What Nevada's doctors wanted Tuesday, the electorate delivered. What Nevada's trial attorneys wanted, the electorate denied.
But don't be surprised if the Nevada Supreme Court has the last word.
Question 3, the physician-backed initiative to limit pain-and-suffering awards in medical malpractice cases, had approval from 60 percent of the state's voters late Tuesday.
Trial lawyer-backed Questions 4 and 5, which were opposed by doctors who said the measures would undo Question 3, had received 34 percent and 37 percent approval, respectively, from voters.
"We felt very confident Question 3 would pass," said Dr. Rudy Manthei, leader of the Keep Our Doctors in Nevada campaign.
Manthei credited voters for understanding that lawyers had hidden malpractice agendas in the Question 4 and 5 initiatives, which were on the ballot as The Insurance Rate and Reform and Reduction Act and the Stop Frivolous Lawsuits and Protect Your Legal Rights Act.
Chris Brown, a 46-year-old nurse who moved from California in December, echoed dozens of voters in saying she found the language of ballot questions baffling.
She said she knew how she felt about medical malpractice, but she found the ballot questions difficult to sort out.
"A lot of the ballot questions are confusing," she said. "A lay person can't really understand the pros and cons."
With the passage of Question 3, exceptions for gross negligence and exceptional circumstances are removed from the existing $350,000 cap on noneconomic, or pain-and-suffering, damages.
Doctors think that stabilizing pain-and-suffering recoveries will enable their malpractice insurers, who have had to speculate on what future awards would be, to offer lower premiums. Unless malpractice premiums are lowered in Nevada, many doctors have said they will move to states where insurance rates are lower.
Though the new law will go into effect later this month, trial attorney Gerald Gillock said he expects its constitutionality will be tested soon.
"It will never pass constitutional muster," he predicted.
The new law does not allow third parties, such as Medicaid, to recover expenses paid on behalf of a medical malpractice victim, Gillock said. "So the taxpayers will get stuck with the bill," he said. "There's no way that is constitutional. "
He said that because the new law limits lawyers' contingency fees, that means people will not be able to choose the attorneys they want. "That, I believe, also will be found unconstitutional," he said.
Manthei said he expects a court test, but he is sure physicians will prevail.
Insurance executives have said that lower malpractice insurance premiums will not be possible until the constitutionality of Question 3 is upheld.
The new law also changes how certain damages are paid by health care providers who have been found negligent.
It requires that, when an award equals or exceeds $50,000 in future damages, the court must allow the same to be paid in periodic payments instead of a lump sum, if requested by either party. Doctors think that provision will mean fewer lawsuits because lawyers' financial gain will be delayed.
The statute of limitations for filing actions is changed under the new law. Current law provides that, if the injury was not immediately apparent, the injured person has two years from the time the person discovers or should have discovered the injury to file the lawsuit. Passage of Question 3 reduces that to one year.
Though attorneys said passage of Question 4 could mean auto insurance premiums would be cut by 20 percent, state government officials said that was doubtful. Doctors said that a provision in Question 4 could end up wiping out limitations on compensation awarded by juries.
While Question 5 would penalize attorneys who engage in meritless lawsuits, doctors said that the measure was a malpractice bill that would ensure that there would be no limit on attorneys' fees, no interference with a jury award and no limitation on damages.
"The people were able to figure out the basic principles of 4 and 5," Manthei said.
