INITIATIVE PETITION

February 21, 2003

____________

 

Referred to Committee on Judiciary

 

SUMMARY—Makes various changes relating to certain actions against providers of health care.

 

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to medical malpractice; limiting attorney’s fees in actions against providers of health care; eliminating the exceptions pertaining to noneconomic damages; making changes concerning the payment of damages; revising the statute of limitations for the filing of actions; eliminating joint and several liability; making various other changes concerning such actions; and providing for other matters properly relating thereto.

 

1-1  Whereas, There exists a major health care crisis in this state

1-2  attributable to the skyrocketing cost of medical malpractice

1-3  insurance; and

1-4  Whereas, Such skyrocketing medical malpractice insurance

1-5  costs have resulted in a potential breakdown in the delivery of health

1-6  care in this state, severe hardships concerning the availability of

1-7  health care for the medically indigent, a denial of access to health

1-8  care for the economically marginal, and the depletion of physicians

1-9  such as to substantially worsen the quality of health care available to

1-10  the residents of this state; and

1-11      Whereas, It is necessary to provide an adequate and reasonable

1-12  remedy to address this health care crisis and to protect the health,

1-13  welfare and safety of the residents of this state; now, therefore,

 

1-14  THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

1-15  SENATE AND ASSEMBLY DO ENACT AS FOLLOWS:

 

 

 

2-1  Section 1. Chapter 7 of NRS is hereby amended by adding

2-2  thereto a new section to read as follows:

2-3  1.  An attorney shall not contract for or collect a fee

2-4  contingent on the amount of recovery for representing a person

2-5  seeking damages in connection with an action for injury or death

2-6  against a provider of health care based upon professional

2-7  negligence in excess of:

2-8  (a) Forty percent of the first $50,000 recovered;

2-9  (b) Thirty-three and one-third percent of the next $50,000

2-10  recovered;

2-11      (c) Twenty-five percent of the next $500,000 recovered; and

2-12      (d) Fifteen percent of the amount of recovery that exceeds

2-13  $600,000.

2-14      2.  The limitations set forth in subsection 1 apply to all forms

2-15  of recovery, including, without limitation, settlement, arbitration

2-16  and judgment.

2-17      3.  For the purposes of this section, “recovered” means the net

2-18  sum recovered by the plaintiff after deducting any disbursements

2-19  or costs incurred in connection with the prosecution or settlement

2-20  of the claim. Costs of medical care incurred by the plaintiff and

2-21  general and administrative expenses incurred by the office of the

2-22  attorney are not deductible disbursements or costs.

2-23      4.  As used in this section:

2-24      (a) “Professional negligence” means a negligent act or

2-25  omission to act by a provider of health care in the rendering of

2-26  professional services, which act or omission is the proximate cause

2-27  of a personal injury or wrongful death. The term does not include

2-28  services that are outside the scope of services for which the

2-29  provider of health care is licensed or services for which any

2-30  restriction has been imposed by the applicable regulatory board or

2-31  health care facility.

2-32      (b) “Provider of health care” means a physician licensed

2-33  under chapter 630 or 633 of NRS, dentist, registered nurse,

2-34  dispensing optician, optometrist, registered physical therapist,

2-35  podiatric physician, licensed psychologist, chiropractor, doctor of

2-36  Oriental medicine, medical laboratory director or technician, or a

2-37  licensed hospital and its employees.

2-38      Sec. 2.  Chapter 41A of NRS is hereby amended by adding

2-39  thereto the provisions set forth as sections 3 to 6, inclusive, of this

2-40  act.

2-41      Sec. 3.  “Professional negligence” means a negligent act or

2-42  omission to act by a provider of health care in the rendering of

2-43  professional services, which act or omission is the proximate cause

2-44  of a personal injury or wrongful death. The term does not include

2-45  services that are outside the scope of services for which the

3-1  provider of health care is licensed or services for which any

3-2  restriction has been imposed by the applicable regulatory board or

3-3  health care facility.

3-4  Sec. 4.  “Provider of health care” means a physician licensed

3-5  under chapter 630 or 633 of NRS, dentist, licensed nurse,

3-6  dispensing optician, optometrist, registered physical therapist,

3-7  podiatric physician, licensed psychologist, chiropractor, doctor of

3-8  Oriental medicine, medical laboratory director or technician, or a

3-9  licensed hospital and its employees.

3-10      Sec. 5.  In an action for injury or death against a provider of

3-11  health care based upon professional negligence, the injured

3-12  plaintiff may recover noneconomic damages, but the amount of

3-13  noneconomic damages awarded in such an action must not exceed

3-14  $350,000.

3-15      Sec. 6.  1.  In an action for injury or death against a

3-16  provider of health care based upon professional negligence, each

3-17  defendant is liable to the plaintiff for economic damages and

3-18  noneconomic damages severally only, and not jointly, for that

3-19  portion of the judgment which represents the percentage of

3-20  negligence attributable to the defendant.

3-21      2.  This section is intended to abrogate joint and several

3-22  liability of a provider of health care in an action for injury or

3-23  death against the provider of health care based upon professional

3-24  negligence.

3-25      Sec. 7.  NRS 41A.003 is hereby amended to read as follows:

3-26      41A.003  As used in this chapter, unless the context otherwise

3-27  requires, the words and terms defined in NRS 41A.004 to 41A.013,

3-28  inclusive, and sections 3 and 4 of this act have the meanings

3-29  ascribed to them in those sections.

3-30      Sec. 8.  NRS 41A.097 is hereby amended to read as follows:

3-31      41A.097  1.  Except as otherwise provided in subsection 3, an

3-32  action for injury or death against a provider of health care may not

3-33  be commenced more than 4 years after the date of injury or 2 years

3-34  after the plaintiff discovers or through the use of reasonable

3-35  diligence should have discovered the injury, whichever occurs first,

3-36  for:

3-37      (a) Injury to or the wrongful death of a person occurring before

3-38  October 1, 2002, based upon alleged professional negligence of the

3-39  provider of health care;

3-40      (b) Injury to or the wrongful death of a person occurring before

3-41  October 1, 2002, from professional services rendered without

3-42  consent; or

3-43      (c) Injury to or the wrongful death of a person occurring before

3-44  October 1, 2002, from error or omission in practice by the provider

3-45  of health care.

4-1  2.  Except as otherwise provided in subsection 3, an action for

4-2  injury or death against a provider of health care may not be

4-3  commenced more than 3 years after the date of injury or [2 years] 1

4-4  year after the plaintiff discovers or through the use of reasonable

4-5  diligence should have discovered the injury, whichever occurs first,

4-6  for:

4-7  (a) Injury to or the wrongful death of a person occurring on or

4-8  after October 1, 2002, based upon alleged professional negligence of

4-9  the provider of health care;

4-10      (b) Injury to or the wrongful death of a person occurring on or

4-11  after October 1, 2002, from professional services rendered without

4-12  consent; or

4-13      (c) Injury to or the wrongful death of a person occurring on or

4-14  after October 1, 2002, from error or omission in practice by the

4-15  provider of health care.

4-16      3.  This time limitation is tolled for any period during which the

4-17  provider of health care has concealed any act, error or omission

4-18  upon which the action is based and which is known or through the

4-19  use of reasonable diligence should have been known to him.

4-20      4.  For the purposes of this section, the parent, guardian or legal

4-21  custodian of any minor child is responsible for exercising reasonable

4-22  judgment in determining whether to prosecute any cause of action

4-23  limited by subsection 1 or 2. If the parent, guardian or custodian

4-24  fails to commence an action on behalf of that child within the

4-25  prescribed period of limitations, the child may not bring an action

4-26  based on the same alleged injury against any provider of health care

4-27  upon the removal of his disability, except that in the case of:

4-28      (a) Brain damage or birth defect, the period of limitation is

4-29  extended until the child attains 10 years of age.

4-30      (b) Sterility, the period of limitation is extended until 2 years

4-31  after the child discovers the injury.

4-32      [5.  As used in this section, “provider of health care” means a

4-33  physician licensed under chapter 630 or 633 of NRS, a dentist,

4-34  registered nurse, dispensing optician, optometrist, registered

4-35  physical therapist, podiatric physician, licensed psychologist,

4-36  chiropractor, doctor of Oriental medicine, medical laboratory

4-37  director or technician, or a licensed hospital as the employer of any

4-38  such person.]

4-39      Sec. 9.  Chapter 42 of NRS is hereby amended by adding

4-40  thereto a new section to read as follows:

4-41      1.  In an action for injury or death against a provider of

4-42  health care based upon professional negligence, if the defendant

4-43  so elects, the defendant may introduce evidence of any amount

4-44  payable as a benefit to the plaintiff as a result of the injury or

4-45  death pursuant to the United States Social Security Act, any state

5-1  or federal income disability or worker’s compensation act, any

5-2  health, sickness or income-disability insurance, accident

5-3  insurance that provides health benefits or income-disability

5-4  coverage, and any contract or agreement of any group,

5-5  organization, partnership or corporation to provide, pay for or

5-6  reimburse the cost of medical, hospital, dental or other health care

5-7  services. If the defendant elects to introduce such evidence, the

5-8  plaintiff may introduce evidence of any amount that the plaintiff

5-9  has paid or contributed to secure his right to any insurance

5-10  benefits concerning which the defendant has introduced evidence.

5-11      2.  A source of collateral benefits introduced pursuant to

5-12  subsection 1 may not:

5-13      (a) Recover any amount against the plaintiff; or

5-14      (b) Be subrogated to the rights of the plaintiff against a

5-15  defendant.

5-16      3.  In an action for injury or death against a provider of

5-17  health care based upon professional negligence, a district court

5-18  shall, at the request of either party, enter a judgment ordering that

5-19  money damages or its equivalent for future damages of the

5-20  judgment creditor be paid in whole or in part by periodic payments

5-21  rather than by a lump-sum payment if the award equals or exceeds

5-22  $50,000 in future damages.

5-23      4.  In entering a judgment ordering the payment of future

5-24  damages by periodic payments pursuant to subsection 3, the court

5-25  shall make a specific finding as to the dollar amount of periodic

5-26  payments that will compensate the judgment creditor for such

5-27  future damages. As a condition to authorizing periodic payments

5-28  of future damages, the court shall require a judgment debtor who

5-29  is not adequately insured to post security adequate to assure full

5-30  payment of such damages awarded by the judgment. Upon

5-31  termination of periodic payments of future damages, the court

5-32  shall order the return of this security, or so much as remains, to

5-33  the judgment debtor.

5-34      5.  A judgment ordering the payment of future damages by

5-35  periodic payments entered pursuant to subsection 3 must specify

5-36  the recipient or recipients of the payments, the dollar amount of

5-37  the payments, the interval between payments, and the number of

5-38  payments or the period of time over which payments will be made.

5-39  Such payments must only be subject to modification in the event of

5-40  the death of the judgment creditor. Money damages awarded for

5-41  loss of future earnings must not be reduced or payments

5-42  terminated by reason of the death of the judgment creditor, but

5-43  must be paid to persons to whom the judgment creditor owed a

5-44  duty of support, as provided by law, immediately before his death.

5-45  In such cases, the court that rendered the original judgment may,

6-1  upon petition of any party in interest, modify the judgment to

6-2  award and apportion the unpaid future damages in accordance

6-3  with this subsection.

6-4  6.  If the court finds that the judgment debtor has exhibited a

6-5  continuing pattern of failing to make the periodic payments as

6-6  specified pursuant to subsection 5, the court shall find the

6-7  judgment debtor in contempt of court and, in addition to the

6-8  required periodic payments, shall order the judgment debtor to pay

6-9  the judgment creditor all damages caused by the failure to make

6-10  such periodic payments, including, but not limited to, court costs

6-11  and attorney’s fees.

6-12      7.  Following the occurrence or expiration of all obligations

6-13  specified in the periodic payment judgment, any obligation of the

6-14  judgment debtor to make further payments ceases and any security

6-15  given pursuant to subsection 4 reverts to the judgment debtor.

6-16      8.  As used in this section:

6-17      (a) “Future damages” includes damages for future medical

6-18  treatment, care or custody, loss of future earnings, loss of bodily

6-19  function, or future pain and suffering of the judgment creditor.

6-20      (b) “Periodic payments” means the payment of money or

6-21  delivery of other property to the judgment creditor at regular

6-22  intervals.

6-23      (c) “Professional negligence” means a negligent act or

6-24  omission to act by a provider of health care in the rendering of

6-25  professional services, which act or omission is the proximate cause

6-26  of a personal injury or wrongful death. The term does not include

6-27  services that are outside the scope of services for which the

6-28  provider of health care is licensed or services for which any

6-29  restriction has been imposed by the applicable regulatory board or

6-30  health care facility.

6-31      (d) “Provider of health care” means a physician licensed

6-32  under chapter 630 or 633 of NRS, dentist, licensed nurse,

6-33  dispensing optician, optometrist, registered physical therapist,

6-34  podiatric physician, licensed psychologist, chiropractor, doctor of

6-35  Oriental medicine, medical laboratory director or technician, or a

6-36  licensed hospital and its employees.

6-37      Sec. 10.  NRS 41A.031, 41A.041 and 42.020 are hereby

6-38  repealed.

6-39      Sec. 11.  If any provision of this act, or the application thereof

6-40  to any person, thing or circumstance is held invalid, such invalidity

6-41  shall not affect the provisions or application of this act which can be

6-42  given effect without the invalid provision or application, and to this

6-43  end the provisions of this act are declared to be severable.

7-1  Sec. 12.  The amendatory provisions of sections 5, 6 and 8 of

7-2  this act apply only to a cause of action that accrues on or after the

7-3  effective date of this act.

 

7-4  TEXT OF REPEALED SECTIONS

 

7-5  41A.031  Limitations on liability for noneconomic damages;

7-6   exceptions.

7-7  1.  Except as otherwise provided in subsection 2 and except as

7-8   further limited in subsection 3, in an action for damages for medical

7-9   malpractice or dental malpractice, the noneconomic damages

7-10   awarded to each plaintiff from each defendant must not exceed

7-11   $350,000.

7-12      2.  In an action for damages for medical malpractice or dental

7-13   malpractice, the limitation on noneconomic damages set forth in

7-14   subsection 1 does not apply in the following circumstances and

7-15   types of cases:

7-16      (a) A case in which the conduct of the defendant is determined

7-17   to constitute gross malpractice; or

7-18      (b) A case in which, following return of a verdict by the jury or

7-19   a finding of damages in a bench trial, the court determines, by clear

7-20   and convincing evidence admitted at trial, that an award in excess

7-21   of $350,000 for noneconomic damages is justified because of

7-22   exceptional circumstances.

7-23      3.  Except as otherwise provided in subsection 4, in an action

7-24   for damages for medical malpractice or dental malpractice, in the

7-25   circumstances and types of cases described in subsections 1 and 2,

7-26   the noneconomic damages awarded to each plaintiff from each

7-27   defendant must not exceed the amount of money remaining under

7-28   the professional liability insurance policy limit covering the

7-29   defendant after subtracting the economic damages awarded to that

7-30   plaintiff. Irrespective of the number of plaintiffs in the action, in no

7-31   event may any single defendant be liable to the plaintiffs in the

7-32   aggregate in excess of the professional liability insurance policy

7-33   limit covering that defendant.

7-34      4.  The limitation set forth in subsection 3 does not apply in an

7-35   action for damages for medical malpractice or dental malpractice

7-36   unless the defendant was covered by professional liability insurance

7-37   at the time of the occurrence of the alleged malpractice and on the

7-38   date on which the insurer receives notice of the claim, in an amount

7-39   of:

7-40      (a) Not less than $1,000,000 per occurrence; and

8-1  (b) Not less than $3,000,000 in the aggregate.

8-2  5.  This section is not intended to limit the responsibility of any

8-3   defendant for the total economic damages awarded.

8-4  6.  For the purposes of this section, “gross malpractice” means

8-5   failure to exercise the required degree of care, skill or knowledge

8-6   that amounts to:

8-7  (a) A conscious indifference to the consequences which may

8-8   result from the gross malpractice; and

8-9  (b) A disregard for and indifference to the safety and welfare of

8-10   the patient.

8-11      41A.041  Medical malpractice: Several liability for

8-12   noneconomic damages.

8-13      1.  In an action for damages for medical malpractice, each

8-14   defendant is liable for noneconomic damages severally only, and

8-15   not jointly, to the plaintiff only for that portion of the judgment

8-16   which represents the percentage of negligence attributable to the

8-17   defendant.

8-18      2.  As used in this section, “medical malpractice” means the

8-19   failure of a physician, hospital, employee of a hospital, certified

8-20   nurse midwife or certified registered nurse anesthetist in rendering

8-21   services to use the reasonable care, skill or knowledge ordinarily

8-22   used under similar circumstances.

8-23      42.020  Actions for damages for medical malpractice:

8-24   Reduction of damages by amount previously paid or

8-25   reimbursed; payment of future economic damages.

8-26      1.  Except as otherwise provided in subsection 2, in any action

8-27   for damages for medical malpractice, the amount of damages, if

8-28   any, awarded in the action must be reduced by the amount of any

8-29   prior payment made by or on behalf of the provider of health care

8-30   against whom the action is brought to the injured person or to the

8-31   claimant to meet reasonable expenses of medical care, other

8-32   essential goods or services or reasonable living expenses.

8-33      2.  In any action described in subsection 1 in which liability for

8-34   medical malpractice is established or admitted, the court shall,

8-35   before the entry of judgment, hold a separate hearing to determine

8-36   if any expenses incurred by the claimant for medical care, loss of

8-37   income or other financial loss have been paid or reimbursed as a

8-38   benefit from a collateral source. If the court determines that a

8-39   claimant has received such a benefit, the court shall reduce the

8-40   amount of damages, if any, awarded in the action by the amount of

8-41   the benefit. The amount so reduced must not include any amount

8-42   for which there is a right of subrogation to the rights of the claimant

8-43   if the right of subrogation is exercised by serving a notice of lien on

8-44   the claimant before the settlement of or the entry of judgment in the

8-45   action. Notice of the action must be provided by the claimant to any

8-46   statutory holder of a lien.

9-1  3.  If future economic damages are awarded in an action for

9-2  medical malpractice, the court may, at the request of the claimant,

9-3   order the award to be paid:

9-4  (a) In a lump sum which has been reduced to its present value as

9-5   determined by the trier of fact and approved by the court; or

9-6  (b) Subject to the provisions of subsections 5 and 6 and the

9-7   discretion of the court, in periodic payments either by an annuity

9-8   purchased to provide periodic payments or by other means if the

9-9   defendant posts an adequate bond or other security to ensure full

9-10   payment by periodic payments of the damages awarded by the

9-11   judgment.

9-12  As used in this subsection, “future economic damages” includes

9-13   damages for future medical treatment, care or custody, and loss of

9-14   future earnings.

9-15      4.  If the claimant receives periodic payments pursuant to

9-16   paragraph (b) of subsection 3, the award must not be reduced to its

9-17   present value. The amount of the periodic payments must be equal

9-18   to the total amount of all future damages awarded by the trier of

9-19   fact and approved by the court. The period for which the periodic

9-20   payments must be made must be determined by the trier of fact and

9-21   approved by the court. Before the entry of judgment, each party

9-22   shall submit to the court a plan specifying the recipient of the

9-23   payments, the amount of the payments and a schedule of periodic

9-24   payments for the award. Upon receipt and review of the plans, the

9-25   court shall specify in its judgment rendered in the action the

9-26   recipient of the payments, the amount of the payments and a

9-27   schedule of payments for the award.

9-28      5.  If an annuity is purchased pursuant to paragraph (b) of

9-29   subsection 3, the claimant shall select the provider of the annuity.

9-30   Upon purchase of the annuity, the claimant shall:

9-31      (a) Execute a satisfaction of judgment or a stipulation for

9-32   dismissal of the claim with prejudice; and

9-33      (b) Release forever the defendant and his insurer, if any, from

9-34   any obligation to make periodic payments pursuant to the award.

9-35      6.  If the defendant posts a bond or other security pursuant to

9-36   paragraph (b) of subsection 3, upon termination of the payment of

9-37   periodic payments of damages, the court shall order the return of

9-38   the bond or other security, or as much as remains, to the defendant.

9-39      7.  As used in this section:

9-40      (a) “Benefit from a collateral source” means any money, service

9-41   or other benefit which is paid or provided or is reasonably likely to

9-42   be paid or provided to a claimant for personal injury or wrongful

9-43   death pursuant to:

10-1          (1) A state or federal act which provides benefits for

10-2  sickness, disability, accidents, loss of income or workers’

10-3   compensation;

10-4          (2) A policy of insurance which provides health benefits or

10-5   coverage for loss of income;

10-6          (3) A contract of any group, organization, partnership or

10-7   corporation which provides, pays or reimburses the cost of medical,

10-8   hospital or dental benefits or benefits for loss of income; or

10-9          (4) Any other publicly or privately funded program which

10-10   provides such benefits.

10-11     (b) “Medical malpractice” has the meaning ascribed to it in NRS

10-12   41A.009.

 

10-13  H