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Malpractice: Don’t overreact

Nevada Appeal editorial board

It’s clear Nevada’s doctors are being squeezed for medical malpractice insurance, and the high rates are pushing them out of the state. But Nevada shouldn’t resort to a cap on jury awards as a quick fix, because the ultimate victim will be an innocent patient.

In the short run, of course, sick and injured people already are being victimized. Fewer doctors — especially obstetricians and emergency doctors — mean it’s harder to get treatment, and the cost of medical care must reflect the skyrocketing insurance premiums doctors are paying.

So the answer is to drive down malpractice insurance costs, while at the same time adequately protecting patients from negligent doctors.

A cap may accomplish the former, but not the latter. In California, the most restrictive state, there is a $250,000 cap on non-economic damages, which seems far too low.

Nevada could set a higher figure — $1 million? $2 million — but any such figure seems arbitrary.

Are doctors to blame? That seems unlikely. In all the thousands of medical procedures conducted in the state last year, only 219 malpractice cases were filed. A few are negligent, but all pay high premiums.

Are trial lawyers to blame? Like medical malpractice cases themselves, a few draw a lot of attention when they win huge awards — and collect more in fees than the victims collect in damages.

But most are doing the job they are hired to do, which is to represent a person who believes he has been seriously injured by negligence. We put our trust in the justice system, particularly juries and judges, to make legitimate awards.

That leaves the insurance companies, which appear to us to be the real culprits in this crisis. St. Paul Insurance Cos. was insuring 60 percent of the doctors in Clark County — mainly because it bought out a doctor-formed mutual insurance company in the 1970s — before it pulled out of the malpractice insurance market in December.

The company noted it was spending $2 on litigation costs in Nevada for every $1 it was getting in premiums. It made little, however, of the fact it lost $108 million in investments in the Enron collapse, far more than all Nevada medical malpractice claims.

As Insurance Commissioner Alice Molasky-Arman pointed out, she can’t arbitrarily suppress insurance rates. But she can look long and hard at rates that, for some physicians, are quadrupling in a matter of months.

Nevada already has one of the better systems in the United States, because it requires malpractice cases to go through a screening panel of physicians. In other words, frivilous cases seldom go to court.

Nevada’s doctors, lawyers and legislators can help most by quickly setting up a new mutual insurance company for the medical profession. They can also hire a full time screening board, to increase the level of expertise and cut down the backlog of cases.

Legislators can then look at other remedies, but a cap should be the last alternative.

While insurance rates are causing a short-term crisis in Nevada, it would be an overreaction to attempt to solve it by amputating patients’ rights.