00                      CS FOR HOUSE BILL NO. 472(JUD)                                                                    
01 "An Act relating to claims for personal injury or wrongful death against health care                                    
02 providers; and providing for an effective date."                                                                        
03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA:                                                                
04    * Section 1.  The uncodified law of the State of Alaska is amended by adding a new section                         
05 to read:                                                                                                                
06       LEGISLATIVE FINDINGS AND INTENT.  (a)  The legislature finds that the                                             
07 national medical malpractice crisis continues to affect the state, and patient access to                                
08 physicians will be dramatically affected if physicians cannot afford, or obtain at any price,                           
09 malpractice insurance.                                                                                                  
10       (b)  It is the intent of this Act to                                                                              
11            (1)  alleviate a medical malpractice insurance crisis that the legislature believes                          
12 will, if not corrected, threaten the quality of the state's health care; the legislature believes that                  
13 the continuing availability of adequate medical care depends directly on the availability of                            
14 adequate insurance coverage, which in turn operates as a function of costs associated with                              

01 medical malpractice litigation; the legislature believes that decreasing the limits on                                  
02 noneconomic damages will help to contain the costs of malpractice insurance by controlling                              
03 damages and will significantly help to provide for a stable malpractice insurance market for                            
04 health care providers, thereby maximizing the availability of medical services to meet the                              
05 state's health care needs;                                                                                              
06            (2)  modify the decisions of the Alaska Supreme Court in Marsingill v.                                       
07 O'Malley, 58 P.3d 495 (Alaska 2002) and Korman v. Mallin, 858 P.2d 1145 (Alaska 1993);                                  
08 and                                                                                                                     
09            (3)  clarify the law of informed consent in medical malpractice cases.                                       
10    * Sec. 2.  AS 09.55.548 is amended by adding new subsections to read:                                              
11            (c)  In an action to recover damages for personal injury or wrongful death                                   
12       based upon the provision of services by a health care provider, damage claims for                                 
13       noneconomic losses shall be limited to compensation for pain, suffering,                                          
14       inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment                              
15       of life, loss of society and companionship, loss of consortium, injury to reputation, and                         
16       other nonpecuniary damage.                                                                                        
17            (d)  Notwithstanding AS 09.17.010, the damages awarded by a court or a jury                                  
18       for claims allowed under (c) of this section, including a loss of consortium or other                             
19       derivative claim, arising out of a single injury or death may not exceed $250,000                                 
20       regardless of the number of health care providers against whom the claim is asserted                              
21       or the number of separate claims or causes of action brought with respect to the injury                           
22       or death.                                                                                                         
23            (e)  The jury may not be informed about the limitation on damage claims for                                  
24       noneconomic losses in (c) of this section, but an award for noneconomic losses in                                 
25       excess of $250,000 shall be reduced before the entry of judgment.                                                 
26            (f)  Multiple injuries sustained by one person as a result of a single incident                              
27       shall be treated as a single injury.                                                                              
28            (g)  The limit on damages in (d) of this section and the reduction of an award                               
29       for noneconomic losses in (e) of this section do not apply if the plaintiff proves by                             
30       clear and convincing evidence that the health care provider's conduct                                             
31                 (1)  was outrageous, including acts done with malice or bad motives; or                                 

01                 (2)  evidenced reckless indifference to the interest of another person.                                 
02    * Sec. 3.  AS 09.55.556 is amended to read:                                                                        
03            Sec. 09.55.556.  Informed consent.  (a)  A health care provider is liable for                              
04       failure to obtain the informed consent of a patient if the claimant establishes by a                              
05       preponderance of the evidence that the provider has failed to inform the patient of the                           
06       common risks and reasonable alternatives to the proposed treatment, [OR] procedure,                         
07       or course of action, and that, but for that failure, the claimant would not have                      
08       consented to the proposed treatment, [OR] procedure, or course of action.                                 
09            (b)  It is a defense to any action for medical malpractice based upon an alleged                             
10       failure to obtain informed consent that                                                                           
11                 (1)  the risk not disclosed is too commonly known or is too remote to                                   
12       require disclosure;                                                                                               
13                 (2)  the patient stated to the health care provider that the patient would                              
14       or would not undergo the treatment, [OR] procedure, or course of action regardless                    
15       of the risk involved or that the patient did not want to be informed of the matters to                            
16       which the patient would be entitled to be informed;                                                               
17                 (3)  under the circumstances, consent by or on behalf of the patient was                            
18       not possible; or                                                                                                  
19                 (4)  the health care provider, after considering all of the attendant facts                         
20       and circumstances, used reasonable discretion as to the manner and extent that the                            
21       alternatives or risks were disclosed to the patient because the health care provider                              
22       reasonably believed that a full disclosure would have a substantially adverse effect on                           
23       the patient's condition.                                                                                          
24    * Sec. 4.  AS 09.55.556 is amended by adding new subsections to read:                                              
25            (c)  A health care provider, when informing a patient of the common risks and                                
26       reasonable alternatives to a proposed treatment, procedure, or course of action, shall                            
27       disclose a known risk of death or serious bodily harm and explain the common                                      
28       complications that may occur.  A health care provider is required only to disclose that                           
29       information that a skilled health care provider of the same or reasonably similar                                 
30       specialty would disclose under similar circumstances.                                                             
31            (d)  A health care provider is not liable for advice given to a patient by                                   

01       telephone, radio, electronic mail, telemedicine, or other electronic communication if                             
02       the advice is that the patient seek further care or evaluation at the health care                                 
03       provider's office, a clinic, an emergency room, or a hospital, and the patient elects not                         
04       to follow that advice.                                                                                            
05    * Sec. 5.  The uncodified law of the State of Alaska is amended by adding a new section to                         
06 read:                                                                                                                   
07       APPLICABILITY.  This Act applies to suits against health care providers initially                                 
08 filed on or after the effective date of this Act.                                                                       
09    * Sec. 6.  This Act takes effect July 1, 2004.