MINUTES OF THE
SENATE Committee on Judiciary
Seventy-second Session
March 19, 2003
The Senate Committee on Judiciary was called to order by Chairman Mark E. Amodei, at 8:00 a.m., on Wednesday, March 19, 2003, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Senator Mark E. Amodei, Chairman
Senator Maurice E. Washington, Vice Chairman
Senator Mike McGinness
Senator Dennis Nolan
Senator Dina Titus
Senator Valerie Wiener
Senator Terry Care
GUEST LEGISLATORS PRESENT:
Assemblyman John Oceguera, Assembly District No. 16
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Bradley Wilkinson, Committee Counsel
Jo Greenslate, Committee Secretary
OTHERS PRESENT:
Elana L. Hatch, Chief Deputy District Attorney, Family Support Division, District Attorney, Clark County
Matthew L. Sharp, Lobbyist, Nevada Trial Lawyers Association
Ernest E. Adler, Lobbyist, Washoe County
Stan Miller, Tort Claims Manager, Litigation Division, Office of the Attorney General
Rose E. McKinney-James, Lobbyist, Clark County School District
Doreen Begley, R.N., Lobbyist, Nevada Hospital Association
Lisa Black, R.N., Lobbyist, Nevada Nurses Association
Lawrence P. Matheis, Lobbyist, Nevada State Medical Association
Neena K. Laxalt, Lobbyist, Nevada Podiatric Medical Association
Debbie J. Smith, Lobbyist, Service Employees International Union Local 1107, Operating Engineers Local No. 3
Carin Ralls, R.N.
Mary C. Walker, Lobbyist, Carson-Tahoe Hospital
Chairman Amodei:
We will open the hearing on Assembly Bill (A.B.) 27.
ASSEMBLY BILL 27: Revises method for adjusting presumptive maximum amounts of child support owed by noncustodial parents. (BDR 11-244)
Elana L. Hatch, Chief Deputy District Attorney, Family Support Division, District Attorney, Clark County:
Assembly Bill 27 will correct an unintended result in Nevada Revised Statutes (NRS) 125B.070, by applying the consumer price index (CPI) to maximum presumptive amounts of child support, the cap on child support, and not applying CPI to income ranges. Last session I introduced a bill to improve the lives of children by increasing the presumptive maximum amount of child support in NRS 125B.070. This bill was widely supported. The final version of the bill passed by this Legislature had graduated presumptive maximum amounts of child support and has worked well. It also had consumer price indexing applied to presumptive maximum amounts of child support, which has also worked well. Additionally, the final version had CPI applied to income ranges, which has not worked well. The unintended result is that a noncustodial parent can be moved from one income range to another with no change in income, resulting in a large, inappropriate change in child support, either an increase or a decrease. It would appear CPI was properly applied to presumptive maximum amounts of child support and inadvertently added to income ranges.
I provided a handout (Exhibit C) containing tables. As you can see, the child support caps will fluctuate up, down, or stay the same based on CPI. That is the information on the right side of the tables. This is correct, and this is fair. In the income ranges on the left side of the tables, fluctuation is not based on noncustodial parents’ income, but on consumer price indexing. This is incorrect and not fair. This is the unintended result. Assembly Bill 27 removes the CPI from income ranges and corrects this unfair, unintended result. This bill also has the support of the Washoe County District Attorney’s Office, the Nevada District Attorneys’ Association, and the Nevada Child Support Enforcement Program. If you would like, I could review the tables with you or I can answer questions.
Chairman Amodei:
The record should reflect we received correspondence from Beverly Salhanick on behalf of the Nevada Trial Lawyers Association indicating their support of A.B. 27 (Exhibit D).
Ms. Hatch:
We had two people in Las Vegas who planned to testify. I have their testimonies.
Chairman Amodei:
For the record, the testimonies you referred to will be included. I will close the hearing on A.B. 27.
SENATOR NOLAN MOVED TO DO PASS A.B. 27.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman Amodei:
We will now open the hearing on A.B. 40.
ASSEMBLY BILL 40 (1st Reprint): Extends period of limitations for commencing civil action after action has been dismissed under certain circumstances. (BDR 2-769)
Assemblyman John Oceguera, Assembly District No. 16:
A previously unnoticed injustice occurs in our civil court system each time a civil case that was timely filed at the commencement is later dismissed on grounds unrelated to its merits and barred from being refiled due to the prior expiration of the applicable statute of limitations. Assembly Bill 40 was conceptualized and designed to correct this unfair, recurrent result. Assembly Bill 40 achieves its objective in a simple and straightforward manner. The bill provides an additional 90-day period in which to refile a case that was dismissed on grounds unrelated to its merits, regardless of the prior expiration of the applicable statute of limitations. Assembly Bill 40 provides a deserving litigant with two valuable resources: time and confidence. Time in which to determine whether or not to refile an action, and confidence in knowing that if he proceeds, his claims, which were originally filed in a timely manner, cannot be challenged on the basis of the expiration of limitations at the time of refiling.
A litigant, who originally files his claims in compliance with various statutes of limitations, only to find his case dismissed on some basis unrelated to its merits, is worthy of the consideration afforded by A.B. 40. For your information, Nevada’s various periods of limitations can be found in Nevada Revised Statutes (NRS) 11.010 through 11.390. In cases where dismissal occurs with less than 6 months of the original period of limitations remaining, the bill provides an additional 90 days in which to refile, so the litigant is not rushed to recommence his action for the sole purpose of protecting his claims against the challenge based on the expired statute of limitations. However, it is not the purpose of A.B. 40 to allow multiple refilings of the same case of action under its gratuitous provisions. Therefore, the bill specifically provides an action may only be refiled once pursuant to the terms outlined in A.B. 40. Assembly Bill 40 will serve deserving litigants and the civil court system well.
I thought we were videoconferencing to Las Vegas and I have a witness there who knows this issue well. Also, A.B. 40 was revised and amended on the Assembly side to limit this to subject matter jurisdiction. Secondly, we originally believed 6 months would be an appropriate time frame, but we limited it to 90 days. The federal statute is 30 days, so we extended that to 90 days. We also added the action may not be recommenced more than 5 years after the date it was originally commenced.
Chairman Amodei:
The record will reflect we have testimony from Daniel Ebihara of Clark County Legal Services (Exhibit E).
Senator Care:
Regarding lack of subject matter jurisdiction, what if the attorney made a mistake? It seems if the attorney is allowed to skirt on a potential claim for malpractice, for example, no harm is done if in the end the party is allowed to refile the claim. Another question I have is what happens if the case is dismissed because of sanction, failure to prosecute, and the court says it is going to dismiss the case with prejudice; it is over. Ostensibly, that does not go to the merits, and under A.B. 40, the attorney could refile. I am certain this must have come up on the Assembly side. Do you have any thoughts on that?
Assemblyman Oceguera:
Yes, that did come up. I do not believe this is a “Save the bad lawyer bill.” I believe this is more about judicial economy and not requiring a person to file in federal court and State court, but giving him the option to, if the case is dismissed in whichever court is chosen, go back and file in the other court. Currently the person would have to file in both courts.
Senator Care:
I believe you are talking about the U.S. Supreme Court, which has in the last few years, some believe, come down on the 10th Amendment regarding states’ rights. There is federal legislation, but it would have to be interpreted in such a manner that the remedy lies in state rather than federal court. An attorney files in federal court and finds out from the U.S. Supreme Court several years later federal court was not the correct court in which to file. He should have filed in state court.
Assemblyman Oceguera:
The claim that came to mind was actually a contract claim under State law and an American with Disabilities Act (ADA) claim. The plaintiff filed an ADA claim; it went forward and was dismissed. He was unable to file the contract claim under State law. Assembly Bill 40 would give claimants 90 days in which to file in the other court, State court, in the example given. A federal statute already allows 30 days.
Chairman Amodei:
You said under federal law, this mechanism is already in place, but currently has a 30‑day time frame?
Assemblyman Oceguera:
That is my understanding.
Chairman Amodei:
Are you aware of other states’ laws? Is this unusual?
Assemblyman Oceguera:
No, I do not believe it is unusual at all. There are several states that have a savings clause.
Senator McGinness:
Regarding the used car deal you mentioned, tell me what the person was unable to file so I can understand how this bill would work.
Assemblyman Oceguera:
The case that brought this to my attention had several causes of action. Sometimes there are complicated issues regarding the choice of law you will use. There was a contractual issue over a used car or a car deal, and there were federal disability issues. The attorney in the case chose to file in federal court, went through proceedings, and by the time the case was finished, the State claim had tolled. The statute of limitations had ended, and the case could no longer be filed in State court.
Senator McGinness:
Was the case in federal court dismissed?
Assemblyman Oceguera:
I cannot tell you the specifics, but I would say it was dismissed on something other than its merits.
Senator McGinness:
I was wondering if an attorney has to make the decision of whether to file a federal case or a State case. If he makes the wrong choice, as Senator Care mentioned, would he want to try the other court?
Matthew L. Sharp, Lobbyist, Nevada Trial Lawyers Association:
I am president of the Nevada Trial Lawyers Association. We are here in support of A.B. 40. Assemblyman Oceguera has done an excellent job explaining the substance of his bill. I might be able to add information to address the specific questions just asked. In order to file a case in federal court, you must have what is called subject matter jurisdiction, which is specifically created by statute. It has to be an amount in controversy in excess of $75,000 involving a citizen from the State of Nevada and a citizen from another state. The second method is what is called a federal question, such as a claim under the ADA. When a lawyer pleads a complaint, he may plead alternative relief or may have several causes of action. The example Assemblyman Oceguera presented was two claims, a breach of contract and a claim under the American with Disabilities Act. Through the course of discovery, where you begin to learn more of the evidence of the case, you may find you have more evidence supporting the breach of contract claim than you do the ADA claim. Under that example, the court may say, “You do not have a claim under the ADA; therefore we do not have any jurisdiction.” Under that context, the court has not said, “Your case is without merit.” It is just that your case is a breach of contract case. In that case it makes sense to allow the litigant to go to State court to proceed with his breach of contract claim.
There are a lot of tactical issues you reach in deciding whether to begin in federal or State court. This is a means of protecting the litigant’s ability to ultimately have his case heard on its merits.
Senator Wiener:
On the 30- and 90-day difference, could you explain why the State would have a longer time period?
Mr. Sharp:
I think this would address Senator Care’s concerns as well. I gave an example of where the breach of contract claim was meritorious and needed to proceed. The litigant needs an opportunity to decide whether it would make sense to proceed with a breach of contract claim. A 30-day time frame is not long enough for the attorney to evaluate the matter with his client. It requires litigants to file cases and perhaps dismiss later on. The 90 days gives additional time for the litigant to consider how he is going to proceed in light of the federal court’s ruling.
Senator McGinness:
Could you file both cases at the beginning?
Mr. Sharp:
In a situation in my office, where I have a case that involves a State cause of action, such as a breach of contract and federal causes of action, we face a tactical decision. We could file some cases in State court, in which case we serve the complainant, and the defendant would have an opportunity to do what is called remove the case to federal court. In that case we would have a State court case removed to federal court. Down the road, the federal court may say, “We do not have jurisdiction,” and it would go back to State court. That is one example. There may be a situation in which we know this is principally a federal court question, so we will not file in State court. We file in federal court, then the court dismisses our federal complaint, and we are left without any remedy in State court. It is the second area that you are dealing with in this bill. To answer your question, sometimes you can file in State court, and other times you do not, and A.B. 40 would provide protection to that litigant.
Senator McGinness:
I am not a lawyer, so that was “yes?”
Mr. Sharp:
Yes, Senator McGinness, that was a yes.
Senator Care:
If you file in State court, the case stays in State court; there is no federal question. Let us say you have an attorney for the party failing to prosecute. I have seen this happen, the case just sits there for 4 1/2 years, so the court dismisses the case with prejudice. Arguably, because you have not reached 5 years yet, the plaintiff could run out, find another attorney, and file again.
Mr. Sharp:
I have never had the experience of not pushing a case for 5 years and had it dismissed, but it is my recollection when a case is dismissed on subject matter, it would be without prejudice and could be filed later on in State court. In a situation such as a motion to remand, the case is simply remanded back to State court. If the case is dismissed with prejudice, does that effectively imply there has been a ruling on the merits, and based upon your inability to act, you do not have a chance to come back? I do not know the answer, but I could research it for you, Senator.
Senator Care:
I think Rule 41 does actually use the language, “judgment on the merits” or something to that effect. Let us say it is a sanction because the conduct has been so egregious by a particular attorney, such as destruction of evidence. Whether that is on the merits, I do not know. If they use those words, “with prejudice,” maybe that is what it would be.
Mr. Sharp:
I think in the context of a lawyer using an abusive litigation tactic, such as destroying evidence, the client is bound to that conduct. There was a products liability case in Nevada where the attorney did not preserve the product, and because of that the Supreme Court later dismissed the case with prejudice. The attorney did not do anything intentional, but the client was responsible for the attorney’s conduct. I believe in that context, A.B. 40 would not protect the attorney.
Senator Care:
Do you know if there is any matter on appeal pending before the Supreme Court where this question is addressed? For example, the case Assemblyman Oceguera presented, is an appeal perhaps already on the way?
Mr. Sharp:
I do not know the answer, Senator Care.
Ernest E. Adler, Lobbyist, Washoe County:
We have a case pending before the Nevada Supreme Court on this issue. There is a U.S. Supreme Court case that says after you have fully litigated something in federal court, even if the State claims are not dismissed with prejudice, you cannot utilize the federal tolling statute to refile again in State court because it is a waiver of the State’s 11th Amendment immunity, and only the State can voluntarily waive that immunity. The reason I am here for Washoe County is because we do have a case pending before the Nevada Supreme Court. We are confident we will win under current State law, and the U.S. Supreme Court and A.B. 40 do not affect our case. If this was to pass and you had subsequent litigation, essentially you could have a case you litigated 5 years in federal court, in which the judge at the end issued an order dismissing all claims except the State-pending court claims, which he does not dismiss because he does not consider those. They could be re-litigated for another 5 years in State court against the county or the State. That is the reason Washoe County is not supportive of this bill, but there is litigation going on regarding this question.
Chairman Amodei:
Could you provide the citation for the Supreme Court case to Bradley Wilkinson?
Mr. Adler:
Yes, there are states that have passed these statutes saying they believe it is important for people to be able to litigate against the State in both federal and State court back-to-back. That is a judgment call of this committee.
Chairman Amodei:
Mr. Sharp, on page 2 of A.B. 40, section 1, subsection 2, there is an exemption for contracts under the Uniform Commercial Code. Can you tell me the rationale?
Mr. Sharp:
I do not have an answer to that. I will get the answer for you. In respect to Mr. Adler’s testimony, I do not think the intent of A.B. 40 is to add any substantive rights a litigant may have. This is a procedural issue. One thing I would like the committee to consider is that within the context of a litigant who takes a frivolous position, whether on the defense side or the plaintiff side, we have adopted the loser pay statute, which we have addressed numerous times in medical malpractice hearings. There are remedies against a lawyer who does the types of things Mr. Adler was discussing, and those are certainly not something our organization supports.
Stan Miller, Tort Claims Manager, Litigation Division, Office of the Attorney General:
Our office proposed the amendment to A.B. 40. I am here to answer any questions regarding the amendment. Perhaps I can clarify something else for the committee. It seems there is concern a case could be dismissed as a method of sanctioning the attorney. It is my belief the attorney would not be able to bring that litigation back based on this bill, because the dismissal was not based on the fact the court did not have jurisdiction.
Mr. Adler:
I would like to put this into the context of an actual case. We had a case in which I represented Washoe County, and there were three other defense attorneys. We litigated the case for approximately 5 years. We won on summary judgment eventually, and it went all the way to the Ninth Circuit Court of Appeals. The Ninth Circuit Court of Appeals told the other counsel they did not have a case. Washoe County and the other defendants spent in excess of $200,000 in attorneys’ fees.
Assemblyman Oceguera:
I believe the issue Mr. Adler is speaking of is taken care of in A.B. 40. If it is summary judgment, it is done, and we would not have the opportunity to refile under this bill. Mr. Adler is hinting the cities and counties should have immunity from these kinds of cases. I do not believe that should be the policy we put forth.
Chairman Amodei:
We have the testimony of Mr. Ebihara. I am going to leave the record open, even though we are done with the hearing on A.B. 40 for today, in case he would like to submit additional information.
Rose E. McKinney-James, Lobbyist, Clark County School District:
I want to indicate at the onset that we did not participate in the discussions on the Assembly side. When this reprint surfaced, I received comments from our general counsel, and I only had the opportunity to briefly speak with Assemblyman Oceguera this morning. I would simply like to frame some of our concerns and perhaps Mr. Miller, Mr. Sharp, or Assemblyman Oceguera can respond to those concerns, which I will attempt to put on record. The concerns are as follows: A.B. 40 would extend the statute of limitations to any action which was commenced within the statute of limitations, but subsequently dismissed for any reason other than the merits of the action; would potentially reward those who failed to prosecute their actions; would violate the 120-day rule for service of process; would violate the 5-year rule for bringing matters to trial whose cases were dismissed as a sanction; and would allow plaintiffs to shop for the right judge by allowing multiple dismissals. I did have, through electronic communication with our general counsel, the opportunity to ask him to look at the reprint to see if any of these comments would be revised or modified as a result of the first reprint, and he indicated they would remain the same.
The final concern is A.B. 40 may result in an increase in the cost of litigation to the district, and as you know, the district has a substantial amount of litigation due to its size and scope of jurisdiction. Those are the comments Mr. Hoffman wanted me to share with you. I am not a litigator, and can therefore not speak from the standpoint of the practical implications. I apologize to Assemblyman Oceguera if these issues were within the scope of the discussions in the Assembly or those that resulted in the modifications for the first reprint.
Chairman Amodei:
I will close the hearing on A.B. 40 subject to the ability of the bill sponsor to supplement, either in writing or through additional testimony.
I will open the hearing on A.B. 53.
ASSEMBLY BILL 53 (1st Reprint): Enhances criminal penalty for committing assault or battery upon certain providers of health care. (BDR 15-826)
Assemblyman Oceguera:
Assembly Bill 53 concerns NRS 200.471, which is Nevada’s criminal statute concerning assault. I have distributed copies of letters in support of A.B. 53 (Exhibit F). In general, this measure amends NRS 200.471 to provide if an assault is committed against a provider of health care, the punishment for the assault will automatically be enhanced. Let me give you a definition of assault. An assault occurs when a person intentionally places another in reasonable apprehension of immediate bodily injury. A person who is convicted of committing an assault is guilty of a misdemeanor. If an assault is committed against a person whose occupation places him or her within one of the occupational categories defined under the statute, for example, peace officer, prison guard, judge, and even taxicab driver, the punishment is automatically enhanced from a misdemeanor to a gross misdemeanor.
In reviewing the occupational categories defined under this statute, it strikes me that each category listed is an occupation, the nature of which places the employee at an increased risk of harm because of the public nature of the employee’s job duties. It seems fitting, therefore, if one of the persons performing one of the listed occupations is a victim of assault, the punishment should automatically be enhanced.
It has come to my attention that health care providers: doctors, nurses, paramedics, social workers, and so forth, are not included in the occupational categories defined in the statute. Therefore, under the criminal assault statute, if, for example, a doctor, a nurse, a student nurse, an emergency medical technician, or a paramedic is assaulted while performing his or her job duties, the assault is only punishable by a misdemeanor. Assembly Bill 53 amends NRS 200.471 to provide that if an assault is committed against a provider of health care, the punishment is automatically enhanced to a gross misdemeanor. Such an amendment would bring Nevada’s law in line with those in Arizona, California, Idaho, Iowa, and Washington, to name a few forward thinking states. Nevada’s health care providers, which include, but are not limited to, Nevada’s 3587 emergency medical technicians (EMTs), 268 emergency room physicians, and 2731 licensed nurse practitioners, are deserving of a detriment against assault and an automatic enhancement. There are health care providers in nursing and medical professions here to testify on A.B. 53.
Doreen Begley, R.N., Lobbyist, Nevada Hospital Association:
The Nevada Organization of Nurse Leaders’ president, Sandy Rush, is at the Grant Sawyer State Office Building. She was told her testimony would be transmitted via facsimile to this location. I am the nurse executive for the Nevada Hospital Association and will read my testimony (Exhibit G) on their behalf.
Lisa Black, R.N., Lobbyist, Nevada Nurses Association:
I have brought written testimony, which I will read (Exhibit H).
Chairman Amodei:
The record will indicate the testimony of Sandy Rush will be included (Exhibit I).
Lawrence P. Matheis, Lobbyist, Nevada State Medical Association:
I am the executive director of the Nevada State Medical Association. We are pleased to support A.B. 53. There is a thin line of essential services we rely on socially. Every Nevadan depends upon the police officer, the firefighter, the educator, the emergency room team, the urgent care team. Some have concerns this creates a new right. We all have the same protection. The law says we cannot be assaulted. The question is, what happens when those we rely on for essential services are assaulted? It is not just an assault on that individual. It is an assault on all of us. It weakens our defenses, socially and culturally, and it is the sad reality that health care professions report with growing alarm the violence they now face in everyday circumstances. Virtually every emergency physician I talk to has a catalog of stories of violent incidents against the physician, the nurse, or the team, and the level of violence is growing. The expectation of violence is now assumed. Those are exactly the points in our health care system that are currently most vulnerable and where we have the hardest time keeping staffing levels sufficient to ensure we can provide emergency services.
Bills such as this serve, as much as anything, a public policy purpose of showing the commitment of the people of the State of Nevada to those who provide those essential services, and in letting them know their problems are understood. I believe A.B. 53 is more important for simply what it does, than for the broader statement it makes in reaffirming why we value these various services. I encourage you to support A.B. 53.
Senator Care:
First of all, I am not going to justify whether we ever should have included some of these occupations in previous sessions. I think you could perhaps make a case that in an emergency situation, such as an ambulance attendant on the scene of a shooting or a disaster, you would not want someone interfering with the services. However, I have a difficult time with occupations such as a marriage counselor or a podiatry hygienist. There was testimony from Ms. Black about the practitioner who was killed by an estranged husband, and we have letters about disgruntled students who killed doctors, that I do not believe had anything to do with their profession. I can see the emergency situation, but I do not understand it beyond that. I am not denigrating the professions at all, but as far as carving out a niche in the law for some occupations, I agree in emergency situations, but I am not certain about outside emergency situations.
Mr. Matheis:
If restricted just to emergency responders, I believe part of the problem is we increasingly have a variety of other frontline facilities: urgent care centers, quick care centers, that are also, increasingly, scenes of violence. This is partially due to drug abuse and related things that physicians and nurses in outpatient and ambulatory settings can face. Until recently, these situations were only seen in the emergency department. Our emergency departments now are so strained and thin, we are seeing what, up until a few years ago, would only have been seen in emergency rooms, in other settings in the health care system. I believe we will begin to see the hostility and frustration in public health departments as we confront possible issues of concern about anthrax, smallpox, and so forth. We have already witnessed some tense situations a year ago when the anthrax concern arose. People panicked and there were serious security problems at public health departments.
I believe the settings in which violence occurs against health care professionals providing essential services have expanded. This is a sad commentary of where we are. I do not know if I could make a case for every one of the listed professionals for every setting, but I do not know every setting that exists. Almost all of these parties, at one time or another, or someone in one of the listed professions, have been in a setting in which there is now an enhanced possibility of assault happening to them or their colleagues.
Senator Titus:
I agree. I believe some of this is meritorious, but I am looking at a podiatry hygienist, a dental assistant, an intern pharmacist; this definition is so broad. I also wonder, you hear more about professors being shot than you do about nurses being shot, and I see school employee, but I do not know if university employees are included. There are a number of instances of violence against university professors. Are they covered in A.B. 53? They are not, and they are certainly on the frontlines as much as podiatry assistants.
Mr. Matheis:
Senator Titus, I certainly would support protecting our professors.
Senator Nolan:
There are a number of professions in A.B. 53. In 1995 I brought a bill forward that addressed emergency workers, and there was a whole line of nurses in emergency rooms, EMTs, paramedics, and doctors who came forward with stories of being battered and assaulted. There were also cases I had witnessed of nurses trying to treat people who spat on them, hit them, and sent them to the ground. My experience was limited to emergency rooms in the trauma center when these types of things were happening. We talked a lot about trying to prevent these acts and what we are doing here is enhancing the penalty for those who have already committed the act. In the case of the transit operator, that was a bill I brought forward in 1999 after a number of bus drivers were assaulted. One was knocked senseless while driving a bus carrying people. The transit industry said they were going to post signs saying according to NRS statute … if you assault a transit operator, it is an enhanced penalty with a minimum fine of $5000, and there actually was a deterring effect. They have had a decrease in the number of assaults on transit drivers. I have not yet heard how we are going to apply this to reduce the number of assault or batteries on health care providers.
Mr. Matheis:
I do believe you will see each facility deal with it in terms of their perceived risk. I believe you will see signage, and the psychological impact is there will be a sense of more protection. It is just a step, but it is an affirmative step that says there are services being done that we expect to be done, that we all mutually benefit from having done; and when someone assaults the person doing those services, they are really assaulting us collectively.
Neena K. Laxalt, Lobbyist, Nevada Podiatric Medical Association:
I am here today representing the Nevada Podiatric Medical Association and the Nevada Dental Hygienists Association to say we are in support of A.B. 53.
Debbie J. Smith, Lobbyist, Service Employees International Union Local 1107, Operating Engineers Local No. 3:
This testimony is given on behalf of health care workers from SEIU who were not able to testify from Las Vegas. At least monthly our union receives reports from nurses and other health care workers belonging to SEIU, who are victims of violence in the workplace. By way of example, a nurse in the trauma resuscitation department at University Medical Center (UMC), who was 7‑months pregnant, was inserting an intravenous line into a patient when the patient tried to kick her. The doctor working on the patient had to subdue the patient. While trying to discharge a patient from the UMC pediatric department, the charge nurse was slapped in the head and pushed into a wall. A nurse who rushed to her aid was struck as well. Nothing was done except to file a report. A pediatric triage nurse had a computer thrown at her when a parent thought she was taking too long to assess the child’s condition. A certified nurse’s assistant was slapped by a patient and wrestled to the ground in a separate incident and actually prevented the stabbing of a nurse on a third occasion.
Each year more than 1000 people die as a result of violent acts in the workplace. More than 20,000 nonfatal, violent incidents resulted in missed days of work according to the U.S. Bureau of Labor Statistics. Nonfatal incidents are most common among social service and health care workers. The Occupational Safety and Health Association cites several factors that make health care workers particularly vulnerable to violence in the workplace. The stress and trauma inherent to health care, the unrestricted movement throughout hospital facilities, more patients with chronic mental illness living in the community, and the growing number of patients with substance abuse problems and histories of violence, make nurses and health care workers uniquely vulnerable. While our members are sensitive to the stresses facing patients and their families, we cannot tolerate any patient or family member who strikes out against the caregiver. Nurses and other health care workers give their lives to make sure we get well. They are the eyes and ears for patients in the hospital, making sure patients get the best health care possible. Assembly Bill 53 sends a public message, one that we honor the commitment nurses and health care workers make to our community, and any act of violence against a health care worker will not be tolerated and will be prosecuted to the full extent of the law. We very much support A.B. 53, Mr. Chairman, and hope your committee will also.
Senator Wiener:
I am looking at the definition of assault, “intentionally placing another person in reasonable apprehension of immediate bodily harm.” Regarding the incident where the estranged husband of the patient attacked the nurse, related in the letter from Ms. Black, let us say there is a lot of anger directed at the patient and the nurses in the room. Though not directly in front of the nurse, the nurse is in the proximity and has some apprehension even though she is not a party to the threat. Would this apply to that as well with the nurse in proximity, but not the victim of the assault?
Ms. Smith:
I do not believe I am the right person to answer. Perhaps the sponsor of the bill or staff should answer that question.
Bradley Wilkinson, Committee Counsel:
I believe it is up to the prosecutor to decide whether that would meet the definition of intentionally placing a person in reasonable apprehension of immediate bodily harm. Under those circumstances, it seems to me unlikely you would have a prosecution if it were not directed at a specific person.
Senator Wiener:
If a person is flailing about in anger, all he would have to do is turn his attention toward someone else in the room, even though not the intended party. I am trying to see how far this reaches, because there is an enhancement penalty.
Mr. Wilkinson:
It is fact specific, so it is difficult to answer that question without knowing the exact circumstances.
Carin Ralls, R.N.:
I am representing Operating Engineers Local #3 and over 800 Nevada health care providers. We are here in support of A.B. 53. The U.S. Bureau of Justice Statistics reports that during 1993 to 1999, an average of 1.7 million violent victimizations per year were committed in the workplace. Of that number, 429,000 per year occurred against nurses alone as compared to 84,400 taxi drivers, who this statute already protects. Working as a nurse, I have been physically attacked. Researchers have found that emergency room nurses believed violence was a part of their job. Why should we allow the abnormal to become normal in our workplace? On behalf of health care providers and myself, we urge you to pass A.B. 53.
Mary C. Walker, Lobbyist, Carson-Tahoe Hospital:
For the record, I would like to say violence occurs not only in the urban settings, but also in smaller, rural settings. We have had instances in Carson‑Tahoe Hospital of assaults and stalking of nurses and health care workers. We would appreciate your support of A.B. 53.
Senator McGinness:
You said you had a stalking problem? Is that because they were medical workers or was it personal?
Ms. Walker:
It was because they were medical workers caring for patients. They were stalked afterwards.
Chairman Amodei:
Assemblyman Oceguera, could you tell me what the amendment was in your committee on the Assembly side?
Assemblyman Oceguera:
Mr. Chairman, two things, the first is I forgot to include battery. The assault and battery statutes are mirrored, and I did not add battery to the charge. That was one amendment, and I believe the other amendment added a laboratory technician and deleted clinical from therapist in order to include any therapist.
Chairman Amodei:
Mr. Wilkinson, I am looking for either new or existing language that talks about the new people in section 1, subsection 1, paragraph (c), being in the scope and course of their employment when the crime occurs.
Mr. Wilkinson:
Actually, the way the statute reads, as an element of the crime, the person has to be performing his duty, and the person charged has to know or should know the person is acting in that category.
Chairman Amodei:
Where is that?
Mr. Wilkinson:
Page 2, line 39 of A.B. 53, states the person is performing his duty.
Chairman Amodei:
Committee, I do not know whether you want to attempt to refine the listing in A.B. 53 in committee or on the floor?
Subject to anybody on the committee who feels strongly and comes up with an amendment on the floor to refine the list, I think the policy issue is fairly defined. In the context of it getting late in March, I would accept a motion to do pass, unless somebody has an amendment in mind right now.
Senator Nolan:
I will make a motion to do pass, but I really think we need an amendment that exempts these people if, for example, a podiatrist is trying to remove an ingrown toenail or a dentist drills without anesthetic.
Chairman Amodei:
Is there discussion regarding potential floor action or anything else on the motion to do pass?
SENATOR NOLAN MOVED TO DO PASS A.B. 53.
SENATOR TITUS SECONDED THE MOTION.
Senator Care:
I will meet with Senator Nolan about a possible amendment on the floor. I have already expressed my perhaps narrower reading of what we need to do here, but as an underlying policy decision, I do not have a problem with the bill.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman Amodei:
Seeing no further business to come before the committee, we are adjourned at 9:25 a.m.
The meeting is reconvened at 9:26 a.m. to introduce Bill Draft Request (BDR) 14‑441.
BILL DRAFT REQUEST 14-441: Revises various provisions governing sex offenders and offenders convicted of crime against child. (Later introduced as Senate Bill 397.)
SENATOR MCGINNESS MOVED TO INTRODUCE BDR 14-441 TO THE COMMITTEE.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman Amodei:
The meeting is adjourned at 9:27 a.m.
RESPECTFULLY SUBMITTED:
Jo Greenslate,
Committee Secretary
APPROVED BY:
Senator Mark E. Amodei, Chairman
DATE: