Legislature(2005 - 2006)

02/28/2006 04:05 PM HES


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HB 442-HEALTH CARE DECISIONS                                                                                                  
                                                                                                                                
4:04:12 PM                                                                                                                    
                                                                                                                                
CHAIR WILSON announced that the  first order of business would be                                                               
HOUSE BILL NO.  442, "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."                                                                                               
                                                                                                                                
4:04:18 PM                                                                                                                    
                                                                                                                                
JACQUELINE  TUPOU,  Staff   to  Representative  Bruce  Weyhrauch,                                                               
Alaska State Legislature, presented HB  442, Version G, on behalf                                                               
of  Representative   Weyhrauch, Sponsor,  and stipulated  that no                                                               
changes were made subsequent to the committee's previous review.                                                                
                                                                                                                                
REPRESENTATIVE SEATON moved to  adopt Amendment 1, 24-LS1618\G.1,                                                               
Bannister, 2/24/06, which read [original punctuation provided]:                                                                 
                                                                                                                                
     Page 3, lines 24 - 26:                                                                                                     
          Delete "or if the physician reasonably believes                                                                   
     that the patient does not have a qualifying condition"                                                                 
                                                                                                                                
     Page 4, line 25, following "chapter;":                                                                                     
          Insert "or"                                                                                                       
                                                                                                                                
     Page 4, lines 27 - 31:                                                                                                     
          Delete "or                                                                                                        
               (D) because the health care provider or                                                                      
     institution has a good faith  belief that the condition                                                                
     requiring   cardiopulmonary   resuscitation  or   other                                                                
     resuscitative  measures   is  not  precipitated   by  a                                                                
     qualifying condition;"                                                                                                 
                                                                                                                                
4:05:57 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON explained that on  page 3, lines 24-26, and                                                               
page 4, lines  27-31, Version G allows a physician  to override a                                                               
do not  resuscitate (DNR) order,  which "is against what  we were                                                               
doing  in the  adoption of  the five  wishes bill,  ... and  so I                                                               
offer Amendment  1."  He  continued, stating that  the provisions                                                               
in the amendment allow a physician  to disregard a DNR order when                                                               
a  procedure  is being  performed  that  is  not related  to  the                                                               
qualifying condition  of the DNR order  and resuscitation becomes                                                               
necessary.   To  further comply  with the  five wishes  bill, the                                                               
amendment  deletes  the  clause   which  allows  a  physician  to                                                               
disregard  a DNR  directive when  they believe  that the  patient                                                               
does not have a qualifying condition.                                                                                           
                                                                                                                                
4:08:57 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE CISSNA  described her experience of  doctors being                                                               
loathe to allow  people to die unless  everything is specifically                                                               
spelled out and the DNR order is at hand.                                                                                       
                                                                                                                                
4:09:33 PM                                                                                                                    
                                                                                                                                
CHAIR WILSON withdrew  her objection, and there  being no further                                                               
objection, Amendment l was adopted.                                                                                             
                                                                                                                                
4:09:45 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE   GARDNER  referred   to   the  document   labeled                                                               
Amendment   24-LS1618\G.2,   Bannister   2/28/06,   [subsequently                                                               
adopted  as   Amendment  2]  which  read   [original  punctuation                                                               
provided]:                                                                                                                      
                                                                                                                                
     Page 1, line 4:                                                                                                            
          Delete    "of    health   care    providers    and                                                                  
     institutions"                                                                                                            
          Insert "and discipline of health care providers,                                                                    
     institutions, and facilities"                                                                                            
                                                                                                                                
     Page 2, line 25, through page 3, line 10:                                                                                  
          Delete all material.                                                                                                  
                                                                                                                                
     Renumber the following bill sections accordingly.                                                                          
                                                                                                                                
     Page 4, line 25, following "chapter;":                                                                                     
          Insert "or"                                                                                                       
                                                                                                                                
     Page 4, lines 27 - 31:                                                                                                     
          Delete "or                                                                                                        
               (D)  because the health care provider or                                                                     
     institution has a good faith  belief that the condition                                                                
     requiring   cardiopulmonary   resuscitation  or   other                                                                
     resuscitative  measures   is  not  precipitated   by  a                                                                
     qualifying condition;"                                                                                                 
                                                                                                                                
     Page 5, lines 3 - 12:                                                                                                      
          Delete all material and insert:                                                                                       
        "* Sec. 7.  AS 13.52.080 is amended by  adding a new                                                                
     subsection to read:                                                                                                        
          (c)  A health care provider, health care                                                                              
     institution, or health care facility  is not subject to                                                                    
     civil  or  criminal  liability, or  to  discipline  for                                                                    
     unprofessional conduct,  if a do not  resuscitate order                                                                    
     prevents   the  health   care  provider,   health  care                                                                    
     institution,  or health  care facility  from attempting                                                                    
     to resuscitate  a patient who  requires cardiopulmonary                                                                    
     resuscitation or  other resuscitative  measures because                                                                    
     of  complications  arising  out of  health  care  being                                                                    
     administered  to   the  patient  by  the   health  care                                                                    
     provider,  health  care  institution,  or  health  care                                                                    
     facility.  This  subsection  does   not  apply  if  the                                                                    
     complications  suffered by  the patient  are caused  by                                                                    
     reckless  or intentional  actions  on the  part of  the                                                                    
     health  care  provider,  health  care  institution,  or                                                                    
     health care facility."                                                                                                     
                                                                                                                                
     Renumber the following bill sections accordingly.                                                                          
                                                                                                                                
     Page 6, line 4:                                                                                                            
          Delete "sec. 7"                                                                                                       
          Insert "sec. 5"                                                                                                       
                                                                                                                                
4:10:33 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GARDNER explained that  this amendment is designed                                                               
to ensure that,  when a conflict arises between the  needs of the                                                               
care provider and  the needs of the patient holding  a DNR order,                                                               
that  "the needs  of  the  care provider  could  never trump  the                                                               
confirmed   DNR   desires  of   the   individual   even  if   the                                                               
circumstances weren't dealing with  the fatal illness."  Further,                                                               
she explained  that the amendment inserts  the terms "discipline"                                                               
and  "facilities"  in  title  of  the  bill.    The  addition  of                                                               
"discipline", she  said, "Is to  avoid a care provider  having an                                                               
internal punishment for not resuscitating  someone who held a DNR                                                               
order."  Because the contents  of this amendment overlap with the                                                               
previously adopted  Amendment G.1,  she noted that  two deletions                                                               
would need to be made.   She instructed the committee to make the                                                               
following  change  to  the   document  [subsequently  adopted  as                                                               
Amendment  2], by  deleting the  language on  page 1,  lines 5-6,                                                               
which read:                                                                                                                     
                                                                                                                                
     Page 2, line 25, through page 3, line 10:                                                                                  
          Delete all material.                                                                                                  
                                                                                                                                
4:14:40 PM                                                                                                                    
                                                                                                                                
JOHN  DAWSON,   Partner,  Davis   Wright  and   Tremaine  Limited                                                               
Liability    Partnership   (LLP);    Representative,   Providence                                                               
Anchorage   Anesthesia  Medical   Group,   explained  that   this                                                               
amendment eliminates  the provisions  which would allow  a doctor                                                               
to correct a  physician error or disregard a DNR  order, when the                                                               
need for resuscitation  is the result of a  procedure not related                                                               
to  the qualifying  condition.   Although this  effectively "ties                                                               
the  doctor's  hands"  the amendment  provides  the  doctor  with                                                               
liability immunity for honoring a DNR order at all costs.                                                                       
                                                                                                                                
4:15:47 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON pointed out  that Mr. Dawson was addressing                                                               
the amendment, page  1 beginning with line 20, but  not the lines                                                               
of the bill  itself, page 4, lines 26-27, which  he understood to                                                               
be the area that Representative Gardner was referencing.                                                                        
                                                                                                                                
REPRESENTATIVE GARDNER  concurred and  directed the  committee to                                                               
disregard her pervious  request and to delete  from the amendment                                                               
[subsequently adopted as  Amendment 2], page 1,  lines 4-19, thus                                                               
this ensures  that a care  provider who  follows a DNR  order, is                                                               
not subject to a law suit.                                                                                                      
                                                                                                                                
CHAIR  WILSON   clarified  and  confirmed  the   changes  to  the                                                               
amendment.                                                                                                                      
                                                                                                                                
4:17:19 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GARDNER moved to adopt Amendment 2, 24-                                                                          
LS1618\G.2, Bannister 2/28/06.                                                                                                  
                                                                                                                                
4:19:05 PM                                                                                                                    
                                                                                                                                
CHAIR WILSON clarified that Amendment 2 would now read as                                                                       
follows:                                                                                                                        
                                                                                                                                
     Page 1, line 4:                                                                                                            
          Delete    "of    health   care    providers    and                                                                  
     institutions"                                                                                                            
          Insert "and discipline of health care providers,                                                                    
     institutions, and facilities"                                                                                            
                                                                                                                                
     Page 5, lines 3 - 12:                                                                                                      
          Delete all material and insert:                                                                                       
        "* Sec. 7.  AS 13.52.080 is amended by  adding a new                                                                
     subsection to read:                                                                                                        
          (c)  A health care provider, health care                                                                              
     institution, or health care facility  is not subject to                                                                    
     civil  or  criminal  liability, or  to  discipline  for                                                                    
     unprofessional conduct,  if a do not  resuscitate order                                                                    
     prevents   the  health   care  provider,   health  care                                                                    
     institution,  or health  care facility  from attempting                                                                    
     to resuscitate  a patient who  requires cardiopulmonary                                                                    
     resuscitation or  other resuscitative  measures because                                                                    
     of  complications  arising  out of  health  care  being                                                                    
     administered  to   the  patient  by  the   health  care                                                                    
     provider,  health  care  institution,  or  health  care                                                                    
     facility.  This  subsection  does   not  apply  if  the                                                                    
     complications  suffered by  the patient  are caused  by                                                                    
     reckless  or intentional  actions  on the  part of  the                                                                    
     health  care  provider,  health  care  institution,  or                                                                    
     health care facility."                                                                                                     
                                                                                                                                
     Renumber the following bill sections accordingly.                                                                          
                                                                                                                                
     Page 6, line 4:                                                                                                            
          Delete "sec. 7"                                                                                                       
          Insert "sec. 5"                                                                                                       
                                                                                                                                
4:20:37 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON asked whether Amendment 2 affects [page 4]                                                                
line 26, which refers to a woman of childbearing age.                                                                           
                                                                                                                                
REPRESENTATIVE  GARDNER clarified  that  this amendment  provides                                                               
liability immunity  to a physician  who honors a DNR  order, save                                                               
for  reckless  or  intentional  actions which  do  not  uphold  a                                                               
professional standard of care.                                                                                                  
                                                                                                                                
4:21:12 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SEATON pointed  out that  Amendment 1  dealt with                                                               
[page 4] lines 28-31 including  the preceding "or" [line 27], and                                                               
not line [26] which refers to  a woman of child bearing age, thus                                                               
it remains within the bill.   He stated that his understanding of                                                               
the  intent  of  Amendment  2,  is to  protect  the  health  care                                                               
provider/institution  from  liability.   He  asked  whether  this                                                               
language would allow a physician  to demonstrate gross negligence                                                               
and not be held responsible for their actions.                                                                                  
                                                                                                                                
4:22:17 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GARDNER   asked  for  the  legal   difference  of                                                               
negligent and reckless.                                                                                                         
                                                                                                                                
MS.  TUPOU stated  that  negligence means  "of  neglecting to  do                                                               
things" and  that's what  you are  allowing in  this legislation;                                                               
for the physician  to not act and not correct  an error, which is                                                               
what precipitated the inclusion of  the language "intention to be                                                               
reckless" and "intentional action".                                                                                             
                                                                                                                                
REPRESENTATIVE GARDNER  stated that it is  her understanding that                                                               
under  the  usual  standard  of  care a  doctor  could  be  found                                                               
negligent;  however, in  the  case of  a DNR  order  a doctor  is                                                               
acting in  an intentionally negligent  manner.  By  following the                                                               
patients DNR order, the doctor  should not be held responsible or                                                               
legally liable.                                                                                                                 
                                                                                                                                
REPRESENTATIVE  SEATON provided  that  it would  be an  egregious                                                               
oversight  if this  bill provided  language which  would allow  a                                                               
doctor the  latitude to  err, for example  "operate on  the wrong                                                               
leg," and be absolved of the responsibility.                                                                                    
                                                                                                                                
4:23:54 PM                                                                                                                    
                                                                                                                                
JOHN DAWSON  said that the focus  of the bill is  to hold doctors                                                               
free  of liability  where complications  result from  negligence.                                                               
The  bill  does  not  distinguish between  negligence  and  gross                                                               
negligence  because  the distinction  between  the  two terms  is                                                               
difficult  even  for  the  courts to  determine.    However,  the                                                               
distinction between negligence and  recklessness is clear-cut and                                                               
a liability release for recklessness  is excluded from this bill.                                                               
A  surgeon is  negligent, if  he overlooks  something or  makes a                                                               
mistake, but if he knows that  what he is engaging in will result                                                               
in  a  particular  complication,  such conduct  could  be  termed                                                               
reckless.    Disregarding  a  known   risk  is  what  constitutes                                                               
recklessness  and  the  courts  are  able  to  clearly  delineate                                                               
between these  two terms.   He conceded that  he is not  sure how                                                               
the  "wrong leg"  scenario would  be considered  given these  two                                                               
terms, but  he opined  that it would  be considered  to represent                                                               
more than negligence.                                                                                                           
                                                                                                                                
4:25:22 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON maintained his  concern for "the wrong leg"                                                               
scenario and  suggested that gross negligence  should be included                                                               
in  the language  of this  bill.   He stressed  that a  liability                                                               
release  for   an  act  constituting  gross   negligence  is  not                                                               
allowable under any circumstances.                                                                                              
                                                                                                                                
REPRESENTATIVE GARDNER  agreed, and stated that  if complications                                                               
arise from negligence,  the doctor should be held  liable, but if                                                               
death occurs due to negligence for  the purpose of honoring a DNR                                                               
order, the doctor should be protected.                                                                                          
                                                                                                                                
4:27:05 PM                                                                                                                    
                                                                                                                                
MS. TUPOU stated:                                                                                                               
                                                                                                                                
     It gets  to what is the  intent of the amendment.   ...                                                                    
     at what  point do  you want the  doctor to  rectify his                                                                    
     ...  mistake.   That's why  we're trying  to deal  with                                                                    
     this in the liability section.                                                                                             
                                                                                                                                
MS. TUPOU pointed out that if  negligence is the action which the                                                               
committee wishes a  doctor to take then the  original language of                                                               
the bill  should be maintained,  and she reiterated  the original                                                               
bill  language  regarding  secondary and  qualifying  conditions.                                                               
She  stressed that  these  two amendments  disallow  a doctor  to                                                               
correct a  procedural error  when a  DNR order  is in  place, and                                                               
said:                                                                                                                           
                                                                                                                                
     If you  want doctors  to carry that  [DNR order]  out I                                                                    
     think  you  need  to  be  clear  ...  about  what  [the                                                                    
     doctors]  ...  liability  is, here  in  this  liability                                                                    
     section, because  if not, you're  not going to  get the                                                                    
     patient's wishes  honored, and ... [doctors]  are going                                                                    
          to correct their mistakes for that secondary                                                                          
     condition, which is what the bill initially did."                                                                          
                                                                                                                                
4:28:08 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  CISSNA provided  a  hypothetical  situation of  a                                                               
person  who  holds a  DNR  order  and  who manages  to  extricate                                                               
theirself from a  life support intensive care  unit (ICU) system,                                                               
only to be  resuscitated and have the life support  replaced by a                                                               
health  care provider.   She  asked how  an intervention  of this                                                               
type would be handled.                                                                                                          
                                                                                                                                
MS. TUPOU responded  that if a patient required  life support for                                                               
their primary  qualifying condition,  that would be  specified in                                                               
their DNR  order, and this  legislation only  addresses secondary                                                               
conditions.  She requested clarity  regarding the language of the                                                               
amendments,  and where  the  committee would  like  to place  the                                                               
responsibility for liability as discussed.                                                                                      
                                                                                                                                
REPRESENTATIVE SEATON provided that  the intent of this amendment                                                               
is  to  hold  a  doctor  liable for  reckless  behavior,  and  he                                                               
stressed that  it should also include  language stipulating gross                                                               
negligence.    He  suggested  that  the  sponsor  will  have  the                                                               
opportunity to incorporate  the intent of the  amendment into the                                                               
bill, prior to its review in a subsequent committee.                                                                            
                                                                                                                                
4:31:29 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SEATON  moved  Amendment  1  to  Amendment  2  as                                                               
follows:                                                                                                                        
                                                                                                                                
     Page 2, line 7, between the words "by" and "reckless"                                                                      
          Insert "gross negligence,"                                                                                            
                                                                                                                                
There  being  no  objection,  Amendment  1  to  Amendment  2  was                                                               
adopted.                                                                                                                        
                                                                                                                                
There being  no further objection,  Amendment 2, as  amended, was                                                               
adopted.                                                                                                                        
                                                                                                                                
4:32:12 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SEATON  moved  to  report  HB  442,  Version  24-                                                               
LS1618\G,   as  amended,   out  of   committee  with   individual                                                               
recommendations and  the accompanying fiscal notes.   There being                                                               
no  objection,  CSHB  442(HES)  was reported  out  of  the  House                                                               
Health, Education and Social Services Standing Committee.                                                                       
                                                                                                                                

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