MINUTES OF THE

      SENATE COMMITTEE ON JUDICIARY

 

      Sixty-seventh Session

      May 12, 1993

 

 

 

The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 1:30 p.m., on Wednesday, May 12, 1993, in Room 224 of the Legislative Building, Carson City, Nevada.  Exhibit A is the Meeting Agenda.  Exhibit B is the Attendance Roster.

 

 

COMMITTEE MEMBERS PRESENT:

 

Senator Mark A. James, Chairman

Senator R. Hal Smith, Vice Chairman

Senator Lawrence E. Jacobsen

Senator Mike McGinness

Senator Dina Titus

Senator Raymond C. Shaffer

Senator Ernest E. Adler

 

GUEST LEGISLATORS PRESENT:

 

Senator Randolph J. Townsend

Assemblyman John B. (Jack) Regan

 

STAFF MEMBERS PRESENT:

 

Dennis Neilander, Senior Research Analyst

Sherry Nesbitt, Committee Secretary

 

OTHERS PRESENT:

 

Gary Hunter, Member of the Public

Michael J. Fischer, M.D., Chairman, Nevada State Medical          Association Government Affairs Commission

Lawrence P. Matheis, Lobbyist, Executive Director, Nevada State    Medical Association

Virginia Williamson, President, Nevada State Medical             Association Auxiliary

Marsha Berkbigler, Member, Nevada State Medical Association

  Auxiliary

Jean Myles, Member, Nevada State Medical Association Auxiliary

Carolyn Kwalick, Member, Nevada State Medical Association         Auxiliary

Donald S. Kwalick, M.D., State Health Officer, State of Nevada

Rob Calderone, Director, Juvenile Services, Washoe County

Susan Campbell, State of Nevada Department of Insurance

Elizabeth Breshears, Chief, State of Nevada, Bureau of Alcohol   and Drug Abuse

Bruce Pendleton, D.D.S., Member, Nevada Dental Association

Dennis Arch, D.D.S., Member, Nevada Dental Association

Ted Twesme, D.D.S., Member, Nevada Dental Association

Gary Mouden, D.D.S., Member, Nevada Dental Association

Mandy A. Canales, Representative, American Cancer Society

Carl M. Hebert, Attorney, Counsel, Nevada Dental Association

William R. Millsap, Lobbyist, Nevada State Education Association

Robert R. Barengo, Lobbyist, Amusement & Vending Operators of     Nevada

R.E. Burdick, Member, Amusement & Vending Operators of Nevada

Roberta (Bobbie) Gang, Lobbyist, Nevada Women's Lobby

Stephanie S. Tyler, Lobbyist, Nevada State Board of Dental        Examiners, Nevada State Chiropractic Association

James L. Wadhams, Lobbyist, Nevada Dental Association

Gorege F. McNally, Lobbyist, Nevada Trial Lawyers Association

David E. Rice, Lobbyist, District Health Officer, Washoe County    District Health Department

F. Gregory Betts, Lobbyist, Nevada Rural School District          Alliance College of Education

Bill Bradley, Attorney, Member, Nevada Trial Lawyers Association

Harvey Whittemore, Lobbyist, R.J. Reynolds Tobacco USA

Donna Turner, Representative, American Lung Association

Jerry W. Ash, Lobbyist, President, Nevada Hospital Association

Helen A. Foley, Lobbyist, Nevada Nurses Association

Paula Treat, Lobbyist, Nevada Judges Association

Ben Graham, Lobbyist, Nevada District Attorney's Association

 

 

 

 

 

 

Senator James opened the hearing on Senate Bill (S.B.) 192.

 

SENATE BILL 192:        Provides enhanced penalty for crimes committed against minors.  (BDR 15-1675)

 

Senator James reported, as chairman of the subcommittee, the action recommended.  He advised the committee and subcommittee had heard extensive testimony on S.B. 192.  He explained that S.B. 192 would have enhanced the penalties on crimes committed against children, requiring the court to double the penalties.  He stated that a number of crimes in Nevada are defined in terms of the nature of the victim, therefore the penalty is already enhanced.  Those crimes were excepted and consideration was given to having the bill address any crime against a child which is not already enhanced.  He stated this is the action he would have preferred.  However, given the nature of the potential fiscal impact, the subcommittee sought another way in which to take steps perceived to protect children from crimes.  It was hoped penalty enhancements could be considered at a later time.  He advised the amendment proposed by the subcommittee essentially replaces the prior bill.  He stated in 1961, the legislature enacted a requirement whereby sex offenders must register upon release from prison.  He advised it is mandatory that these persons register in the county where they are to reside.  The problem arises in that many times the registration is not accomplished, and the statutes provide no follow up provision.  He stated that, even though this information is available to law enforcement agencies, it is not available to other members of the public who may be charged with protecting children.  He advised the proposed amendment would do two things.  First, it would require that the releasing entity follow up and confirm that, within 72 hours of arriving at the place of intended residence, the sex offender is in fact registered, if the offender is a person who committed a crime against someone under 18 years of age.  If the registration does not occur, the law enforcement agency in that jurisdiction does the registration for the offender.  Senator James advised the language in this provision was taken from other states' statutes, including Washington state.  He advised that the vast majority of crimes of a sexual nature committed against children are committed by people who have had previous convictions for that type of offense.  Secondly, the information regarding the offender is then made available, not only to law enforcement agencies in the county of the offender's residence, but to the board of trustees of the school district.  The school district has the statutory authority, with discretion, to  release that information to teachers and others to protect the children in the community.  Senator James advised the committee believes this is a good addition to the law.  He stated this bill is not as far reaching as the Washington law, which was enacted in response to terrible crimes committed by a man who continually was arrested and released from the prison system.  The state could not keep track of where he was, and the people in charge of the schools in which many of the crimes were committed, were not aware that this person was residing in their midst.  This offender ultimately murdered at least 8 children.  The offender was put to death recently in Washington state.  Senator James advised that, with the passage of S.B. 192 Nevada will have a similar statute which does not go quite as far, but will be a good statute for the protection of the public and the children of the state. 

 

Senator Adler voiced his strong support of S.B. 192.  He advised that when he was working with the Department of Prisons, tracking of a pedophile was accomplished.  The department discovered that this person was a bus driver for crippled, Hispanic, non-English speaking children in Clark County.  He stated his belief that there could be no more inappropriate job for a pedophile than to be dealing with children who could not communicate and were crippled.  He stated this happened because of the state's failure to track the person. 

 

Roberta (Bobbie) Gang, Lobbyist, Nevada Women's Lobby, testified in strong support of S.B. 192.

 

Senator James reviewed the proposed amendment.  He advised the title of the act would be changed to read:

 

            An act relating to sexual offenses committed against minors.

 

Senator James confirmed that there was no further testimony on S.B. 192.

 

      SENATOR ADLER MOVED TO AMEND AND DO PASS S.B. 192.

 

      SENATOR SMITH SECONDED THE MOTION.

 

      THE MOTION CARRIED.  (SENATOR SHAFFER WAS ABSENT FOR THE VOTE.)

 

      * * * * *

 

Senator James opened the hearing on Senate Bill (S.B.) 421.

 

SENATE BILL 421:        Makes various changes relating to smoking of tobacco in public areas.  (BDR 15-1683).

 

Senator Randolph J. Townsend testified in support of S.B. 421.  He stated the bill is really a statement of public purpose and social policy.  It would change Nevada from a state which is smoking oriented, with specific areas designated for non-smoking, to one which states that smoking is an unacceptable practice in Nevada because of its health hazards, designating areas for those who choose to participate in a lawful activity.  He stated he was testifying because of the tremendous amount of information received in the Senate Committee on Commerce and Labor regarding statistics which directly affect the cost of health care, particularly through insurance premiums.  He advised that in 1990, the last year for which specific data is available, the state of Nevada spent nearly $680 million on tobacco-related hospitalizations.  He stated this directly affects a substantial portion of the state's population, and drains resources which could be used for other, more important areas.  He stated S.B. 421 is quite specific and is, in fact, a social policy change.  He stated his hope that the result of this debate would be that Nevada take a stand regarding the overall impact of health care knowing that smoking is a lawful activity, and try to accommodate in some way a policy which can be accepted in Nevada.  He advised testimony specifically addressing secondary smoke, its impact on the population at large, and on children, which part of S.B. 421 addresses.  He stated his belief that there are times when everyone must make tough decisions.  He hoped that eventually groups who do not currently support this bill would see the error of their ways, so that Nevada, which is looked down on for a number of things, can say positive things are also done.  He stated there are specifics in S.B. 421 dealing with school districts.  He stated his hope that the single most important element, aside from parents, who deal with children, is that people can see the importance of making school districts and facilities non-smoking, as a policy.  He stated if these entities choose to have a smoking facility, they can take that up at the local level.  He stated that the evidence as to the impact of smoking is so overwhelming that eventually everyone will have to admit what is in fact obvious to many; that this may be the single largest health hazard society faces in this country.  He related that many friends and colleagues of legislators have passed away as a result of their direct involvement with tobacco.  He stated there is no doubt that tobacco is a terrible addiction.  He has seen this happen in his own family, and has wished he could be more helpful to those who have the addiction.  He stated he supports smoking being lawful, however, he does not wish to be impacted by others' decision to impact their own bodies.  He believes S.B. 421 speaks to this.  He stated it is common knowledge that he is a bit over-zealous regarding health, and yet people kid him because he rides the elevator in the legislative building.  He stated one reason for this is because people are allowed to smoke in the stairwells, which to him is offensive.  He stated his belief, with all due respect to the staff and his colleagues, that if someone wants to smoke they ought to stand outside, and that this statement should be made in the legislative building.  He stated his hope that, whether it be with S.B. 421 or another bill, at some point the legislature takes a stand on this issue. 

 

Lawrence P. Matheis, Lobbyist, Executive Director, Nevada State Medical Association, provided testimony in support of S.B. 421.  He stated the Nevada State Medical Association is the prime sponsor of S.B. 421.  He advised the bill is intended to do three things.  First, the bill will clarify Nevada's public policy statement, of the legislative intent, which appears in Nevada Revised Statutes (NRS) 202.  He stated the specific intent of the bill is to make it clear that in Nevada, in public areas and buildings, all areas are presumed to be non-smoking, unless properly designated as smoking.  He added the theory is fairly straightforward.  There is a risk associated with smoking, for which people are not warned when an area is designated non-smoking.  The definition of public policy  proceeds from that premise, which is that all areas are non-smoking.  He stated this is accomplished by the revision of the legislative intent, in section 2.  This section states that smoking is prohibited in all areas unless specifically designated for smoking.  He stated the remainder of the section inverts wherever previously the language states "require the designation of non-smoking areas" to do the opposite. 

 

Mr. Matheis advised the second purpose of the bill is to address the impact of tobacco use and availability on minors.  He stated Nevada's laws which currently prohibit the sale and distribution to minors of tobacco products are not obeyed.  He advised the bill specifically addresses this problem in two places.  It prohibits cigarette vending machines from those public areas where minors are permitted to move freely.  It also deals with the statutory language which seems to permit school districts to designate areas for smoking.  He advised that the bill does not remove the ability of school districts to designate areas for teachers or adults to smoke.  The bill does seek to make it clear that in Nevada, minors are not permitted to smoke.  He advised there exists a statute which contains a prohibition on designated smoking areas in child-care facilities.  These designated areas must be such that the children are not going to be exposed to the toxic substances. 

 

Mr. Matheis stated the only other change is in section 4, the penalty section.  He did not believe the current penalty had ever been imposed.  He stated S.B. 421 would raise the penalty to $100 per violation, which may encourage some enforcement. 

 

Senator Jacobsen asked if there exist any statistics which show the percentage of smokers and non-smokers in any group.

 

Mr. Matheis stated these statistics did exist, and some of these will be cover by Dr. Fischer and other testimony.  He indicated that he had provided material to the committee which included a number of background papers containing various data.  He stated the material also included a summary of Nevada's laws, and a summary of a national study by the Environmental Protection Agency (EPA), published in January, 1993, regarding secondary smoke and its adverse impacts.  This includes a summary of what all the states have done regarding these issues, specifically those issues involving minors, and laws dealing with public areas around the country. 

 

Michael J. Fischer, M.D., Chairman, Nevada State Medical Association Governmental Affairs Commission, provided oral testimony in support of S.B. 421.  A copy of Mr. Fischer's entire verbatim testimony is attached as Exhibit C. 

 

Senator James asked if all of the Nevada statistics cited regarding the high lung cancer rate and deaths from smoking are all from people's activities in Nevada, or from people who move to Nevada.  He wondered how much of Nevada's bad health statistics result from people coming here to retire and who have developed their health problems in other states.

 

Dr. Fischer responded that all Nevada residents have had opportunities to go into public places, especially casinos.  He stated his belief that if a person is not a smoker, that person will go home and wash his or her clothes.

 

Senator James reiterated his question.

 

Mr. Matheis responded some data has included this information.  He stated the effects of their health conditions are frequently due to a lifetime of activities which they will carry on when they move to Nevada.  He advised the costs of treating those conditions are a Nevada problem. 

 

Senator James asked if someone is a smoker, how long it will take that person to develop related conditions.  He asked specifically if a person smoked, for example, from ages 18 to 35 and then quit, would that period of smoking have the deleterious effects mentioned later in life?

 

Dr. Fischer replied that is an excellent question, for which he wished medicine had an answer.  He stated there is no doubt that tobacco causes cancer in humans.  The question is how long will it take in each individual for the tobacco product to cause a cancer.  He stated this is something for which the medical profession does not have an answer, and the answer to some degree the answer would depend on the cure for cancer.  He advised as certain types of things happen to cells in the body, different individuals react in different ways.  He stated patients are seen in hospitals who have smoked for 3 and 5 years who develop pulmonary problems.  These patients frequent the hospital 3 to 10 times per year.  These people eventually become uninsured, at which time the state ends up paying for the hospitalizations.  He stated he did not believe there are any true facts which say if a person smokes cigarettes for 2 years, or another specified period of time, that person will get cancer.  It is different for each individual depending on how their immunologic system is capable of handling the assault of a carcinogen.

 

Mr. Matheis advised Dr. Kwalick, the State Health Officer, would be able to report on longitudinal studies of cancer in Nevada.  These studies have been done by the Health Division.  He also advised a representative from the cancer society, who was present, could provide data in this respect.

 

Senator James asked how the proposals in S.B. 421 compare to how other states deal with this issue.

 

Mr. Matheis stated all of the states' laws are evolving, but Nevada is perhaps not in the most progressive end of the evolutionary stage.  He stated his belief that S.B. 421 would move Nevada considerably forward in this regard.  He stated the other states range quite broadly, depending on the activity and strength of the local community health departments and services.  He said, for example, in California there exists a fairly strict law, which the proposals of S.B. 421 moves towards, but also there are some communities in California with exceedingly strict standards, which Nevada is nowhere near.

 

Senator James referred to Dr. Fischer's testimony regarding eventually eliminating smoking.  He asked if this is really the policy being pursued with S.B. 421.  He stated his belief that there are two very divergent policies.  One uses the law in order to attempt to stamp out smoking, by making it so difficult it is eventually eliminated through compelling people not to smoke and harm themselves.  He stated he did not see this policy in S.B. 421.  He advised the other policy is if people understand the risks and still want to smoke they must bear the consequences, but those who choose not to smoke are not subjected to cigarette smoking.  He asked for clarification on which policy the legislature is being urged to adopt.

 

Dr. Fischer stated he believed the second point was the one about which S.B. 421 speaks.  He stated, however, there is no doubt that the elimination of tobacco products from the public would be beneficial for everyone.  He advised that every person is tied into the payment system of health care, especially as the direction proceeds toward universal concepts.  He stated that, as this occurs, everyone will end up footing the bill for those who elect not to be healthy, by using known carcinogens.  His understanding of the purpose of S.B. 421 is to eliminate passive smoke from everyone who does not wish to partake and to prohibit minors from the purchase of tobacco products, and put cigarette machines in a place where minors do not have access to them.  He stated in addition, S.B. 421 will clarify Nevada's public policy that it is acknowledged that tobacco is a legal product, legally available, and that adults can make a choice regarding its use.  He stated his belief that public policy should dictate that people should have the advantage of being warned regarding areas designated for smoking, and that people can make the choice regarding exposure.  He stated that this bill in no way changes the ability of people to make that choice, but does say something about how public areas in the state will be viewed. 

 

Senator James asked if it has been established as a reasonable medical certainty that all of the health problems, mentioned by Dr. Fischer, which come from smoking are also associated with secondary smoke.

 

Mr. Matheis stated this is not always true.  He advised the EPA was very careful to only link it where the medical evidence was very strong.  He stated Dr. Kwalick can address this, and that the summary of the EPA report is included the material provided to the committee.  He advised the EPA has linked the effects of secondary smoke to those specific studies where it has been seen that side-stream environmental smoke has demonstrated an increased risk of certain medical conditions.  The EPA has left out of the list other conditions where medical evidence is still equivocal.

 

Senator James stated it appeared, from a layman's point of view, that a person could be more likely to develop a problem from secondary smoke if they grew up in a house where someone smoked or sat next to a smoker at work, as opposed to someone walking up a stairwell where smoking is allowed, or someone in a restaurant smelling smoke.  He asked if medical research has been done, and if it has been found in what environment secondary smoke has been deemed to have caused the medical problems. 

 

Mr. Matheis stated page 2 of the booklet included in the handout has a summary of the EPA study on those major findings.  He stated the ones which are interesting are those in children.  It has been demonstrated that in children residing in homes of smokers, respiratory tract infections, fluid in the middle ear, upper respiratory tract distress reducing lung functions, and increased asmatic symptoms have been found.  He stated in adults it had been shown that passive smoke has been responsible for approximately 3,000 lung cancer deaths.  He advised heart disease has been left out of the summary, because data is less specific in that area. 

 

Senator Adler referred to language in section 1 , ". . .no cigarette machines may be placed in a public area. . .if minors are permitted access to the area."  He asked what areas would that afford for cigarette machines, and would it have to be a separate area.

 

Mr. Matheis stated it would have to be an area subject to monitoring, preventing a minor's access.

 

Senator James referred to bars as falling under this description.

 

Senator Adler pointed out that minors have access to bars.

 

Virginia Williamson, President, Nevada State Medical Association Auxiliary (NSMAA), testified in support of S.B. 421.  She stated her organization is comprised of physicans' spouses.  She advised much of her proposed testimony had been covered by previous speakers.  She stated the NSMAA supports S.B. 421 as a positive step in the health of Nevadans.  The organization is especially concerned about access of tobacco to minors and availability for use, and especially supports those restrictions.

 

Harvey Whittemore, Lobbyist, R.J. Reynolds Tobacco USA, provided oral testimony.  He stated he wished to put on the record that R.J. Reynolds is very concerned regarding a couple of components of S.B. 421.  He advised that, with the indulgence of the chairman and the committee, he would like to present a full picture at a more appropriate time. 

 

Senator James advised Mr. Whittemore he would have an opportunity to present his views, as the committee would not be voting on the measure at this meeting.

 

Donald S. Kwalick, M.D., State Health Officer, State of Nevada, provided oral testimony in support of S.B. 421.  Dr. Kwalick presented to the committee several proposed amendments, a copy of which are attached as Exhibit D.  Dr. Kwalick explained each amendment.  He stated that, with the substance of S.B. 421 and the proposed amendments, the bill will protect children and non-smoking adults from the harmful effects of environmental tobacco smoke.  He stated this will do more to prevent chronic diseases than any future action the legislature may take, except to address the increase in tobacco taxes. 

 

Senator Adler questioned the amendment to section 3, allocating fines to the Health Division.  He stated the Nevada constitution states all fines go to education within the school districts.  He stated he did not believe fines could be allocated to a state department. 

 

Dr. Kwalick stated the wording could be worked out differently to distribute the funds generated by violators to education.

 

Senator Jacobsen asked if federal funds which may have come in the form of grants have been jeopardized due to Nevada laws not being strong enough to curb smoking. 

 

Dr. Kwalick stated his belief that there had been jeopardy of certain funds which the Bureau of Alcohol and Drug Abuse has available.  He stated that if the provision in Nevada law to enforce tobacco availability to minors is not enforced, the state can lose a large amount of money slated for alcohol and drug abuse.

 

Senator Jacobsen asked if Dr. Kwalick saw more emphasis at the federal level being placed on smoking.

 

Dr. Kwalick replied he believed there are funds becoming available to attempt to have an infrastructure in every state which will deal on a daily basis with chronic disease control and tobacco.  He stated tobacco use is the nation's number one preventable disease problem.

 

Dr. Kwalick stated he would attempt to answer questions which Senator James had previously asked.  With regard to residency status and chronic diseases occurring in older people, he stated this has been seen in Nevada.  He advised many states have high retirement percentage populations, and Nevada is the highest state relevant to tobacco use and number one in cancer lung deaths and obstructive pulmonary disease deaths.  He stated this is, without question, due to smoking. 

 

Senator James asked if this referred to tobacco use by residents.

 

Dr. Kwalick stated these are all resident deaths.  He stated, in response to length of time to develop diseases, it can be 25 to 40 years before a person develops chronic obstructive pulmonary disease, lung cancer, or other diseases related to tobacco. He stated the main reason for S.B. 421 and any other controls is to stop children from beginning to smoke.  This is a very addictive activity, and once a person is addicted, that person will remain so for the rest of their lives.  He advised that if the fact that children have been prevented from beginning the use of tobacco products, an accomplishment will have been made.

 

Elizabeth Breshears, Chief, Bureau of Alcohol and Drug Abuse, presented oral testimony in support of S.B. 421.  She stated that, by passing this legislation which restricts access of tobacco products to minors, prevention of the loss of up to $2.2 million in federal funding for alcohol and drug abuse treatment programs may be accomplished.  Ms. Breshears distributed to the committee information with regard to federal legislation.  A copy of this information sheet is attached as Exhibit E.  Ms. Breshears stated almost 50 percent of the Bureau and Alcohol Drug Abuse's treatment and prevention budget comes from a single source.  That source is the block grant through Substance Abuse and Mental Health Services Administration (SAMSA).  She advised SAMSA was reauthorized by Congress in 1992.  She discussed the impact of section 1926 on future programming in the state of Nevada.  She advised that section of Public Law 102-321 covers the state laws regarding sale of tobacco products to individuals under the age of 18 years.  Ms. Brashers reviewed the three major portions of section 1926.  She advised that as to the relevant law, Nevada has statutes in place so as to not jeopardize federal funding.  She advised, with regard to section b, enforcement, the legislation states:

 

            . . .the State involved will enforce the law described in subsection (a) in a manner that can reasonably be expected to reduce the extent to which tobacco products are available to individuals under the age of 18.

 

Ms. Breshears advised that, in addition to the above requirement, her office must submit to the secretary of the department of health and human services, a report.  The report must describe the activities carried out by the state, the extent of success the state has achieved in reducing the availability of tobacco products, and the strategies utilized by the state in enforcing the law.  She stated one of her concerns is a survey done by a public interest research firm.  She stated the survey included all states and revealed that, in Nevada, 97 percent of minors who attempt to purchase tobacco products in Nevada are able to do so. 

 

Senator James asked the percentages of other states.

 

Ms. Breshears replied she did not have the national figures, as the survey was done state by state.  She advised that section c of the regulations is non-compliance, which provides the teeth for the federal law.  She stated that if Nevada cannot demonstrate enforcement or at least improvement of enforcement of the law, Nevada will stand to lose up to 10 percent of the grant.  This percentage equates to a little more than $553,000.  Additionally, Nevada could lose up to 40 percent or $2.2 million over the next 3 years. 

 

Ms. Breshears advised that, throughout Nevada, members of boards of treatment programs are frequently law enforcement officials.  She has been told that when law enforcement officials weigh the manpower of arresting a minor for purchasing a pack of cigarettes, versus arresting a cocaine dealer, the official is less than receptive.  She stated, therefore, that lines 3 and 4 of S.B. 421, referring to vending machines for minors, is of critical importance for reducing a minor's access to tobacco.

 

Senator James asked if the 97 percent of minors referred to in testimony accessed tobacco products from vending machines. 

 

Ms. Brashers responded the access was not only from vending machines.  She stated parents to whom she has spoken have told her their children could tell her where they can buy cigarettes.

 

Senator James asked if Ms. Breshears was referring to stronger enforcement regarding stores as well.

 

Ms. Breshears replied that this is another option.  She advised, however, that if the law is not enforced, and in fact is almost unenforceable, one of the few options is to restrict access in other ways.  She stated she was very concerned that Nevada not be able to demonstrate progress.

 

Senator James asked if she believed S.B. 421 would demonstrate this progress.

 

Ms. Breshears stated her belief that the bill would be a wonderful first step.

 

Senator James asked for and received confirmation that Ms. Breshears believed that, as a matter of law, S.B. 421 would comply with section 1926 of the federal law.

 

Ms. Breshears added the bill would comply in the initial years; however, approximately 2 years from now the issue would have to be reviewed again.  She reiterated her agency is required to demonstrate progress.  If there still remain problems after a period of time, more will have to be done.  She stated that tobacco is a gateway drug.  This is not to imply that tobacco causes children to use drugs, but the risks associated, and the chances that a youth will go on to other drugs more than double if tobacco is used.  She stated another option would be to step up enforcement and fines, to make it worthwhile to enforce the statutes. 

 

Senator Jacobsen asked if price is a factor.

 

Ms. Breshears replied that price is definitely a factor.  She said if $1 per pack was added to the current price, a definite decrease in smoking would be seen.

 

Senator Jacobsen stated, being a non-smoker, did not see how juveniles could smoke when they can buy a coke and hamburger cheaper than a pack of cigarettes.  He stated he has toured a number of manufacturing plants and was impressed as to how clean the facilities were and the number of people employed.

 

Senator Adler stated regulations in regard to placement of vending machines would not stop teenage smoking.  He stated there exist fairly restrictive laws on the purchase of alcohol, which is not sold through a vending machine, and teenagers seem to have ready access to alcohol.

 

Ms. Breshears stated one difference with alcohol, it is frequently reported that an adult has purchased the alcohol for the minor.  She stated the feedback she has received regarding cigarettes is that minors purchase the tobacco themselves.

 

Senator Adler asked if it would not be better to have an identification requirement for the purchase of cigarettes, such as that currently in effect for alcohol.  He asked if this would not be more effective than trying to move the vending machines.

 

Ms. Breshears replied this would be one avenue of effectiveness.  She stated that since there already exists a law which is not being enforced, adding the requirement of identification would not help solve the problem.

 

Senator Adler stated it would help, as this would activate the same penalties as those imposed regarding purchase of alcohol.  He stated that currently, all store clerks have the defense that they did not know the person is underage, because identification is not required.

 

Ms. Breshears agreed this would be a possible solution.  However, she stated she is still concerned regarding the placement of vending machines.  She stated her concern arises partly due to a conference currently taking place in Reno concerning prenatal addiction.  She advised that several individuals at that conference walked into a lobby area with her and could not believe the presence of a cigarette machine.  She was told that Hawaii, for example, would never have a cigarette machine in a place accessible to minors.  She advised that studies are being conducted relative to prenatal addiction and cigarettes being more pervasive and more harmful than cocaine and other drugs.  She stated, therefore, anything that could be done would be a benefit.

 

David E. Rice, Lobbyist, District Health Officer, Washoe County District Health Department, provided oral testimony in support of S.B. 421 and the amendments suggested by Dr. Kwalick.  He stated he also supports the testimony of the Nevada State Medical Association.  He stated his department's mission is to promote health and prevent disease.  He further stated that S.B. 421 is truly a disease prevention and health promotion effort. He stated his belief that enforcement provisions in the statutes need to be clarified.  He stated that the state needs to realize that a concern exists that the activities of the unfunded enforcement component of S.B. 421 were inherited by local health districts.  He also stated his belief that clarity is necessary to define the violation of the statute's provisions as a misdemeanor.  He stated agreement with Dr. Kwalick that, even though there may be a legislative issue or problem of dedicating funds, the revenues should be dedicated to health promotion.  He stated that, if this cannot be accomplished in S.B. 421, it should be done elsewhere.  He advised there are current infrastructural needs.  He stated his belief that there is one health educator at the state Health Division level who is currently acting director of the maternal and child health division.  Mr. Rice's concern is that infrastructure needs to support health promotion activities to get people to change their life styles. 

 

Mr. Rice stated, regarding clarification of enforcement, recognition is needed regarding the capacity at the local level and in particular the local health districts in the enforcement capacity.  He stated his belief that this is a community problem and is stated in NRS 444.635(4).  He advised this is a sanitation section for public health, and deals with all health officers, game wardens, police officers, sheriffs and their deputies, and other peace officers in the state of Nevada.  The statute states that these officers shall, within their specific jurisdictions, enforce the provisions of the section.  Mr. Rice stated all help available is needed to enforce these activities.

 

Senator James asked if Mr. Rice would support the bill if it was  changed to say that the local government can make more stringent restrictions.

 

Mr. Rice replied that he would, and that it is up to the local level to institute stronger activities.

 

Senator James asked if Mr. Rice would anticipate advocating this activity in Washoe County.

 

Mr. Rice replied that as District Health Officer in Washoe County, he would support local jurisdictions strengthening their non-smoking policies.

 

Senator James asked what type of restrictions Mr. Rice would adopt, beyond those in S.B. 421.  He asked if Mr. Rice would attempt to outlaw smoking in places other than public areas.

 

Mr. Rice stated his belief that the department would need to target areas in which secondary smoke affects others who do not have a choice, to make a smoke-free environment wherever possible. 

 

Senator James asked if this would be accomplished with the enactment of S.B. 421. 

 

Mr. Rice stated that as the bill currently stands, it does not address all public areas.

 

Senator Jacobsen asked, if the price of cigarettes could be increased, where Mr. Rice believed those funds should be spent.

 

Mr. Rice stated his belief that these funds should be expended in the infrastructure to support non-smoking activities through the state Health Division.  Additionally, he stated the funds should be directed to the Department of Education.

 

Senator Jacobsen asked if some of the funds should be spent to segregate smokers and non-smokers.

 

Mr. Rice stated his belief that the resources could be used in that way, but the largest effect for the dollar would be in changing lifestyles.  He advised that would require health professionals and educators.

 

Senator Jacobsen stated his belief that everyone wishes to save lives, but if a person does not want their life saved it is difficult to force that person to change.

 

Mr. Rice stated that the person should have the information necessary in order to make that decision.  He advised that currently the community does not have that information, or people would change their lifestyles. He stated that, even with the best information available, not everyone will change their lifestyles, but some will.  This will save the state a considerable amount of money.

 

Senator James stated his concern regarding the proposed amendment which would allow local governments to adopt more stringent regulations.  He stated his belief that a policy similar to that advocated by Mr. Rice could be adopted to do away with smoking, rather than a policy to protect the non-smoker.  He viewed S.B. 421 as being directed toward protecting non-smokers, and that was how the bill has been stated to the committee. 

 

Mr. Rice stated he believed the largest thrust of S.B. 421 is to minors.

 

Senator James stated he understood this, but asked if Mr. Rice would advocate, at the local level,  a policy to do away with smoking.

 

Mr. Rice replied that he would support this, and that he believed both policies are needed.

 

F. Gregory Betts, Lobbyist, Nevada Rural School District Alliance College of Education, provided oral testimony in support of S.B. 421.  He advised his organization would suggest one minor amendment.  He stated on page 2, line 25 of the bill, the words "who are minors" were added.  He advised that, to his knowledge, no school district in the state has a designated smoking area for students.  He stated that years ago, some school did have these areas.

 

Senator James asked how long ago this was the case.

 

Mr. Betts replied that Senate Bill (S.B.) 25 of the Sixty-sixth Session did away with any student designated smoking areas in schools.  He stated that if this bill had passed the way it was introduced, there would have been no smoking in public schools by anyone in the state of Nevada.  He advised an amendment to that bill, on the Senate side, allowed for designated areas for staff members.  He stated the words "who are minors" should be removed from S.B. 421 to remove any possibility of a suggestion to students that a designated area would be set up for them.  He stated at present the bill could be read that way.

 

Senator James asked for and received confirmation that Mr. Betts' concern was in regard to the possibility that a student over the age of 18 years would be attending a public school.

 

Senator Jacobsen asked what percentage of teachers in Douglas County Schools are smokers, in comparison to the students.

 

Mr. Betts stated he had no statistics which would relate the teacher percentage to students.  He stated his guess would be that a higher percentage of students are smokers than are teachers.  He advised there are several schools in the district in which no staff member is a smoker and therefore no designated smoking area is needed.  He stated that only if a request is made by a staff members, is an area designated for smokers.  He stated his belief that a relatively small number of teachers, in comparison to the general population, are smokers.

 

Senator Jacobsen asked if there is any pressure from the teachers in some of those schools to provide a smoking area for themselves.

 

Mr. Betts stated that where any teacher has asked, the current law requires this to be done.  He advised that most schools do have these areas, as at least one teacher has made the request.

 

Mandy Canales, Representative, American Cancer Society, expressed on behalf of the society, support of S.B. 421 and the amendments proposed by Dr. Kwalick.  She advised the suggestion of an additional amendment to require identification would also be supported by the society.  She stated it is important that the state of Nevada wholeheartedly look at the issue of limiting access of minors to tobacco.  She advised the society has seen a problem with the access of minors through projects undertaken, including Project SCAN, to be conducted in an African-American community in the Clark County area.  She stated the society has had major support from this community as well as from the local police departments who provide enforcement in that area.  She added that it is important that minors have limited access, as currently, purchases of tobacco can be made from convenience stores and vending machines, and minors have had no problem in being able to obtain these products.  She stated that the cancer society is aware that cigarette smoking is a gateway drug.

 

Donna Turner, Representative, American Lung Association, provided oral testimony in support of S.B. 421, and the proposed amendments.  She stated she works every day with people who carry oxygen tanks around with them as a result of smoking.  She added, in response to one of Senator James' questions, that she moved to Nevada after she quit smoking.  She advised she quit over 10 years ago and is still addicted.  She stated the longer it has been since she smoked, the more she is sensitive to cigarette smoke.  She advised that former smokers are addicts and if they have to be around cigarette smoke they are exposed to smoke which was the cause of their substance abuse.  She stated that she cannot sit with someone who is smoking without getting irritable, and this is because her body still craves tobacco.  She advised that she recently observed an exercise class provided by the association.  Many of these people are former smokers who are now suffering from chronic obstructive pulmonary disease.  She stated she has seen people with this disease leave the hospital with an oxygen tank and light a cigarette.  She stated this is the extent of the addiction to the substance.  She advised that the association hears, every few months, of a person who is oxygen dependent in order to breathe, who has blown him or herself up by smoking and forgetting to turn off their oxygen.  She stated it is possible to prevent this from happening to the next generation.  She stated that she began smoking in high school before designated areas were provided.  She was caught and was proud of being the only person in her high school to get caught smoking and not get expelled, because she was an honor student.  This reinforced her belief that she was doing something great, and this belief continued until she tried to quit smoking. 

 

Ms. Turner advised she also works with children who have asthma.  While it cannot been proven that childhood asthma is caused by smoking, it has been established that exposure to smoke makes it worse.  She related a story told to her by a doctor regarding second-hand smoke.  A child had severe asthma, and the parents both smoked and owned a cat.  The child's doctor advised the parents to get rid of the cat and to not smoke around the child.  The parents did not take this advice seriously, or perhaps they did and the addiction was too strong.  The child died.  Ms. Turner stated that there is a plan for a smoke-free America, and everyone pays for others' smoking.  She advised that some irreversible damage is done from smoking and is never reversed.  She advised that, contrary to popular belief, the number of smokers in the United States is now growing, after a period of decline.  She stated that anything that can be done to prevent children from smoking is worthwhile.  She agreed that education of the community is extremely important.

 

Senator Jacobsen asked for and received confirmation that S.B. 421 only speaks to tobacco products.  He asked if there are any other products which produce smoke injurious to health. 

 

Ms. Turner stated that tobacco products are by far the worst problem currently facing the country.

 

Jerry W. Ash, Lobbyist, President, Nevada Hospital Association, provided oral testimony in support of S.B. 421.  He stated that 30 percent of Nevadan's smoke, and 70 percent do not.  His association believes, in terms of designated areas, those who smoke should have designated areas, not those who do not.

 

Senator Jacobsen asked, regarding to patients checking into hospitals, if any consideration is given to whether or not they are smokers. 

 

Mr. Ash responded that he was not certain in terms of entry into the hospital.  He stated that studies of health benefits show that those persons having at least three health risk factors consume 80 percent more in health benefits than do those who have no health risk factors.  He advised that statistics show that smoking has an effect, not only on a person's own health, but on the cost of health in terms of insurance.

 

Senator Jacobsen asked if a patient is a smoker, does the hospital have the right to restrict that person from smoking in the hospital, and if so, would there be any detrimental effects of that person being forced to refrain from smoking.

 

Mr. Ash replied that most hospitals have become smoke-free areas.  He stated that up until recently this has been by choice, and most recently by regulation.  He advised the only time a patient is allowed to smoke is when a physican determines it would be detrimental to the person's condition to prevent them from smoking.

 

Senator Jacobsen stated he asked the question regarding a person who would become so psychologically upset without a cigarette so it would interfere with his or her treatment.

 

Mr. Ash stated this is quite possible.

 

Stephanie S. Tyler, Lobbyist, Nevada State Chiropractic Association, testified that the association strongly supports S.B. 421, and will support any legislation which addresses such a strong health concern as smoking.

 

Helen A. Foley, Lobbyist, Nevada Nurses Association, testified that the association supports S.B. 421.

 

Gary Hunter, Member of the Public, presented oral testimony in opposition to S.B. 421.  Mr. Hunter stated he was on annual leave from his job, and was testifying on behalf of Capital Vending, a company owned by his wife.  He stated Capital Vending is a local business which would be detrimentally affected by the passage of S.B. 421.  He advised the company's only objection is to the section in the bill concerning cigarette vending machines.  He stated he was not sure where the line is drawn in the bill between permissible and impermissible locations for the machine.  He advised that Capital Vending does not promote the sale of cigarettes to minors.  In locations such as restaurants, they have placed stickers on the machines.  The stickers state "It's the law.  You must be 18 to buy tobacco products."  Mr. Hunter stated the company also distributes pamphlets to operators of businesses in which the vending machines are located.  A sample of this pamphlet is attached as Exhibit F.  Samples of the stickers and pamphlets were distributed to the committee.  Mr. Hunter stated it is made generally known that Capital Vending does not want minors purchasing cigarettes.  He stated they do not feel their machines are contributing to the problem.  He recognized that minors could sneak into an establishment and purchase cigarettes.  He stated his belief that these instances are very minimal, and that those same minors, if they could not obtain cigarettes from a machine, would find another way to obtain them.  He stated the company does not put machines out on street corners or in open locations.  He advised the machines are located primarily in bars and restaurants.  He stated that if banning cigarette machines would stop young adults from smoking, he would testify in favor of S.B. 421.  He stated his belief that this will not be the case.  He stated S.B. 421 is singling out vendors in an attempt to cure a problem which will not be cured.  He stated the bill will cause every vendor in the state to pull equipment and lose sales, the majority of which are to legal adults.  He advised the bill will have a major financial impact, not only to the vendor but to the location, as each location is paid a commission of sales.  He stated the answer to the problem is educating young adults on the dangers of smoking.  He stated he and his wife have raised six children and none smoke.  The reason they do not smoke is because they do not want to smoke.  This decision has nothing to do with availability or the money.  His children realize that the effects of smoking are bad.  He stated when his children were growing up they had plenty of access to cigarettes at home and at the business, and made the choice not to smoke.  He stated that in raising the children he realized they could obtain liquor and drugs.  He stated that both liquor and drugs are available to young people today, and neither is sold through vending machines.  He advised the schools and law enforcement agencies are doing a great job on curtailing drug use.  He stated, however, his belief that banning cigarette machines will not stop children from smoking.  If they want to smoke they will continue, and the ones who want to use liquor and drugs will continue to obtain them.  Education is the answer for all three.  Mr. Hunter advised that a survey made in 1989 showed that only 9 percent of teenage smokers purchased the cigarettes from vending machines.  He does not smoke, but recognizes the rights of smokers.  He stated that Capital Vending is selling a legal product which contributes millions of tax dollars to the state of Nevada and the federal government.  He stated that Nevada's cigarette tax rate is 35 cents per pack, one of the highest tax rates in the nation.  He stated whether a person likes or dislikes cigarettes is immaterial.  Tobacco is a legal product, and the people who wish to smoke them should be allowed to do so.  He advised the vending machine business has been on a decline for several years.  The cost of the product and taxes have driven the prices up.  He stated most vendors have their warehouses full of used machines, and equipment manufacturers have all but stopped the production of cigarette vending machines.  He stated that cigarette vending is doomed, and to require such a severe loss of sales to small companies such as Capital Vending could put them out of business.  He stated that the sad thing is that is this occurs, the wrong area will have been targeted.  He stated the market which should be targeted is the one supplying 91 percent of the sales to minors.  He advised that in another national statistic, cigarette vendors only account for 5 to 6 percent of total cigarette sales.  Therefore, the contribution of vending is very minimal.

 

Mr. Hunter advised that Capital Vending has four employees.  The company pays sales tax, privilege tax, property tax, personal property tax, business tax and income tax, together with Employment Security Department, State Industrial Insurance System and Social Security contributions.  He advised the business has licenses in Washoe County, Lyon County, Reno, Sparks and Carson City.  He stated Capital Vending's investment in equipment which would be removed is considerable.  He further stated that the company's investment in the state is substantial.  He requested that S.B. 421 be amended to remove the provision in section 1 dealing with cigarette vending machines.

 

Senator Jacobsen asked if an increase in the cost of a package of cigarettes affect Mr. Hunter's business.

 

Mr. Hunter replied that Congress has before it a bill to increase the federal tax on cigarettes by $7.60 per carton.  He stated the tax is currently $2.40 per carton.  He stated he has been advised that if this tax passes, there will be a 26 percent decline in consumption.  He has also been told that the tax raise stated is probably conservative.  He replied to Senator Jacobsen's question by stating that if this tax goes into effect, the cigarette vending business will be non-existent.  The vendors would not be able to inventory that type of equipment and handle the business for the minimal profit realized.

 

Senator James asked the source of the statistic, quoted by Mr. Hunter, that 91 percent of cigarettes are obtained in stores.

 

Mr. Hunter stated this was taken from a survey done by National Automatic Merchandising Association.  He advised this survey referred to a 1989 research response study.

 

Senator James asked Mr. Hunter to provide him a copy of this survey, which Mr. Hunter agreed to provide.

 

Senator James asked if there is not a law which states alcoholic beverages cannot be sold in a vending machine.  He stated his belief that S.B. 421 is less restrictive than would be a law prohibiting sales in machines. 

 

Mr. Hunter stated section 1 states:

 

            Cigarette machines may be placed in a public area described in section 1.

 

He stated this section also refers to public elevators, which to his knowledge do not exist.  The section also refers to a public building.

 

Robert R. Barengo, Lobbyist, Amusement & Vending Operators of Nevada (AVON) responded to Senator James' question regarding the survey.  He stated he had spoken with the sponsors with the bill, analyzing sections of the bill.  He stated his concern regarding two sections.  He advised that the sponsors have indicated to him that the intention of the bill is to discourage smoking among young people, and that sections a, c, e, f, g and h are the sections of the proponents' main concern.  He stated public buildings referred to in section b would be those such as the legislative building.  He stated section d refers to hotels and motels.  He advised that neither of those are areas in which children would be readily expected to frequent, looking for cigarettes.  Mr. Barengo advised the sponsors of the bill would agree to an amendment which would apply only to section a, c, e, g and h. 

 

Senator James asked for and received confirmation that this would take care of the concerns of Mr. Barengo's association.  Senator James stated that it would cover most areas, such as child care centers or school buses.  He asked for and received confirmation that vending machine operators would not want to place machines in these areas.

 

Senator James asked what is meant by the phrase, ". . .in a motel or hotel when so designated by the operator."

 

Mr. Barengo replied that the bill is now changing presumptions.  He stated it previously read, ". . .except as otherwise provided in subsections 5 and 6, the smoking of tobacco in any form is prohibited done in. . ." " . . .a hotel or motel when designated by the operator."  He stated this would mean smoking would be prohibited if the operator designated it as such.  He stated there are currently two hotels in Nevada which are non-smoking hotels, both of which are in Reno.

 

Senator Adler stated he had compared S.B. 421 to the remainder of the law.  He advised the current statute states that a child of any age can buy cigarettes with a note from his or her parents.  He stated the note is filed with the pharmacist or other establishment where the child buys the cigarettes from.  The cigarettes are supposedly for use by the parent or guardian.  He stated also that a child is confined in the Caliente Youth Training Facility may have cigarettes if they are 16 years of age or older, as long as that child has a note from his or her parent or guardian.  He stated he believed there are problems in the statutes, other than those addressed by S.B. 421. 

 

Mr. Barengo stated the previous testimony had not been directed at vending machines.  An assumption had been made that vending machines are a place where minors buy cigarettes.  He stated, however, that cigarette purchases are very price sensitive, and a vending machine is the highest priced place to purchase cigarettes.  He advised cigarettes in vending machines are nearly $1.00 higher than anywhere else.

 

Senator James asked if Mr. Barengo would agree to an amendment which would allow vending machines in the areas of public buildings, hotels and motels.

 

Mr. Barengo confirmed his organization had no problem with this proposal.

 

Assemblyman John B. (Jack) Regan, Assembly District 19, presented oral testimony.  He wished to state for the record that when commercial airlines did away with smoking in the rear of the aircraft, they did not prohibit smoking in the flight deck.  He stated he also wished to remind the members of the Senate Committee on Judiciary that in fiscal year 1989-1990, the tobacco industry in Nevada contributed over $40 million in taxes.  In fiscal year 1990-1991, the contribution of tobacco to the state tax was $50,296,000.  He advised walking very gently around the tobacco industry, considering Nevada's tax situation. 

Senator James confirmed there was no further testimony on S.B. 421.  He advised S.B. 421 would be brought up in a future committee hearing, as there are additional people who wish to testify and who are not aware of the proposed amendments.  He closed the hearing on S.B. 421.

 

The hearing was opened on Senate Bill (S.B.) 423.

 

SENATE BILL 423:        Authorizes court to appoint advisory panel of experts to review claim of dental malpractice.  (BDR 3-985)

 

Senator Randolph Townsend provided oral testimony.  He stated his reason for testifying had nothing to do with the merits of S.B. 423, but rather the issue of consistency in policy.  As  chairman of the Senate Committee on Commerce and Labor, Senator Townsend advised that the committee has jurisdiction over all boards and commissions.  He further advised that committee has tried desperately to be consistent in the treatment of all licensees. This includes whether they are covered by the open meeting law, how their disciplinary proceedings are handled, the number of people on their board, their salaries, and to attempt to have a consistency throughout the pertinent statute.  He advised that, since the Senate Committee on Judiciary has jurisdiction over licensing boards, primarily those in which attorneys are licensed, the committee may see individuals attempt to make changes which only affect their particular profession.  He stated the legislature has substantially, in the past 10 years, turned down those requests.  He stated S.B. 423 contains a request to add a provision to the statute for a particular profession which is only in one other section.  He asked the committee to consider the consistency of this request. 

 

Senator Adler asked if S.B. 423 is consistent with other sections.

 

Senator Townsend replied there is only one other board, the Board of Medical Examiners, who has a medical/legal screening panel, and that the provisions requested in S.B. 423 are different from that panel.  He stated he did not believe that any other board had the type of approach requested.  He advised the medical/legal screening panel is a product of the Senate Committee on Judiciary, rather than the Senate Committee on Commerce and Labor.  He stated the process developed in that instance dealt with a particular problem.  He reiterated the legislature had tried in the past to be consistent, and whether it works for the Senate Committee on Judiciary was, of course up to that committee.

 

Senator James asked if Senator Townsend was suggesting that S.B. 423 should be consistent with the medical/legal screening panel, or that the provisions of the bill should not be put into place, because it has not been done for other professions subject to malpractice.

 

Senator Townsend replied that if it was decided to process the bill for the particular board affected, there probably should be consistency with the process currently in place.

 

Senator Jacobsen asked how the panel members should be selected.

 

Senator Townsend stated he did not want to get into the specifics of the bill.  He stated his belief that there is a process done for the medical/legal screening panel which apparently works in that setting.  He advised the difference between the medical board and those licensees, and the dental board and their licensees, might be substantial.  He stated that if someone deals with people's health, and is licensed in that profession, there should be some kind of consistency.  He stated his knowledge that this crosses between public policy, which would be his committee, as opposed to legal policy, which is within the judiciary committee's purview.

 

Senator Jacobsen stated that "experts" could be almost anyone.  He stated his belief that they would at least have to be tied to the profession in some manner.

 

Senator Townsend agreed this was a good point.  He stated his belief that one thing critical to this debate is the process, and how to move persons who believe there has been a problem through the process, with qualified persons, as quickly as possible. 

 

James L. Wadhams, Lobbyist, Nevada Dental Association, provided oral testimony in support of S.B. 423.  Mr. Wadhams stated that, having been a regular attendee in the Senate Committee on Commerce and Labor for many years, he applauds the effort at consistency spoken of by Senator Townsend.  He stated the legislature has made significant strides in finding that consistency in the licensing and regulation of health professions.  He stated his belief that this has been worthwhile, both from an institutional standpoint as well as a budgeting and accounting standpoint.  He stated there is a slight distinction, however, concerning the provisions of S.B. 423.  He stated the concern of the Senate Committee on Judiciary was with the legal or judicial process, and stated his hope that consistency in that committee is equally commendable.  He advised that to the extent this is the watchword, his organization is comfortable in following that concept.

 

Mr. Wadhams advised that the screening panel concept, mightily struggled over by some professions in past legislative session, has resulted in the medical/legal screening panel.  He advised that this has established a two-step process.  He stated he was not certain that aspect is that part with which an attempt at consistency should be achieved.  He stated his belief that the consistency of the medical/legal screening panel is an expeditious resolution of a legal dispute in that particular area.  He stated that consistency is what is embodied in S.B. 423.  He stated S.B. 423 was patterned after a bill which has been in place since 1976 in the state of Alaska.  He advised the purpose of the bill is to assist in the expeditious resolution of disputes arising from health care, and particularly dental care.  He advised that the dental profession did not need a two-step process to establish the consistency desired in screening panels.  He stated S.B. 423 does not in any way slow down a plaintiff's opportunity to litigate a cause of action.  The provisions of the bill expressly provides to the judge an alternative way of addressing the issue in an expeditious fashion.  He advised, therefore, there is a consistency with the pattern established by the Senate Committee on Judiciary.  He stated his belief that S.B. 423 contains some efficiencies and economies which are not in existence in the medical/legal screening panel, because it is not a two-step process.

 

Ted Twesme, D.D.S., Member, Nevada Dental Association, provided oral testimony in support of S.B. 423.  Dr. Twesme advised he is a practicing dentist in Las Vegas.  Dr. Twesme provided to the committee copies of the Nevada Dental Association Position Paper regarding S.B. 423.  His testimony was taken entirely from this position paper.  A copy of the position paper is attached as Exhibit G. 

 

Senator Adler asked if the idea of the bill is simply to screen cases, why dental cases should not be made screenable by the medical screening panel, by placing some dentists on that panel.  He stated the way S.B. 423 is structured, it does not reduce the number of lawsuits, as the suit is already in court before the panel is appointed.  He advised the medical screening panel prevents cases from going to court, eliminating frivolous claims early on.  He stated if he was a dentist, he would not consider this a beneficial bill as the panel does not operate until the community is aware that a malpractice complaint has been filed. He asked why the provisions of S.B. 423 was chosen over provisions which have a pre-screening of claims.

 

Mr. Wadhams replied that he did not know if a lawsuit against a dentist would be public knowledge whether or not a lawsuit is filed.

 

Senator Adler replied that a screening panel review is private.

 

Mr. Wadhams stated the association did not feel it was necessary, in order to achieve the expeditious resolution of disputes, to force the plaintiff to go to an administrative panel to be screened before that plaintiff goes to court.  He stated the intent of the bill was not to restrict anyone's access to the courts, but to focus on the expeditious resolution of the disputes.  He stated the association's belief that this will achieve the economic savings necessary to contain the settlements by insurance companies for economic, rather than meritorious reasons.  He stated the association sees no reason to force a person to go through a bureaucratic process before he or she gets access to the courts.

 

Senator Adler stated that the screening panel procedure would be confidential and the dentist would not have his reputation exposed to the details of the complaint.

 

Dr. Twesme stated the association did do research on this issue. Because of the peculiarities in dentistry and the ancillary help, the law concerning screening panels would have to be totally revamped for dentistry to fit into that niche. 

 

Carl Hebert, Attorney, Counsel, Nevada Dental Association, provided oral testimony in support of S.B. 423.  He stated he wrote the language in the original bill.  In response to Senator Adler, he stated he was not sure the screening panel for medical doctors is confidential, and even if this is true, it is woefully slow.  He advised he filed a petition before the medical panel in July of 1992, and the case was decided in March of 1993.  He advised the dental association is attempting to address the concerns of both the consuming public and the dentists.  He stated the mechanics of the bill is that after the suit is initiated, the judge will appoint three experts.  The parties can suggest who the experts will be.  He advised, in response to Senator Jacobsen, these are experts in the field.  He stated this is an improvement over the medical/legal screening panel, because in that panel it is theoretically possible to get three gynecologists to hear an orthopedic malpractice case.  He stated that for the expert advisory panel, the judge selects, for example, three periodontists to hear a periodontal malpractice case.  He advised this the entire point of S.B. 423.  He advised the experts do not have to be local.  These experts can examine the patient, look at the records, and render independent findings.  He advised these experts are not paid by the parties to support their own positions.  He stated the association anticipates many cases will settle once the independent reviews come back to the court.  There is a mechanism in the bill, from the medical/legal screening panel, requiring the judge to have a settlement conference.  This conference is based on what the judge believes the case is worth after the experts' report comes in. 

 

Mr. Hebert advised he used section 9.55.536 of the Alaska statutes, annotated in the drafting of S.B. 423.  He stated the Alaska statute was designed for physicians, and required relatively few changes to make it useful for dentists in Nevada.  He advised the Alaska statute has been in place since 1976.  In 1988 it survived a constitutional challenge in the Alaska Supreme Court, and was held on every particular.  The court stated the panel did not deprive a litigant the right to a jury trial; that there is no unequal protection of the law; and that there is no violation of due process.  Mr. Hebert stated that courts have always had the inherent power to call experts on their own.  He stated S.B. 423 focuses the court's attention on the particular problem, which is dental malpractice, and the concomitant surge in premiums for dentists.  He stated this is a psychological problem with dentists as well.  The dentists feel they are being singled out for malpractice, along with doctors, and therefore practice defensive dentistry.  He advised S.B. 423 provides the dentists with a solution.  They will be able to practice and if they are sued they will have three people, who know what the lawsuit is about, address their case.  Mr. Hebert foresees objection to be that soon a screening panel will be needed for many other professions.  He stated, however, medical doctors already have a panel.  Dentists are health care providers and therefore should have a panel similar to that of medical doctors.  Mr. Hebert stated that section 8 of S.B. 423 is discretionary with the court.  He advised that if the court decides a three expert panel is not useful, it is not required to call the panel.  He stated the panel would be useful for complex cases, but might not be necessary for simple ones. 

 

Mr. Hebert referred to page 4, section 16 of the bill, which he advised was added by the bill drafter.  He stated at line 36, an expert sitting on an advisory panel receives $80 per day.  He stated his belief that the courts would have difficulty attracting experts, especially from out of state, if they are paid only $80 per day.  He stated his belief that this should be changed to say the expert will be paid what the court finds is reasonable, given the circumstances.

 

Senator Jacobsen asked if a patient would ever be able to obtain dental care after filing a complaint against a dentist.

 

Dr. Twesme stated the adoption of the bill would not change this situation from the way it would be currently.  He stated many suits have been filed, compelling expert witnesses.  He hoped the result of S.B. 423 would be people from northern Nevada testifying in southern Nevada hearings and vice versa, therefore creating no conflict of interest as to competition for patients.  He reiterated that expert testimony could also be obtained from out of state.  He stated his belief that a patient would not have difficulty obtaining care following a compliant.

 

Senator Jacobsen asked how many dental malpractice suits are filed in a year's time. 

 

Dr. Twesme replied there has been a significant increase recently, although he did not have the exact figures.

 

Senator James asked if the screening panel would be included in a motion that one party would file.  He referred to language in the bill:

 

            . . .if the court hearing the case determines that an advisory report would assist the fair, timely and efficient resolution of the case, the court shall appoint an advisory panel of experts.

 

He asked if this is the procedure in Alaska.  He stated that in any malpractice case which goes to court, the attorney and the doctor will have experts.  He advised that is essentially what would occur with S.B. 423, except the experts would be court appointed and submit a report to be weighed by the jury.  He stated if the expert report went against the plaintiff's claim for malpractice, he could bring in his own expert to attempt to refute the testimony.  He stated he sees an effect of the bill, because of its structure, is to make the plaintiff share in the expenses of the expert. 

 

Mr. Hebert replied this would work both ways.

 

Senator James stated it would if the experts came in for the plaintiff.  He stated that Dr. Twesme set forth the predicate for the bill as being the astronomical rise in medical malpractice claims, and Mr. Hebert indicated nuisance settlements which increase insurance premiums.  He stated Mr. Hebert had testified that S.B. 423 addresses this problem and would cause the premiums to go down.  Senator James stated he has a question as to whether the bill would serve that purpose, or would be a cost-shifting mechanism for the payment of experts in a lawsuit.

 

Mr. Hebert stated the latter sections of the bill award costs as the court sees fit.  He stated his association anticipates that after an expert panel presents its independent findings, most lawsuits will settle with the settlement mechanism built into the bill.  The cases will not, in every case, go all the way to the jury.  He stated there is perception among juries that the side who calls and pays an expert is likely to receive the opinion they want.  He stated his belief that jurors might see differently the opinions from a court appointed, three expert advisory panel.  He stated this would not only have influence with the jury, but with the parties.  When the opinion comes in from the experts, they may decide the case is something they want to settle. 

 

Dr. Twesme replied from personal experience, a case can go through the discovery phase which lasts months and years, and astronomical funds are expended.  He stated the case is often eliminated by the insurance company paying a huge amount in settlement.  He advised time is of the essence in a lawsuit, not only for the dentist, but the patient.  If the patient is truly injured and needs compensation for those injuries, that should be done expeditiously.  He stated S.B. 423 provides for a 5 month time period from filing of the case to the resolution. 

 

Mr. Hebert added that the bill contains a section providing for the stay of discovery while the experts examine the witness.  He stated the whole idea is to get the expert review at the beginning of a lawsuit, therefore hopefully decreasing the time and funds expended in the discovery process.  He stated this is why insurance companies sometimes settle these cases.  The company looks at the cost to pay an attorney to defend the case and how much a case is worth.  If the case will cost, for example $20 thousand to defend, the insurance company settles for $20 thousand.  Seldom is the dentist's opinion an issue.  He stated S.B. 423 will hopefully stop this, lower insurance premiums, and give the dentists some security that when they go to trial they will have an independent review by three experts who practice in their area of dentistry.

 

Senator James stated there is also another mechanism such as the offer of judgement.  If the plaintiff receives less than what was offered in settlement, the defendant pays reasonable costs, including the expert witness fees.  He stated this could be a fairly substantial amount for three experts.  He agreed that the $80 per day stated in the bill will not be adequate.  He stated most doctors testifying as experts charge $500-600 per hour for deposition time.

 

Mr. Hebert referred to subsection 3 of section 16, which says:

 

            The court shall apportion the expenses of the panel among the parties as it deems just.

 

He stated this gives the court some latitude regarding expert witness fees. 

 

Senator James stated this would not be the case if the offer of judgment provision is applicable.  It would then be mandatory for the court to award costs.

 

Mr. Hebert agreed there may be some conflict in that regard, and perhaps an amendment could give the court discretion in that event.  He advised the offer of judgment language in the bill was taken directly from the medical/legal screening panel's legislation in NRS Chapter 41A.

 

Senator Jacobsen asked how an expert would make a determination if the dental work was covered, for example, with a bridge.  He asked if the bridge had to be removed to make a determination, who would pay these costs.

 

Dr. Twesme replied that the evidence would not only an examination, but x-rays and records.  All of these things would be used in determining whether or not malpractice was involved.  He stated that if the court finds for the plaintiff, an award is made to include the costs of repairing damages, plus pain and suffering.

 

Senator Jacobsen asked how dental work done in the past could be proven as malpractice.

 

Dr. Twesme replied that sometimes this is difficult, but as in any other case, the evidence must be weighed.  He stated the evidence in a malpractice case the evidence would be dental x-rays, impressions, and dental lab records. 

 

Stephanie S. Tyler, Lobbyist, Nevada State Board of Dental Examiners, testified in support of S.B. 423.   She stated the board's primary interest is protecting the health and safety of the general public.  She stated the board feels that S.B. 423 maintains a primary focus on the health and safety of the general public.  However, it will further add to expediting claims, keeping legal fees down, and offering a true peer review system.  She stated the board sees S.B. 423 as a positive step forward for the practice of dentistry in Nevada.

 

Bill Bradley, Attorney, Member, Nevada Trial Lawyers Association, provided oral testimony in opposition to S.B. 423.  He advised he was involved in 1985 in the formation and actual writing of the provisions of the medical/legal screening panel.  He stated the association pushed for passage of the medical screening panel against the wishes of physicians.  He advised the panel has provided good results.  He stated the association strongly questions the benefits of S.B. 423 when compared to the medical/legal screening panel.  He stated he would like to be provided with a copy of the report from the dental association, showing an increase of malpractice lawsuits.  He stated that in the 12 years he has been in practice and the 25 years his law office has been in existence, his office has filed one dental malpractice case.  He stated this case involved a patient who lost a heart valve due to bacteria picked up in his mouth which went to his heart.  Mr. Bradley stated he cannot question the statistics presented by the proponents of the bill.  He does, however, attempt to keep informed as to malpractice claims filed in all areas.  He stated he has not seen the exponential growth in claims as previously testified, but in fact, filings overall in Nevada are down in comparison with population growth.  Mr. Bradley stated great concern that if the proposed panel is adopted, the Nevada Trial Lawyers Association will ask for a panel.  He stated all other professional people will also request panels, and each panel will be asked to put in front of a judge the request to pick three experts.  He advised there are 10 judges in Washoe County and 16 in Clark County, all of whom will pick different experts for different cases.  He represented that the screening panel is currently ignored by judges, a fact about which nothing can be done.  Mr. Bradley stated the rules on the medical/legal screening panel are very clear.  The judge must set a settlement conference within 7 days.  Mr. Bradley stated this does not happen, and in fact, the conferences are generally set in 3 or 4 months, and there is no recourse.  He asked the committee to realize that S.B. 423 is not a cure-all and that these cases will move expeditiously through the system.  He stated the proposed advisory panel will increase the costs of litigation.  He advised the two goals of the medical/legal screening panel were to do away with frivolous claims and to expeditiously resolve meritorious claims.  The panel has accomplished the first goal; there are no more frivolous claims.  Regarding meritorious claims, the discovery process routinely goes nearly all the way to trial, even the judges tells the defendant to settle the case.  He advised there is one judge in Reno who refuses to hold settlement conferences, for the reason that the conferences are unconstitutional.  Mr. Bradley stated he could not envision judges taking the time to locate three experts. 

 

Mr. Bradley advised that, if the three experts are appointed, those experts formulate an opinion.  That opinion comes either with a concurring opinion or possibly two experts agree and one did not.  He stated that S.B. 423 provides that all three expert witnesses may testify at trial.  He advised this will dramatically increase the cost of the litigation in every case.  He agreed that $80 per day is ridiculous, and it will be more like $800-1,000 per day.  He stated that judges are trying to eliminate duplicative experts and they will not tolerate having three experts in addition to the two on each side of the lawsuit. 

 

Mr. Bradley stated he questions the 500 percent increase in insurance premiums over 10 years.  He agreed that premiums in all professions have gone up.  He also questioned the validity of Alaska passing this process as constitutional, because it was passed there relative to physicians.  He advised that with physicians, there is an established crisis.  The screening panel addresses the crisis, and regarding constitutionality, if something works, it can be justified.  He does not see that challenge fitting in with dentists, and certainly does not see it working with lawyers, accountants, and other professions who will ask for the same type of protection.  He stated another misnomer is the testimony by dentists that experts can be brought in from out of state.  He does not see that as correct, as S.B. 423 establishes what is known as the local community standard.  This standard calls for evaluation based on the standard existing in the doctor's community.  He stated this is contrary to Nevada law, which bases the standard nationally.  He stated that in order for a doctor to testify to the local community standard, he or she must be from that community.  Therefore, the experts would have to be chosen from the community in which the doctor is practicing.  He stated there would be no ability to question the proposed expert's relationship to the dentist.  The judge would say the expert will be fair, and there is no way of proving previous personal or business relationships.  He stated his belief that this would not create an independent, unbiased approach which the proponents say exist in S.B. 423. 

 

Senator James asked why a screening panel member's unbiased opinion cannot be questioned.

 

Mr. Bradley stated he did not see any provision for this in S.B. 423.  He advised this type of questioning would mean deposing each expert, to determine his or her background and relationship with the defendant.  This increases costs.

 

Senator James referred to Mr. Bradley's statement that, as an attorney, each panel member would have to be deposed because he or she could testify.  He asked if Mr. Bradley stated there was something in Nevada law which prevents asking about the potential relationship with the litigant. 

 

Mr. Bradley stated that, regarding the medical/legal screening panel, there is no ability to do so.  He would like to have this ability in the case of the screening panel proposed in S.B. 423.  He reiterated that this bill does not accomplish the primary goal of eliminating the frivolous cases.  He stated the only way for a judge to decide if the case is meritorious with a screening panel is if a motion is filed.  He advised there would be more motions associated with the provisions of this bill than there are currently with the medical/legal screening panel.  He stated there is an 80-day delay at a minimum, if every judge can accommodate every lawyer and comply with the 30-day time frames prescribed in S.B. 423.  He advised he has never seen this happen in any medical malpractice complaints currently in litigation. 

 

Mr. Bradley stated there is currently in place an advisory panel comprised of dentists in northern Nevada.  The use of this panel is strongly recommended to people who call regarding dental malpractice cases.  He advised less than 10 per year of these calls are received.  He stated generally these calls involve a broken filling or something similar, and rarely include the massive cases requiring the filing of a professional negligence claim.  The injuries in dental claims generally do not justify the tremendous monetary and time commitment required.  He stated he did not know how many times per year the advisory panel in northern Nevada is used.  He stated he will attempt to obtain these figures, as he believed that will indicate the number of disgruntled patients and the number of filings.  He stated the advisory panel has taken it upon themselves to voluntarily hear the cases and attempt to get them resolved.  He stated his belief that this is a much better precedent than that of setting a new panel and from that point forward having every other profession in Nevada asking for the same consideration.

 

Senator James stated, regarding frivolous claims, that section 16 of S.B. 423 states:

 

            If the court determines a claimant made a patently frivolous claim or patently frivolous denial of liability, the court shall order that party to pay all expenses of the panel.

 

He stated the only departure in that section from Rule 11, Nevada Rules of Civil Procedure, is that it is mandatory.  He stated a motion under Rule 11 could still be filed if it is a patently frivolous claim.  He stated that if this could be shown, he could not imagine that costs or some other sanction could not be imposed.

 

Mr. Bradley agreed that this provision exists in Rule 11, but in that case the costs do not have to pursued against the patient who is injured and out of a job.

 

Senator Titus referred to Mr. Bradley's statements regarding the medical/legal screening panel working very well.

 

Mr. Bradley stated he did not mean to say this.  He stated his belief that the panel has accomplished one of its goals, that being the elimination of frivolous claims, and to a certain extent the reduction of premiums.  He stated the panel is not resolving the meritorious claims at an early stage.  He advised this is due to the problem of examining experts, the people who sit on the panel, and biases existing on both sides.  He stated his belief that there could be much improvement to the panel, but everyone is afraid to attempt to do so, because it is so volatile.  He stated the issue has purposely left alone and this is one reason the trial lawyers were so concerned in 1989.  If everything is going to be turned over to panels, he did not what would happen, but did know it will not work.

 

Senator Titus asked if Mr. Bradley's association would be opposed to the dentists working things out so that they could fit into the existing medical/legal screening panel. 

 

Mr. Bradley stated he probably would be opposed because he does not believe the panel is needed.  He stated the panel must be constitutionally justified.  There must be a rational basis between the legislation which limits people's access to the courts and the result of the legislation.  He stated it is clear in medical malpractice cases, with skyrocketing premiums and escalation of frivolous cases, that a rational basis can be established between the legislation and the results.  He did not see this happening in the case of dentists, as there are not enough cases filed on a yearly basis to justify the panel.  He stated his belief that putting the dentists into the medical/legal screening panel would more jeopardize the panel than solidify it.

 

Senator Titus stated she did not believe Mr. Bradley's testimony that there had been only one case filed in his law firm in 20 years was a truly accurate reflection of how many cases have been filed in total. 

 

Mr. Bradley stated that, if time permits, he will obtain a survey in this regard.  He stated that a professional negligence claim is the most serious claim which exists.  This type of claim questions another person's competence, and is not done lightly nor without a lot of thought.  He reiterated he does not see or hear of cases involving dentists to any degree.

 

Senator Titus referred to Mr. Bradley's statement that if the proposed panel is approved many other professions will request the same type of panel.  She asked if malpractice insurance exists for other professions, and if there exist problems with escalating rates and an increase in cases.

 

Mr. Bradley stated the escalation of health rates and the awareness of Acquired Immunodeficiency Syndrome (AIDS), especially in the dental profession, there might be an increase in insurance premiums.  He stated that when a person is injured through a general mistake, the medical practitioner's rates have certainly escalated, and therefore an escalation in insurance premiums would be seen.  He stated his belief that this is reflected throughout the professions such as engineering, accounting, architecture and so forth. 

 

Senator Titus asked if Mr. Bradley could show that this is the case.  She referred to the fact that other professions had not testified that this is a problem.

 

Mr. Bradley stated the architects have testified before the legislature in every session since the institution of the medical screening panel.  He stated the dentists have testified in previous years as well.  He advised other groups have asked for the protection and have complained about their increasing rates.

 

Senator James advised he has heard complaints from every profession regarding increased costs and malpractice insurance premiums, for example the law firms which practice domestic relations law. 

 

Mr. Bradley stated his wife is a divorce lawyer, and he had not seen an increase in her insurance premiums; however she is a sole practitioner.  He stated his belief that it could not be disputed that the premiums of attorneys had not gone up in the past 10 years. 

 

Senator James asked if there is truly anything left in constitutional challenges regarding screening panels. 

 

Mr. Bradley advised there is nearly a 50/50 split across the county.  One-half of the jurisdictions have eliminated screening panels on a constitutional basis, and the other half have retained them.

 

Mr. Bradley stated a recent survey stated that several states have found, at least in the area of medical malpractice, that the crisis was artificially created, and there never existed a need for the panel. 

 

Senator James asked Mr. Bradley to provide a copy of this survey.

 

Mr. Bradley stated this has also been applied to several tort reform issues such as caps on general damages, limits on attorneys fees, and abolition of the collateral source rules.  He added several of the states have struck it down and several have maintained it, creating a balance.  He advised the Nevada experience is that everyone has left it alone because it has worked to some extent.  Mr. Bradley stated, regarding attorneys, he believed it would be better to get board certification.

 

Senator James asked Mr. Hebert if Mr. Bradley's point regarding lawyers having to depose all experts on the panel escalating litigation costs would not be true.

 

Mr. Hebert replied that there could be built into S.B. 423 a form of written voire dire, in which the parties could ask the proposed experts for their qualifications before it goes any further.   Mr. Hebert, responding to Mr. Bradley's statement regarding the community standard of care, that this is not precisely the way S.B. 423 is written.  He stated his belief that everyone recognizes and Nevada law states that if a person is a board certified specialist that they must meet a national standard.  He advised where the local standard came in was with regard to the practitioner in an outlying area who does not have the facilities to meet a national standard of care.  He stated his belief that this is not that big an issue.  He advised this language is found at the bottom of page 1 of the bill.  He stated it is fairly broadly written, saying "the community is the area customarily served by dentists, not merely the particular area inhabited by the patients of that individual dentists or the particular city."  He stated it is necessary to be concerned with the rural communities and how their practitioners are judged compared to someone in a large city.

 

Senator James asked if the expert did not have to be directly questioned regarding his or her qualifications.

 

Mr. Hebert agreed they would have to be questioned regarding their potential for bias.

 

Senator James stated they would need to be questioned regarding everything related to the litigation, including their potential for bias the basis for their opinions and their qualifications.

 

Mr. Hebert agreed that he would want to depose an expert under those circumstances. 

 

Senator James stated that if the expert is on the panel, he or she will submit a report which will be used as the weight of expert opinion.  He stated the point Mr. Bradley is making is that there would be no choice as to deposing every expert.

 

Mr. Hebert stated his belief that this is something that would have to be balanced with the judicial mechanism.

 

Senator James asked Mr. Hebert's opinion of the suggestion of using an advisory panel which would not be a part of the court proceeding.  He asked if this would not accomplish the same thing.  He stated an advisory panel would eliminate having to depose experts.

 

Mr. Hebert replied this would work if the major concern is the cost of depositions.  He advised, however, that the dental association wants the jury to hear from the independent experts, and not only the experts the parties pay to say what they want said.  He stated it would not be that burdensome for the court to obtain a list of experts from the parties and write to them, asking if they would be willing to serve.  He stated the legislature imposes many obligations on parties and courts.

 

Senator James advised his concern is not primarily the cost of depositions, although it is a legitimate concern.  He stated the concern he was articulating was the one which all proponents of the bill stated, which is the expeditious resolution of the case, which is through the settlement mechanism.  His question was whether or not the jury hearing from the panel is not a separate issue.  At that point the settlement stage has passed, and depositions have been taken.  He stated having certain witnesses chosen by the judge to offer expert testimony is a court-imposed requirement. 

 

Mr. Hebert stated these experts are not deposed in criminal cases, yet they still testify. 

 

Senator James stated he did not know of any civil case in which an expert submits a report, who is not deposed.

 

Mr. Hebert stated his belief that this is reflexive on the part of the attorneys, to have to take everyone's deposition.  He stated courts have the inherent authority to limit the number of depositions.  He also pointed out that in the case of the medical/legal screening panel, this is all done by affidavits.

 

Senator James asked all proponents of S.B. 423 to submit to the committee their statistics received from their sources.

 

Dr. Twesme added that there exists a voluntary screening situation in Clark County.  He stated that despite this, they have seen a rise in malpractice premiums.  He stated he believed that the average premium in 1982 was $1100 per year, and in 1992 that increased to $6600.

 

Senator James asked if that is related particularly to litigation costs, or to health costs generally.

 

Dr. Twesme replied the premiums are a function of what the insurance companies experience in paying off claims.  He stated that, to his knowledge, the association has had no incident involving AIDS whatsoever.  Therefore, that would not be an impact.

 

Senator James asked if the rise of health care costs generally would not be a factor.

 

Dr. Twesme stated that would not be the case.  Malpractice insurance is purely liability.

 

Senator James asked if the damages are not based upon the health damage to the person claiming, and therefore, medical costs would be one of those damages.

 

Dr. Twesme stated that would probably be true.  He added, to reiterate, that this is affecting every Nevadan and how they receive dental care.  He stated it particularly affects health care purchased by the state, and therefore, has some really far reaching effects.  He added the premiums are being passed to the health care consumer and the state is one of the major consumers.

 

Senator Titus stated her knowledge that a number of other states have medical/legal screening panels for doctors.  She asked if this the case for dentists.

 

Dr. Twesme stated that, to his knowledge, Nevada would be the first state to do this.

 

Senator James confirmed there was no further testimony on S.B. 423, and closed the hearing.  He stated another hearing would be scheduled, at which additional testimony would be allowed.

 

The work session was opened to review bills previously heard in committee.

 

The hearing was opened on Assembly Bill (A.B.) 361.

 

ASSEMBLY BILL 361:            Authorizes municipal judge to perform marriages in this state and authorizes justice of the peace to perform marriages in commissioner townships.  (BDR 11-573)

 

Paula Treat, Lobbyist, Nevada Judges Association, provided oral testimony regarding A.B. 361.  She advised that the association has submitted to the committee an amendment to limit the number of ceremonies performed to 20.  She further advised the association had accepted an amendment proposed by Senator Adler regarding ministers.  She stated she had discussed this with Senator Adler and had requested an additional amendment limiting the ministers to 5 marriages per year.  She explained that if there is a minister from California who is going to perform a marriage in, for example, Lake Tahoe, normally he would not be able to perform the ceremony.  She stated the association would not want to see this becoming another vocation.  She advised that the idea is to make allowances for someone who is a minister to practice in Nevada on special occasions. 

 

Senator James asked for and received confirmation that the new language would go into section 4(b), after the word "performed."  He read the proposed language:

 

            The authorization shall be approved in writing prior to the solemnization of the marriage, and shall be limited to the performance of five marriage ceremonies per year per minister.

 

Ms. Treat advised that Senator Adler had no problem with the number of marriages suggested.

 

      SENATOR MCGINNESS MOVED TO AMEND AND DO PASS A.B. 361.

 

      SENATOR TITUS SECONDED THE MOTION.

 

      THE MOTION CARRIED.  (SENATOR ADLER WAS ABSENT FOR THE VOTE.)

 

      * * * * *

 

The hearing was opened on Senate Bill (S.B.) 392.

 

SENATE BILL 392:        Changes name of probation department and probation committee in certain counties and expands authority of committee responsible for certain juvenile services in those counties.  (BDR 5-1304)

 

Senator James advised he had talked to supporters of the bill.  He brought the bill back before the committee because of the substantive changes in the law. 

 

Rob Calderone, Director, Juvenile Services, Washoe County, presented oral testimony regarding the bill.  He advised the bill changes the name of the probation department and probation committee to the Department for Juvenile Services and the Committee for Juvenile Services.  He stated the bill also expands the authority of that committee.  He advised this is a seven member lay committee appointed by the judge, which advised him and the judge regarding certain matters within the department.  He stated those areas in which they seek advice from the committee are now delineated in the statutes, under old statutory language.  The new language expands those areas in which they would be advised by the committee in their operation of the department of juvenile services. 

 

      SENATOR SMITH MOVED TO DO PASS S.B.392.

 

      SENATOR JACOBSEN SECONDED THE MOTION.

 

      THE MOTION CARRIED.  (SENATOR ADLER WAS ABSENT FOR THE VOTE.)

 

      * * * * *

 

The hearing was opened on Assembly Bill (A.B.) 63.

 

ASSEMBLY BILL 63:       Requires separate penalty hearing in all criminal cases which result in conviction of defendant for murder of first degree.  (BDR 14-589)

 

Senator James advised this bill was held for voting due to objections from the judges, and the committee has since received proposed amendments.  The district judges had indicated that they have no objection to the amendments.  Senator James confirmed that committee members had reviewed the amendments and that there were no questions.

 

      SENATOR SMITH MOVED TO AMEND AND DO PASS A.B. 63.

 

      SENATOR TITUS SECONDED THE MOTION.

 

Senator James asked Mr. Ben Graham, Lobbyist, Nevada District Attorney's Association, to discuss the amendments with Assemblyman Sader.  Mr. Graham agreed to do this.  Mr. Graham advised he had spoken with Judge Nancy Becker.  He stated the judges would rather have the jury taken out completely, but would not object to the bill with the current amendments.

 

      THE MOTION CARRIED.  (SENATOR ADLER WAS ABSENT FOR THE VOTE.)

 

      * * * * *

 

The hearing was opened on Assembly Bill (A.B.) 489.

 

ASSEMBLY BILL 489:            Requires attorney general to pay expenses to extradite person located outside United States.  (BDR 14-513)

 

Senator James explained the bill.  He reminded the committee that he had been asked to discuss this bill with the Senate Committee on Finance.  He advised that Senator Raggio, Chairman, Senate Committee on Finance, has no problem with the bill. 

 

      SENATOR MCGINNESS MOVED TO DO PASS A.B. 489.

 

      SENATOR TITUS SECONDED THE MOTION.

 

      THE MOTION CARRIED.  (SENATOR ADLER WAS ABSENT FOR THE VOTE.)

 

      * * * * *

 

Mr. Ben Graham advised the committee the current status of the stalking bill.  He stated there was a phrase in the last part of the bill allowing persons to obtain injunctions or restraining orders.  The bill used the phrase "any court of competent jurisdiction."  He stated that, because of review at the request of a judge, the bill will have to be amended to set forth that the justice court has jurisdiction in this area.

 

Senator James confirmed there was no further business to come before the committee.  The meeting was adjourned at 4:55 p.m.

 

                        RESPECTFULLY SUBMITTED:

 

 

 

                                                

                        Sherry Nesbitt,

                        Committee Secretary

 

 

 

APPROVED BY:

 

 

 

 

                                

Senator Mark A. James, Chairman

 

 

DATE:                            

??

 

 

 

 

 

 

 

Senate Committee on Judiciary

May 12, 1993

Page 1