice insurers do not want the doctors to do anything but be protected from malpractice cases. Therefore, we have a conflict that goes on behind the scenes.
What Governor Guinn presented, today, is an excellent first step, and he recognized it is going to be a continuing set of steps. I think he went out of his bounds in suggesting that he would be the one to work with you in the Legislature in 2003. Senator Neal and myself would also enjoy the opportunity to sign into legislation a bill. What I am really asking you to undertake is, in regard to caps, the recognition that economic means cannot be used to balance or to award noneconomic losses. They are out of sync. If we were to say it would be possible to mandate that people who have suffered loss receive those services which benefit them in the transition from their loss, this would be a very useful thing and is beyond the scope of what Governor Guinn is recommending you limit yourself to. I know there are things within the system that may need to be looked at in the future. This bill may serve well as a Band-Aid and aspirin to keep things under wraps. But, it does not deal with the sources and causes of what has precipitated the crisis. We must move beyond crisis into some kind of management and development of what the future needs to have in order to provide security to me and the other residents of the state.
Senator Townsend and Senator Care, I would say the $350,000 cap is quite sellable, but section 5 contains language which attempts to narrow it, but, in the scope of probabilities and the uncertainty of loss, with regard to paragraph (h), as was pointed out by Senator O’Donnell, “you could drive a truck through it.” In sections 31 through 37, which of those cases on the video would have breached the $350,000 cap? We know that severity is an issue facing this community, and if this were passed, today, those cases on the video, looking at their malpractice issues, very well would have surpassed the $350,000 cap. I appreciate both sides of the argument. Is there something we can do besides caps? That would be wonderful, but there has been nothing provided to show that there would be a fix without caps. That is why we keep hanging our hat on MICRA.
Robert W. Schreck, M.D. (President,Nevada Medical Association):
I came, today, to specifically talk about section 5, subsection 3, paragraph (h) to which Senator O'Donnell talked about earlier.
It reads, “A case in which, following return of a verdict by the jury, the court determines by clear and convincing evidence, that an award in excess of $350,000 for noneconomic damages is justified under the circumstances.” The question is what circumstances? Mr. Bradley testified to catastrophic injuries, and it was mentioned several times that they are talking, specifically, about catastrophic injuries. I think that wording should be looked at as a possible addition to the paragraph and possibly even further recommendations might bring it into a meaningful sentence. It just ends in the air stating “circumstances” because you really do not know what circumstances are being talked about in this paragraph.
Is the group representing the medical profession considering that?
They are discussing some of these issues now. I bring it up because Senator O’Donnell said this body is going to use their own thought processes and intelligence.
We were trying to ferret out what had been agreed to and whether there were any changes that were required by what has been agreed to. We have the opportunity and the right to add whatever we want that is germane to the Governor’s proclamation. Your suggestion is, regardless whether that has been agreed to, that we should look at that language also because it is too general. Is that what you are saying?
I am saying that it is something Mr. Bradley said and was repeated. I assume the trial lawyers are in favor of that language, but I do not know whether it has been discussed.
Do you have any specific suggestions? Are you saying it should be catastrophic?
I would suggest catastrophic circumstances.
Before I actually saw language, I was under the impression that paragraph (h) under subsection 3 would be in the case of gross malpractice. I am wondering whether the parties would consider putting an “and” on line 39, so that if it is a case of gross malpractice, “and” there is clear and convincing evidence.
We will make a note of that suggestion. Is there any other public testimony?
Susan Roe (Registered Nurse):
I lost my son three years ago due to medical negligence. We are at the point in the case where we are going to the medical screening panel. I would like to speak about caps. While it is true that no amount of money will make up for the loss of my son, I do feel that what I have experienced, our society understands. We understand litigation. Physicians understand judgments against them. To put the cap at a low enough point that you cannot get a lawyer to take your case is really doing a disservice to my son and everyone else who has been injured or died because of medical malpractice. I hope you will keep that in mind. The loss of a son is something that we will never get over. There are so many intangibles things that enter into this. My husband is unable to work, and his heath has significantly deteriorated since our son’s death. It is a total devastation of our lives, and I would ask you to please bear that in mind when you make your decisions.
Where was the hospital located, in northern or southern Nevada?
It was in southern Nevada.
Was it at private hospital or public hospital?
It was at a private hospital.
If your son was injured in a public hospital, say you had chosen UMC, would you think it would be fair that you would have less compensation then if you went to Sunrise or some other hospital? Do you think $50,000 is good enough at one hospital and $350,000 is okay at another hospital?
No, $5 billion at any hospital would not be enough. The disparity there would be tough to take.
The only issue we have that is still pending is the suggested language that was to be added to subsection 2. Tomorrow we are going to start with joint and several liability.
Scott Young (Principal Research Analyst):
That would be section 1 in the present bill, “liability for acts in a government or nonprofit center.” The next item that we had tentatively listed was the “several liability’s standard,” which is in section 6. After that, we had listed reviewing the medical and dental screening panels to revise existing procedures or change the composition of the panels. Those provisions are largely repealed, but they were addressed in sections 24, 35 and 38. The other item we had tentatively scheduled was strengthening the reporting requirements regarding disciplinary actions, claims settlements and/or awards against physicians, which is contained, now, in sections 14, 19 through 23, and 28 through 34.
We will recess until 8:30 p.m. They will come back with that information. We will then conclude our deliberations and vote on this part of the bill.
The committee will please come to order. In order to do justice to the issue before us, it is the Chair’s intention to recess the committee this evening. The Senate will have to go back into session, into the Chamber and adjourn formally. This committee will resume at 8:00 a.m. tomorrow. At which time, we will hear any final testimony or input. We will then deliberate and vote on the issues in sections 3, 4 and 5 of Senate Bill No. 2.
Senator Raggio moved that the Senate rise and return to the Senate Chamber.
SENATE IN SESSION
At 9:37 p.m.
President Hunt presiding.
GUESTS EXTENDED PRIVILEGE OF SENATE FLOOR
On request of Senator Milburn, the privilege of the floor of the Senate Chamber for this day was extended to Donna Draney, Andrea Anderson and Jim Munson.
On request of Senator Paulk, the privilege of the floor of the Senate Chamber for this day was extended to Lynda L. Paulk.
On request of Senator Shaffer, the privilege of the floor of the Senate Chamber for this day was extended to Don Meyer and Deb Meyer.
On request of President Hunt, the privilege of the floor of the Senate Chamber for this day was extended to Ron Mancuso, Tina Mancuso, Roman Mancuso and Zia Mancuso.
Senator Raggio moved that the Senate adjourn until Tuesday, July 30, 2002 at 7:30 a.m.
Senate adjourned at 9:38 p.m.
Approved:Lorraine T. Hunt
President of the Senate
Attest: Claire J. Clift
Secretary of the Senate