Bill passes after debate

CARSON CITY -- A bill written to allow Las Vegas hepatitis outbreak victims to seek unlimited damages in "pain and suffering" medical malpractice claims cleared its first major legislative hurdle Monday.

The Assembly voted 26-15, mostly along party lines, to kill the state's cap on lawsuits filed by patients against doctors found to be guilty of gross negligence.

During a thorough debate, Democrats contended Assembly Bill 495 would not hurt good doctors, and Republicans claimed it would lead to higher medical malpractice insurance rates as well as higher medical rates for patients.

Under current law imposed by voters in 2004, patients cannot sue for more than $350,000 in noneconomic or "pain and suffering" damages. But under the state constitution, laws passed by voters can be changed after three years.

Assemblywoman Sheila Leslie, D-Las Vegas, voiced the views of many of the bill's supporters, saying colonoscopy patients were hurt by the deliberate negligence of their doctors last year and now are being hurt again by the justice system because they cannot sue for more than $350,000.

The bill would affect any patients, but it was introduced after more than 50,000 patients at two now-closed outpatient clinics in Las Vegas were notified last year that they might have been exposed to blood-borne diseases by shoddy injection practices.

Nine people contracted hepatitis C, and 105 more cases might be linked to the clinics.

Dr. Dipak Desai, the physician whose endoscopy centers have been linked to the outbreak, suffered a stroke in July and his attorneys say he is unable to assist them in defending medical malpractice lawsuits, according to the state Board of Medical Examiners.

Assemblyman William Horne, D-Las Vegas, said Monday that the state's medical malpractice damage limit protects bad doctors. He said AB495 would come into play only if the patient can show gross negligence.

Horne, a lawyer, defined gross negligence as a "conscious indifference and disregard to the health and safety of the patient,."

"This doctor would have to be totally not paying attention and does not have the patient's welfare in mind," he added.

"Our laws should not protect the criminals who are doing this," he said.

But Dr. Weldon "Don" Havins, past president of the Clark County Medical Association, said Nevada law already allows attorneys to punish a bad doctor through suing for punitive damages.

He pointed out that the law now allows a plaintiff to win three times the judgment made by a jury when it is shown there is clear and convincing evidence of negligence.

"And it can't be paid by the insurance company," Havins said. "It would have to be paid by the doctor. That would definitely punish him. But by removing the cap, you're punishing all doctors because their insurance will go up."

While Las Vegas attorney Gerald Gillock acknowledges that a doctor can be sued for punitive damages, he said it's almost never done.

"You have to show evidence of malice, fraud or oppression, and that is a very difficult threshold," he said.

A doctor who asked for anonymity said the reason lawyers don't go after doctors for punitive damages is they would have a hard time collecting.

"The doctor would declare bankruptcy and the lawyer wouldn't get his money," the doctor said.

Havins said changing the law so an individual has two years, rather than one, to file a malpractice lawsuit would also make malpractice insurance premiums increase. That provision also is in the bill.

"Insurance companies can better gauge their risk when there's only year to file a suit," he said.

But Gillock said that often an individual who is injured by a doctor can't respond in just a year because of medical and emotional problems.

Assemblyman Joe Hardy, the only physician in the Assembly, said the criminal justice system and medical review boards should be disciplining bad doctors and a new law is not needed.

"We have a challenge getting enough doctors to Nevada," added Hardy, R-Boulder City. "If good doctors do not apply to come to Nevada, we do not increase our quality of care. I do not think this will do anything for increasing the quality of care."

Hardy voted against the bill. He declined to abstain from voting on the grounds, allowed under Nevada law, that it will not affect him more than any other doctor.

"This may hurt the good doctors," said Assemblyman Ty Cobb, R-Reno. "The good doctors will be priced out of our market, as well as the bad doctors."

Assemblyman James Settelmeyer, R-Gardnerville, said he visited his doctor Friday for an inner ear problem and all the doctor wanted to do is talk about how AB495 would hurt him.

"I am voting against this because of what my doctor said," he added.

The bill now goes to the Senate, where its fate is uncertain, for additional hearings. Gov. Jim Gibbons has not yet decided whether to support or veto the bill if it clears the Senate.

"There has to be a balance between negligence and having quality doctors leave the state," said Daniel Burns, who is Gibbons' communications director. "Let's see if the balance is there if the bill comes to the governor's desk."

Twenty-five of the 28 Democrats supported the bill, while 13 of the 14 Republicans opposed it.

Assemblymen Morse Arberry and Harvey Munford, both D-Las Vegas, voted against AB495. Assemblyman Ed Goedhart, R-Amargosa Valley, voted for it. Assemblywoman Bonnie Parnell, D-Carson City, was absent.

Review-Journal writer Paul Harasim contributed to this report. Contact Capital Bureau Chief Ed Vogel at evogel@ reviewjournal.com or 775-687-3901.