LAS VEGAS -- For a brief moment two years ago, Nevada lawmakers thought they'd brokered a truce in the bitter war between doctors and trial lawyers.
Amid skyrocketing medical malpractice insurance rates, a special legislative session passed a tort overhaul that gave doctors and their insurers caps on jury awards in malpractice cases and new ways to weed out frivolous lawsuits. But the new law allows some exceptions to those caps.
That 2002 measure, far from bringing peace, thrust the Silver State deeper into a political battle royal that will have voters considering malpractice-related initiatives this Tuesday. In addition to Nevada, ballots in Wyoming, Oregon, and Florida also ask such questions; the issue had never before appeared on more than one state's ballot in a given year.
Indeed, tort reformers have been successful this way only once -- last year in Texas -- but they're encouraged this year because President Bush raised the issue's profile by frequently attributing the escalating cost of American healthcare to trial lawyers.
Nevada's situation is more complicated because voters may approve contradictory questions and add to the confusion.
Question 3, backed by doctors and insurers, would limit attorney fees in malpractice cases and eliminate the exceptions to the $350,000 cap on damages for pain and suffering passed by the special session. But Question 4, backed by trial lawyers and patient advocacy groups, would eliminate jury caps altogether if insurance companies don't lower rates by 10 percent within a year. And another lawyer-backed measure, Question 5, would prohibit limits on attorney fees.
Recent polls indicate all could pass, reflecting confusion about both the issue and the impact of ballot questions written in convoluted and technical language.
''These are the kinds of things that need to be wrestled with in the Legislature because they're very complicated," said Greg Bortolin, spokesman for Governor Kenny Guinn. Guinn, a Republican, has publicly opposed Question 4 and 5, but hasn't taken a position on Question 3.
Florida voters will also decide three questions. One sponsored by doctors and insurers would limit lawyers' share of malpractice settlements. The attorneys countered with a question asking voters to take away the medical licenses of doctors who have committed three instances of malpractice and to make it easier for patients to find out the malpractice history of their physicians.
''It's like the lawyers are saying, 'I'll see your medical malpractice jury cap, and I'll raise you two ballot measures you're not going to like,' " said Kristina Wilfore, executive director of the Ballot Initiative Strategy Center, a nonprofit think tank in Washington, D.C.
Voters in the other two states have more straight-forward decisions to make. The Wyoming question would allow the state Legislature to cap noneconomic damages, while Oregon voters will decide whether to set a $500,000 limit on the same.
Medical malpractice burst onto the political scene in 2002 after the nation's second-largest medical malpractice liability insurer, St. Paul Cos., stopped writing this type of policy altogether, citing large jury awards and excessive litigation. Doctors across the country went shopping for other insurance and found that the remaining companies were charging triple or more, particularly in high-risk specialties like obstetrics and surgery. Some physicians stopped practicing or refused to take new clients.
A steady tide of lawyer-bashing ensued. The American Medical Association declared the overhaul of medical malpractice its top legislative priority nationally, and Bush, whose campaigns have been heavily backed by insurance companies, took up the cause.
More than half the states have limits on jury awards, but only seven -- California, Texas, Colorado, Nebraska, Louisiana, Wisconsin, and Montana -- allow no exceptions. Massachusetts passed a $500,000 cap in 1986, but it includes several exceptions. California's 1975 overhaul, which caps damages at $250,000, is seen by doctors and insurers as the model.
In Nevada, Guinn called the special legislative session in July 2002 after a dramatic 10-day shutdown of the trauma center at University Medical Center in Las Vegas; neurosurgeons refused to work there because of high malpractice insurance rates. The trauma center reopened after the state made provisions to insure trauma center physicians at public facilities, and lawmakers in the special session passed the $350,000 cap on noneconomic damages for pain and suffering.
Yet within weeks of that law's passage, a group called Keep Our Doctors In Nevada emerged and demanded that the 2003 Legislature eliminate exceptions to the jury limits that allow judges to exceed the cap in cases of gross negligence or extraordinary circumstances. Lawmakers refused, wanting to see whether the policy changes they passed would work first, but the doctors and insurers refused to wait and gathered the signatures that turned their measure into Question 3.
''The reason why there are so many of these ballot measures is that there's a weakness in our political process," said Dr. Richard Anderson, CEO of The Doctors Co., the only private insurance firm writing medical malpractice policies in Nevada.
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