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Mar. 06, 2008
Copyright © Las Vegas Review-Journal

Lawyers: Pain, suffering cap won't bring justice

By JENNIFER ROBISON
REVIEW-JOURNAL
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Endoscopy Center of Southern Nevada patient Karen Sjolie is scheduled Friday for a blood test for hepatitis C and B and HIV. She has retained attorney Robert Eglet to represent her.
Photo by John Gurzinski

Just as local trial attorneys begin preparing massive class-action cases against the Endoscopy Center of Southern Nevada, they're running into a potentially big roadblock: a $350,000 state cap on emotional damages in medical-malpractice lawsuits.

The limit applies to compensation for pain and suffering, but it places no restrictions on damages related to medical care, lost wages, living expenses and other direct costs.

Now, lawyers are looking for ways around the pain-and-suffering cap, which Nevada voters approved in a 2004 ballot question.

Robert Eglet, a senior partner in Mainor Eglet Cottle, said his law firm filed several types of claims in two class actions on Monday and Tuesday, as well as a civil case on Wednesday. On top of medical malpractice, Eglet's clients are suing the clinic's operators for fraud, civil conspiracy and negligent hiring, training and supervision. Eglet and other attorneys also are suing for product liability.

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    • A civil-conspiracy case Eglet filed Wednesday includes not just the center's doctors, but also its nurses, physicians' assistants and sister companies. The idea: If lawyers can move claims beyond malpractice alone, they can seek pain-and-suffering damages well beyond the $350,000 cap.

    Eglet acknowledged that attempts to avoid the ceiling on emotional damages will be an "uphill battle," but he said justice for his clients demanded the effort.

    "Imagine someone who's 25 years old and infected with hepatitis or HIV," Eglet said. "They're going to have to live the remainder of their life receiving treatment and changing their lifestyle. Their pain and suffering, their loss of enjoyment of life -- under current law, (compensation) is capped at $350,000."

    Other attorneys and malpractice insurers question the multiple-claims tack. And insurers say attempts to bypass the limit could worsen what's already shaping up to be an epic event in the state's malpractice-liability history.

    Richard Harris, managing partner of the Richard Harris Law Firm in Las Vegas, said claims for negligence, fraud or racketeering could push a case beyond the cap. Those claims also could remove a case from the scope of malpractice insurance, he said. That means a doctor's insurer wouldn't be on the hook for damages unrelated to malpractice.

    James Marx, president of malpractice insurer Nevada Docs Medical Risk Retention Group, agreed that liability insurance wouldn't compensate patients for claims outside malpractice. The only likely avenue for payouts based on fraud or negligence charges, then, would be through seizing doctors' personal assets.

    Eglet said the courts would allow plaintiffs to chase defendants' personal assets if patients win claims that insurance won't cover. Lawyers could perform a "debtors' exam," a deposition designed to pinpoint assets available for satisfying claims.

    Larry Matheis, executive director of the Nevada State Medical Society, said it's too early to consider what damages might be available.

    "As frustrating as I'm sure this is to lawyers who see a lot of swill in the trough, I think they're just going to have to wait until the facts get clarified and we see just how extensive the risks and actual damages were," Matheis said. "It will be sorted out, but not by public speculation. It's going to be done through a very closely reasoned legal process.

    "Nobody has to show restraint here, but everybody should," Matheis added. "The problem is, restraint has gone out the window, and perspective is very difficult to gain. People are trying to answer every question, but answers have to be based on what we actually know."

    What trial attorneys know, they say, is that the Endoscopy Center case has proven that doctors will abuse caps on pain and suffering.

    When the Legislature passed a bill in 2002 limiting noneconomic damages to $350,000 per malpractice claim, lawmakers carved out two exemptions: gross malpractice and "exceptional circumstances." Doctors, including Endoscopy Center owner Dipak Desai, mounted a ballot initiative that stripped the two exceptions from the law. The end result: no exceptions, and little recourse for patients, attorneys say.

    Eglet said he had received around 2,000 calls from consumers by Tuesday afternoon and had signed up "well over" 400 clients. Thirteen of them have tested positive for hepatitis C and one has tested positive for HIV.

    Harris also has fielded hundreds of calls a day since the Southern Nevada Health District revealed the results of its investigation at the clinic. He said Tuesday afternoon that he had uncovered at least half a dozen new cases of hepatitis beyond what the health agency had reported.

    "Hopefully, this takes the heat off lawyers and puts it back on the medical community, where it belongs," Harris said. "There's absolutely no rhyme or reason to singling out victims of medical malpractice and limiting their damages."

    Actually, Marx and Matheis said, important reasons spurred the cap on noneconomic damages.

    The potential for unpredictably excessive pain-and-suffering judgments forced malpractice insurers to abandon the Nevada market in 2001 and 2002, Marx said. Doctors who couldn't find liability coverage were packing up and leaving the state, causing acute physician shortages in practice areas such as obstetrics.

    The ballot question restored some stability in the world of medical torts, Marx said.

    "No one wants to minimize the hardship and anxiety this situation causes, but we really can't put a number on worry and pain," said Marx, who insures only nonsurgical practitioners and has no business relationship with the Endoscopy Center. "If we give an unlimited amount of damages to these patients, someone pays for that. It doesn't come from the insurance company. It's all taken from the doctors. There's a substantial load passed on to doctors, and subsequently to patients, that society has to pay. Someone has decided that $350,000 is reasonable. It's not exorbitant, and it's not minimal."

    Matheis agreed, citing a "lottery mentality" that forced up insurance costs in the early 2000s.

    Even with limits on pain-and-suffering claims, the Endoscopy Center case, with its 40,000 affected patients, could yield another spike in malpractice rates, Marx said.

    Attorneys said they couldn't predict what the total damages might end up being in the case. But Marx noted that some attorneys will attempt to lasso referring primary-care doctors into the case, even if those doctors didn't know about the Endoscopy Center's practices. It's difficult to determine how many claims will emerge.

    Just getting a case against a referring doctor dismissed could cost an insurance company $5,000 to $10,000 per doctor, Marx said. For physicians accused of real wrongdoing, legal-defense costs could climb to between $20,000 and $100,000 per case. And that's before you throw in damages.

    Because malpractice insurance covers a specific, small pool of just a few thousand doctors, all doctors will feel the result of tens of thousands of patients seeking tens of thousands of dollars in damages each, Marx said.

    "It would be foolish to say this won't have any impact on malpractice rates," he said. "As always, the costs are going to be unevenly distributed among people who probably have little, if any, blame in this situation."

    Trial attorneys aren't fazed.

    "It's a drop in the bucket compared to the industry as a whole and the ability of insurance companies to rebound. This is the same industry that rebounded from Hurricane Katrina and the World Trade Center attacks," Harris said. "Insurance companies rule the world. They've got it figured out to where they can take your money and not give it back."

    Contact reporter Jennifer Robison at jrobison@reviewjournal.com or (702) 380-4512.

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    Glen Lerner wrote on March 06, 2008 11:55 PM: Hey there Glen Lerner here- If any of you have have Rabies, Scabies, Hep A-B-C, Or all of the above I would like you to get in on this action! I already have 30 people in on this class action lawsuit! Were gonna do it big- ! call thats all call 877-1500


    Lou wrote on March 06, 2008 11:26 PM: Comments like those from Richard Harris explains why his firm is advertised on the ass end of every bus in town. What a moron.

    Between stupid lawyers and stupid doctors, it's no wonder Las Vegas has become a laughing stock.

    P.S. Has Noel Gage signed up any of these cases?


    Richard wrote on March 06, 2008 10:36 PM: This stupid comment is from the article:

    "This is the same industry that rebounded from Hurricane Katrina and the World Trade Center attacks," Harris said. "Insurance companies rule the world. They've got it figured out to where they can take your money and not give it back."

    I resent these ignorant comments by the lawyers. As a person who lost his employment because the insurance company I worked for went into bankruptcy as a result of the Trade Center loss, it galls me to see people who know nothing about the insurance industry make these kind of statements which is then believed by the public. The Nevada doctors apparently have their malpractive coverage with a risk retention group, probably financed by the medical profession because the normal insurance companies pulled out of Nevada. This has nothing to do with Katrina or other disasters in the world. If the industry was making so much money on malpractice in Nevada, why aren't they lining up to come into the state?


    Robert wrote on March 06, 2008 09:58 PM: Here is the interesting fact: "Eglet said he had received around 2,000 calls from consumers by Tuesday afternoon and had signed up "well over" 400 clients." So the question becomes, when there is a limited pie of money to be divided, which of your 400 clients are you going to help to get money and which of your 400 clients are you going to tell to take a hike? Will you advocate for some of your clients to get money to the exclusion of other clients? When it isnt certifed as a class (which it wont be because each patient has different facts), will you be able to look those patients in the eye who you prevented from getting a legitimate recovery because you signed up everybody in one big pot?

    At least look them in the eye as you are driving home to your million-dollar mansion. Justice is not about signing up the many but about meteing out the limited resources to those who will be in greatest need.


    THE REAL STORY wrote on March 06, 2008 09:06 PM: Clearly the Docs made poor choices - and have and will pay for these mistakes.

    The REAL STORY --- INSURANCE COMPANY CONTRACTS EXCLUSIVELY WITH SUB STANDARD HEALTH CARE- FORCING PATIENTS TO GET HEALTH CARE AT THIS CENTER.

    If the greedy lawyers are looking for deep pockets, I think they should look at the GREEDY INSURANCE COMPANIES.

    After all- we can see the common thread between the Insurance companies and the lawyers - both are extremely concerned about the health and well being of the patients.....

    Come on people, wake up !!!


    Bryan wrote on March 06, 2008 07:09 PM: I feel for the victims of this negligence. But does it make it right for these ambulance chasing lawyers to go after all this money? Remember the health care crisis Southern Nevada had a few years ago? Doctors were unable to get malpractice insurance and were leaving for better places. Unfortunately I think this will destroy the health care industry in Southern Nevada. We will all have to go to California to get any health care. There will be no more doctors in Southern Nevada. The price of health care will skyrocket even higher and the health insurers will be no more. Does two wrongs make a right?


    ginger wrote on March 06, 2008 06:55 PM: I think juctice would be to give the viruses to those doctors and any involved who allowed this to happen. That should be their punishment for their wrong doing. Give them back what they gave to others.


    p wrote on March 06, 2008 06:31 PM: My thouhts and prayers are with the patients and families.I totally condemn the clinics practices.

    Let's not do ethnic bashing as not all the doctors from india are bad. it is worth noting that the source of hepatitis contamination is from only one patient and this patient was under the care of DR. Carrol(along with Dr. desai and others) and he should have taken utmost precautions had he known that the clinic he partially owns had been participating in bad policy. So please folks, try to identify that only few doctors, nurses were involved here and we will ask the authorities to take imediate action. Please dont blame all the doctors and nurses from usa or other country.

    Most of the doctors and nurses are committed to the noble proffession and will uphold the oath


    Glen Lerner wrote on March 06, 2008 06:28 PM: 1 call thats all- 877-1500''


    chasing ambulances .. still wrote on March 06, 2008 05:59 PM: Jasper .. read my post again. You did not correctly comprehend my words. In no way did I suggest this is a frivolous case. Far from it. Instead, I would hope that those who are infected get far beyond that $350,000. However, simple math says those poor souls who were infected will be sharing that pie with those who weren't infected. The biggest payoff of all will go to the "caring" attorneys. Those truly in need will be left with very little.

    Furthermore, the attorneys aren't looking out for these people. If you think they aren't pondering their own good fortune and drooling over this case, you must be misguided. Unless of course the attorneys involved do their work pro bono or at a reduced percentage. Shall we hold our breath on that one?

    What I was speaking of, in my humble opinion, is a tendency on the part of "ambulance chasers" to go for the big bucks on frivolous cases as well as justified cases. And no, I am not an insurance representative. I am a person who has seen good doctors persecuted for frivolous lawsuits. I am a person who has had to find new doctors because the good ones left town or left the profession all together. Again, bad doctors should pay ... absolutely. But, let's be honest -- lawyers don't differentiate between the good and bad or right and wrong.

    It all about the money. I have news for you, my opinion isn't unique --- it should be abundantly clear, the "ambulance chasers" aren't held in very high regard, anywhere.

    And yes, I would sue if infected, but I wouldn't use an attorney who advertises on blogs.


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