October 31, 2004

Nevada's ballot initiatives

I am a physician in Nevada, and am active in the fight for tort reform in our small state. There are three competing initiatives on the Nevada ballot of intense interest:

Question 3, which promotes California-type malpractice liability caps, sponsored by physicians and businesses;

Question 4, sponsored in a hidden fashion by the trial attorneys, which purports to reduce everyone’s auto insurance rates, when in fact it stealthily undoes any past and future tort reform by solidifying itself as a state constitutional amendment to prohibit caps;

Question 5, another constitutional amendment, also sponsored by the trial attorneys, which deceptively purports to limit frivolous lawsuits. Its real purpose is the following provision, taken from the description provided by the Nevada Secretary of State: "The amendment also voids any changes made to Nevada law between January 1, 2004, and December 1, 2006, that decrease the dollar amount of damages persons may recover for losses and harm caused to them as a result of the negligent or wrongful conduct of another person [thus nullifying recent medical malpractice reform]. The amendment does not prohibit the Legislature from: (1) increasing the amount of monetary damages a person may recover caused by the negligent or wrongful conduct of another; or (2) repealing laws which limit damages. Any other changes to such laws are deemed void."

It should be clear that the last-named clause is very dangerous not only to Nevada doctors but also to other defendants both in Nevada and in the rest of the country, especially since trial lawyers can sometimes obtain venue in Nevada for cases that may have arisen elsewhere. A provision permanently banning legislative correction of liability excesses will make Nevada the next “judicial hellhole”­ on steroids. The problem is that few realize just how dangerous this proposal is. -- Donald C. Mohs, Jr., MD, Las Vegas, Nevada

For more on the Nevada initiatives, see my Wall Street Journal piece from Friday -- W.O.

Posted by Walter Olson at October 31, 2004 11:16 PM

Re number 5:

It's also rather obviously unconstitutional. How can an amendment be adopted to void legislation that may be passed in the future?

Posted by: yclipse at November 1, 2004 08:04 AM

What do you think the 1st and 2nd Amendments do? Any reasonable reading of the 2nd Amendment, in particular, would void all kinds of gun regulation laws (including some outright bans) - many of which actually have been passed and a few of which have actually BEN voided by the courts (a woefully small percentage, unfortunately).

Basically, it's defining a right to the current levels of liability money (or greater, of course).

Posted by: Deoxy at November 1, 2004 10:14 AM

who among us has not suffered at the hands of one or more members of the medical community. from rudeness to outright malpractice we have all likely been there. and here come the doctors of nevada crying to the electorate that they are beeing put out of business by their med. malpractice insurers. why dont they pool their resources and self insure themselves? why must they continually turn to the electorate to "fix" the mess that they have so willingly made? if the same situation in calif. is a fair model we can quickly find that the real cilprits are the insurance companies not the trial lawyers. they did the same whiny appeal to californians a couple of years ago and got award limits put in place. guess what happened to their malpractice insurance rates? you got it. they went down for the first year and now are skyrocketing again. but what the hell, the trial lawyers are an easy target (unless you have needed one lately)

Posted by: erd berful at November 2, 2004 10:08 AM

With regard to the last poster, (erd berful): We Nevadans aren't "whiney" doctors. We are just fed up being hunted for our insurance bounty, much as African elephants were valued for the ivory of their tusks. Frankly, I'd be happier if I could practice "bare" without a deep-pocket of gold for a trial lawyer to obtain--over my dead professional carcass. Of course, that means for my entire life, I could never possess any assets.

Trial lawyers have indeed made themselves an easy target. They troll for business with advertisements in the obituary section of our newspaper. Daytime TV exhorts "victims" to claim their rightful pots of gold from any and every type of perpetrator; every other billboard in town has the smiling face of one of those agents-of-justice-for-a-peice-of-the-action types. I lost count of how many "Did you take VIOXX? You may be entitled..." ads in the local media.

Yes, the Nevada lawyers made themselves an easy target. But I'm tired of being the target myself. What was my crime? I dedicated my life to helping others. Just because I'm fighting like hell to continue to do what I felt is my calling in life doesn't make me, or others like me "whiney". It makes me...an American.

Posted by: D. Mohs at November 2, 2004 08:17 PM