In an effort to thwart the alleged “crisis” and based on fears invented by media companies aimed at shifting the focus from the real issue, Nevada citizens took the initiative to vote limiting the uneconomical damage from medical negligence. See NRS 41A.035. This restriction is unconstitutional both under the provisions of the U.S. and Nevada Constitutions. The courts must declare the limit of non-economic damage unconstitutional.
A. The problem
NRS 41A.035 and related provisions, collectively referred to as “delinquency reform”, have been adopted to address the alleged problem of a sharp rise in negligence insurance rates combined with the belief that such rates either remove physicians from practice, restrict their practice, or completely leaving Nevada. The urgency of the need for action and the representation presented was that in some ways this problem was immediate and causally related to the recent unreasonably high jury verdicts that created losses for insurers, justifying an unjustified increase in the negligence rate.
The “problem” is not the creation of the twenty-first century, which has recently evolved from a single cell into a full-blown tumor. Rather, the “problem” has existed for decades. For example, in September 1976, the Legislative Commission of the Nevada Bureau of Legislative Advice published a newsletter № 71-1 entitled “The Problem of Medical Negligence Insurance.” This bulletin grew out of Parallel Senate Resolution № 21 (1975), in which a study was commissioned. The resolution states
NOTE: There is a nationwide problem with doctors and health professionals getting negligence insurance, with many insurance carriers going out of coverage and others increasing premiums by several hundred percent; and …
BULLETIN, the problem of negligence in Nevada is now in a state of transition, and the exact extent of a number of problems is unclear; availability of insurance.
B. Historical reasons
It is important to have a common understanding of the “causes” of the perceived crisis to assess whether the proposed “solution” is rationally related to the interests to be protected. In the 1976 Bulletin, the Commission identified a number of potential reasons. First, the Commission found that there was no single “reason”. Among the reasons, the Commission included: (a) negligence itself; (b) the media; (c) national jurisdiction; (d) contingencies; (e) the imposition of no-fault insurance; (f) stock market losses; (g) inadequate underwriting; and (h) jury verdicts.
While these are not all causes, they are the most frequently discussed. However, the Commission concluded that the main cause of the medical negligence crisis was medical negligence itself. A decade later, the Legislative Commission reconsidered the crisis by publishing Medical Negligence Insurance Study, Bulletin № 87-18, Legislative Commission of the Bureau of Legislative Lawyers, Nevada, August 1986 (Appendix IV). The bulletin acknowledges that between 1976 and 1983, health insurance rates in the country increased by only 51%. However, again the cycle leaked, leading to a sharp increase in 1984 and 1985. Id. This again aroused legislative interest. This time, in addition to the reasons mentioned earlier, the Commission said, “at least part of the responsibility lies with the insurance industry.”
C. Historical solutions
Back in the Commission’s 1976 study, ways to resolve the alleged crisis were suggested. One of the proposed solutions included “tort reform”. These reforms included limiting jury sentences. Identifier However, already in this report, the data suggest that the statistical probability of the plaintiff’s success was so low that any such restriction would have almost no real impact on insurance rates and affordability. The 1976 bulletin states that “only 8 percent of all lawsuits go to court. Only 6 of those 8 percent go to trial.” Only 17% of them were in favor of the plaintiffs. “
D. The problem of the XXI century
From a historical perspective and understanding we are brought to an instant crisis that led to the final initiative of adopting NRS §41A.035, limiting non-economic damage to $ 350,000.00. The clear objectives of this offense reform movement included: (a) reducing the rate of health insurance; (b) stabilization of the insurance market and availability of this insurance; and (c) ensuring access to health care for Nevada citizens.
NRS §41A.035 was introduced in 2003 as Senate Bill 97, which tracked initiative petitions and the potential submission of ballots to voters. Legislative history is replete with references to the fact that the Senate Bill № 97 and the voting initiative were identical. Thus, while the legislature itself has not adopted NRS §41A.035, the discussions in the legislature are informative and relevant. On March 23, 2003, Dr. Montei, a person whose name was synonymous with the petition, testified before the Senate Judicial Commission, stating: “All we are saying now is the number of cases and the amount of rewards that make health care unaffordable. ».
On March 5, 2003, Ms. Alice Moloski-Armand, a Nevada State Department attorney, appealed to the Senate Judiciary Committee. She testified that between 1999 and 2001, 296 of the 552 claims were closed without compensation. She further testified that in July 2002 there was a huge surge in the number of claims filed. Identifier Ms. Molaski-Armand said the 2002 reforms did not lead to lower insurance rates. Both Lawrence Matthews and Buckley MP said the reforms would not lead to lower insurance premiums. At best, there was hope that the reforms would lead to stabilization. Identifier
Discussing the reasons for the increase in insurance premiums in Nevada, Ms. Molaski-Arman including including the following: (a) reinsurance; (b) lack of competition among insurers; and (c) stock market losses. She did not include in her statement the reasons for the jury verdicts and their impact on the rates.
Given the aforementioned alleged “crisis,” Nevada citizens have been subjected to media blitz by both supporters and opponents of the voting initiative. Fearing the unavailability of medical care that moved their voices, citizens passed a law that embodied NRS §41A.035. Now it is, to put it mildly, a confusing contradictory mess. We’ll delve into this issue in more detail in our next EZINE article, or you can email us or email us, and we’ll give you a list of possible decisions we’re currently making on behalf of our clients on medical negligence.
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