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  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.