Legislature(2005 - 2006)CAPITOL 106
02/23/2006 03:00 PM HEALTH, EDUCATION & SOCIAL SERVICES
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|Overview(s) || Alaska Mental Health Board: Advisory Board on Alcoholism and Drug Abuse (abada)|
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 442-HEALTH CARE DECISIONS CHAIR WILSON announced that the first order of business would be HOUSE BILL NO. 442, Version 24-LS1618\G, "An Act relating to the validity of advance health care directives, individual health care instructions, and do not resuscitate orders; relating to the revocation of advance health care directives; relating to do not resuscitate orders; relating to resuscitative measures; relating to the liability of health care providers and institutions; relating to an individual's capacity for making health care decisions; and providing for an effective date." 3:57:29 PM JACQUELINE TUPOU, staff to Representative Bruce Weyhrauch, Alaska State Legislature, presented HB 442, on behalf of Representative Weyhrauch, paraphrasing from a written statement, which read as follows [original punctuation provided]: Passage of the Health Care Decisions Act ("Alaska Act") in 2004, was an important step forward in modernizing and improving Alaska's health care laws for the terminally ill, their families, and loved ones. House Bill 442 makes minor changes to the Alaska Act in order to provide clearer direction to those implementing health care decisions. Current law imposes a duty of investigation upon doctors when carrying out the health care directives of their patients. House Bill 442 amends the current statute to conform the language in the Alaska Act to Uniform Act language, thus requiring a doctor to act in "good faith" when time is often critical for their patients. The bill also substitutes the word "physician" for "attending physician", to clarify the intent that all physicians treating a patient adhere to the patient's advanced health care directives. Finally, House Bill 442 clarifies when CPR may be used, addresses the validity of orders from other jurisdictions, and indicates under what circumstances a Do Not Resuscitate order may be revoked. The Health Care Decisions Act has been beneficial and important for all Alaskans in letting terminally ill patients have their wishes heard. House Bill 442 helps caregivers carry out those wishes. 3:59:55 PM REPRESENTATIVE GARDNER asked whether this bill provides for a distinction between a physician and an attending physician, and the need for each to act in good faith regarding their patient's health care instructions. 4:00:37 PM JAMES BROOKS, Administrator, Anchorage Anesthesia Group, Providence Alaska Medical Center, pointed out that it is not unusual for a patient to have several physicians. Nor is it uncommon, he explained for a patient to arrive in the operating room (OR) and request that the anesthesiologist waive the existing do not resuscitate (DNR) order to ensure that they survive the anesthesia and surgical processes. If a patient makes this type of request, it would be important to respect that choice without delaying the patient's care while locating the attending physician. He stressed the importance for every physician involved in a patient's care to be authorized to adhere to a patient's DNR orders without constraint. In response to Representative Gardner, he said that the attending physician is the primary physician on a patient's chart. 4:02:53 PM MICHAEL NORMAN, Doctor of Anesthesiology, Alaska Physicians and Surgeons, clarified that "admitting physician" is the correct term, and the term "primary physician" is no longer used in modern practice. 4:03:25 PM REPRESENTATIVE ANDERSON, referenced page 3, lines 16-27, and asked whether the language "the patient requests", refers to an oral or a written request, and should it refer to an oral directive, how would that directive be verified. DR. NORMAN responded that it relates to an oral request, notated in the patient's chart by whomever it is provided to, and signed by the patient. CHAIR WILSON drawing from her nursing experience said that a request of this nature may be stated by a patient to an attendant and witnessed by any available second party. 4:06:17 PM REPRESENTATIVE ANDERSON directed the witness' attention to page 4, lines 26-31, and asked Dr. Norman to explain the addition of sub-paragraphs (C) and (D). DR. NORMAN addressed sub-paragraph (D), stating that this language is to provide clarity in a situation where someone is arriving in surgery for a reason unrelated to the condition for which they have initiated a DNR order, and he provided an example. Further, he said that sub-paragraph (C) addresses the situation of a child being affected by whatever happens to the mother. MS. TUPOU added that sub-paragraph (C) provides clarity for secondary conditions which are not related to the original DNR order qualifying condition. CHAIR WILSON hypothesized, "Like maybe they broke their arm and it has to be set under anesthesia, ...." 4:09:09 PM REPRESENTATIVE SEATON requested further clarity regarding how the DNR order qualifying condition effects a secondary condition that may arise. DR. NORMAN stated that at issue is a doctor's ability to treat whatever condition arises during a procedure, and to resuscitate the patient appropriately. Currently, it is not clear who can revoke a DNR order. If a patient requests that a DNR order be revoked, the doctor would like to be able to correct anything that is not related to the qualifying illness, such as an anesthetic, or an error made with a scalpel. These are errors which a doctor can rectify and then continue with the intended procedure. 4:11:12 PM REPRESENTATIVE SEATON asked how the language on page 3, lines 25 and 26, relates to the revocation of a DNR order. DR. NORMAN defined a qualifying condition as an untreatable or incurable disease, and provided examples. 4:12:18 PM REPRESENTATIVE ANDERSON noted that there is a statutory definition of what constitutes a qualifying condition. TERRI BANNISTER, Attorney, Legislative Legal and Research Services, Legislative Affairs Agency, read the statutory definition of a qualifying condition which refers to a "terminal condition" or a "permanent unconsciousness" in a patient, and stated that statute also defines a "terminal condition", as well as "permanent unconsciousness". MS. TUPOU cited AS 13.52.160 for further details and clarity, and deferred to John Dawson, who worked with the physicians in drafting the bill. 4:13:56 PM JOHN DAWSON, Attorney, Davis Wright and Tremaine Limited Liability Partnership (LLP); Representative, Providence Anchorage Anesthesia Medical Group, stated that he was significantly involved in the preparation of the analysis and also the drafting of the amendment. 4:14:27 PM REPRESENTATIVE SEATON referred to page 4, lines 28-31, and asked whether a person undergoing a procedure unrelated to the DNR order qualifying condition, who looses vital signs during surgery, could have the DNR order disregarded by the physician and thus be inappropriately resuscitated. MR. DAWSON confirmed Representative Seaton's understanding of the language. He highlighted, however, that the language does not require the physician to resuscitate, but rather that the physician will not be held liable if he elects to resuscitate under such circumstances. 4:16:28 PM REPRESENTATIVE SEATON asked whether the language on page 3, [lines 25 and 26] also allows the physician to make a unilateral determination and disregard the DNR order. MR. DAWSON stated: If he [a physician] believes reasonably that the patient does not have a qualifying condition, which is defined in the statute, then that physician could rescind the DNR order. ... As opposed to ... performing cardio pulmonary resuscitation (CPR) in the face of an order. 4:17:48 PM REPRESENTATIVE SEATON asked that the qualifying conditions be read once again. 4:18:01 PM MS. BANNISTER read from statute [AS 13.52.390(42)]: A "qualifying condition" means a "terminal condition" or "permanent unconsciousness". (42) "terminal condition" means an incurable or irreversible illness or injury (A) that without administration of life- sustaining procedures will result in death in a short period of time; (B) for which there is no reasonable prospect of cure or recovery; (C) that imposes severe pain or otherwise imposes an inhumane burden on the patient; and (D) for which, in light of the patient's medical condition, initiating or continuing life-sustaining procedures will provide only minimal medical benefit. MS. BANNISTER responding to further inquiry, stated that someone who is aged, exhausted from life, and ready to pass, would not qualify under statute to hold a DNR order. 4:20:10 PM REPRESENTATIVE CISSNA referred to page 2, lines 7-17, and stated that this section appears to be contradictory. CHAIR WILSON pointed out that this section represents current statute, and pertains to patients "in the case of mental illness" where a guardian or other third party is involved, and needing to make decisions for the principal [patient]. MS. TUPOU confirmed that this section sets forth a decision making process for a patient who is deemed to be incompetent. 4:23:56 PM MR. DAWSON stated that this bill does an excellent job of remedying a number of significant issues that were raised by the original statute, which, given the situations faced daily by health care professionals, effectively requires doctors to make legal decisions. 4:25:13 PM CHAIR WILSON requested further clarity regarding when a doctor can override a DNR order. MR. DAWSON provided two examples to illustrate key decision situations, which a doctor may be faced with: A patient who holds a DNR order for a terminal cancer condition, and who arrives in need of a medical procedure for an acute reaction to a bee sting, which requires resuscitative measures; and when a surgeon's own actions precipitate a problem such as an anesthesiologist administering too much medication, requiring a reversal of procedure. He opined that in either of these situations the physician should be able to take life-sustaining actions, as provided for in HB 442. 4:27:04 PM REPRESENTATIVE GARDNER requested further clarity on whether a family member, of an infirm patient, could insist that a DNR order be upheld over the physician's desire to recover from an error, thus negating the DNR order. 4:28:01 PM REPRESENTATIVE ANDERSON asked whether there is a delineation between surgical procedures which may require resuscitation, and being sustained on a life support system. MS. TUPOU said that this bill provides permissive language, which allows for appropriate medical action based on "a good faith belief". 4:29:25 PM REPRESENTATIVE SEATON expressed his concerns that this language continues to impose legal decisions on the physician. Furthermore, he stated that when a physician chooses to ignore the desire of a patient by rescinding a DNR order for any reason, it is a violation of the patient's wishes. He said, "I don't think that's where we want to be." CHAIR WILSON pointed out that a permit is signed prior to surgery which provides for certain assumptions of procedure while a patient is undergoing anesthesia. However, current law is not clear when a doctor is to be held liable and in violation of a DNR order, if they resuscitate for certain circumstances. 4:31:48 PM DR. NORMAN confirmed that two separate contexts are being addressed here namely, the OR surgical release, and the DNR order for a qualifying condition. He explained: The decision of what we are going to do in surgery is made before we enter the operating room. [As] pointed out ... where the person did not want to have anything done no matter what, that was honored. If the person says I want to have anything done that's not related to my illness, if I have ... a cardiac arrest or if I have one of these events I want you to resuscitate me. I don't believe the intent of the law is to change your plan of attack after you're already in the operating room, ... before we start we have rules of engagement established. We're trying to clarify what those rules are, ... these things are gray areas, and we're trying to change that. 4:33:05 PM REPRESENTATIVE SEATON said that if a patient has signed a surgical order which stipulates resuscitative measures are to be taken, then that would negate the implementation of a DNR order. However, this language allows a doctor to make an independent decision outside of these established qualifications. 4:33:38 PM MR. DAWSON highlighting the crux of the issue, stated: If a physician is not permitted to correct his mistake ... the fact [that] there's a DNR order in place, does not mean that the physician can't be sued for malpractice .... So you've put the physician in the untenable position of ... [not being] allowed to correct his own error, and yet he can then be sued by the family for that error. There does seem to be something unfair about that. ... When somebody goes into surgery, ... the game plan is to bring them out of surgery. ... It seems ... to be against medical practice and medical common sense to suggest that, if somebody because of something the surgeon does, is put in a position where they need CPR, that ... the physician should be helpless to ... [perform a corrective procedure]. Obviously, the patient hopes to be able to come out of this surgery ... and the physician expects to be able to do his job without being afraid of being sued. ... It's important to remember that we're only talking about patients with a qualifying condition, and ... dementia [previously mentioned] ... is not in fact a qualifying condition. ... The places where this is going to come up are going to be very few, and ... in those places we ought to err on the side of good medicine. ... That's ... what the doctor's who are hoping to see these changes come about ... are hoping that the legislature will look to: what's good medicine; what makes practical sense when we're trying to actually minister to patients. 4:35:36 PM REPRESENTATIVE GARDNER restated her concern, that if a conflict should arise for the physician, for philosophical or liability reasons, that his/her needs should not "trump the express desire of the patient and the patient's family." MR. BROOKS explained that an ethical matrix exists to ensure that a physician is chosen who is able to go into surgery and appropriately honor the patient's or the guardian's wishes. Furthermore, this occurs everyday, and upholding DNR requests is a priority in the profession, he said. REPRESENTATIVE GARDNER pointed out that what Mr. Brooks does in his own practice may not be what is upheld across the board, and therein lies the importance of passing this legislation. 4:38:31 PM CHAIR WILSON announced that HB 442 would be held in committee to allow for further testimony and amendment opportunities, prior to moving it to the Judiciary Committee.