Legislature(2013 - 2014)CAPITOL 106
02/27/2014 03:00 PM House HEALTH & SOCIAL SERVICES
| Audio | Topic |
|---|---|
| Start | |
| HB281 | |
| HB250 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 250 | TELECONFERENCED | |
| += | HB 281 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 250-MEDICAL MALPRACTICE ACTIONS
3:17:05 PM
CHAIR HIGGINS announced that the next order of business would be
HOUSE BILL NO. 250, "An Act making an expression of apology,
responsibility, liability, sympathy, commiseration, compassion,
or benevolence by a health care provider inadmissible in a
medical malpractice case; requiring a health care provider to
advise a patient or the patient's legal representative to seek
legal advice before making an agreement with the patient to
correct an unanticipated outcome of medical treatment or care;
and amending Rules 402, 407, 408, 409, and 801, Alaska Rules of
Evidence."
3:17:17 PM
REPRESENTATIVE KELLER moved to adopt the proposed committee
substitute (CS) for HB 250, labeled 28-LS0967\O, Wallace,
2/10/14, as the working draft. [There being no objection, it
was so ordered.]
ERIKA O'SULLIVAN, Staff, Representative Kurt Olson, Alaska State
Legislature, explaining the intent of proposed HB 250,
paraphrased from the sponsor statement:
An Act making an expression of apology,
responsibility, sympathy, commiseration, compassion,
or benevolence by a health care provider inadmissible
in a medical malpractice case; requiring a health care
provider to advise a patient or the patient's legal
representative to seek legal advice before making an
agreement with the patient to correct an unanticipated
outcome of medical treatment or care; and amending
Rules 402, 407, 408, 409, and 801, Alaska Rules of
Evidence."
HB 250, also known as the "benevolent gesture" or "I'm
Sorry" bill, would render expressions of
responsibility, apology or sympathy by a health care
provider to a patient related to an unanticipated
outcome of treatment inadmissible as evidence in a
medical malpractice case.
MS. O'SULLIVAN pointed to a document assembled by the American
Medical Association depicting a state by state breakdown of
similar legislation [Included in members' packets]. She
continued paraphrasing from the sponsor statement:
The bill is intended to clear up the gray area which
now exists between apologies and admissions of
neglect. The goal of HB 250 is to improve doctor-
patient relationships, especially in cases ending with
a less-than-favorable outcome. It is not negligence,
but rather a failure in communication between the
provider and patient, that most often results in
malpractice lawsuits.
HB 250 aims to improve the climate of communication,
disclosure and analysis. Similar legislation has
already passed in over 30 states. This legislation
will enable health care providers to better fulfill
their moral and ethical responsibilities to patients
and their families through expressions of compassion
and sympathy without fear of retribution in the form
of a lawsuit.
3:20:22 PM
CHAIR HIGGINS opened public testimony.
DOUG WOJCIESZAK, Sorry Works!, stated his support for the
proposed bill. He reported that his organization, Sorry Works!,
worked with health care and insurance organizations, as well as
attorneys on both sides, for better communication from health
care professionals "after something goes wrong in a hospital."
He declared that communication helped avoid lawsuits. He stated
that similar legislation to the proposed bill had passed in 38
states, and that medical professionals were now more comfortable
with the ability to have "empathetic and honest conversations
with patients and families." He pointed out that the proposed
bill would bring attention to the issue, and would encourage
hospitals and insurance companies to develop "full blown
disclosure programs" to support these conversations. He stated
his support for the language in the proposed bill which alerted
and encouraged families to the rights for the involvement of
legal counsel, and was especially important for the credibility
of the disclosure efforts. He emphasized that open disclosure
resulted in fewer lawsuits, fewer complaints, and increased
patient safety.
CHAIR HIGGINS asked about his profession.
MR. WOJCIESZAK replied that his oldest brother had died as the
result of medical errors, and that the resulting cover up and
denial had been a "teaching experience." He shared that he was
a former political PR [public relations] guy from the Illinois
House of Representatives. He said that he now worked
professionally with hospitals and insurance companies to teach
their staff "how to say sorry when something goes wrong."
CHAIR HIGGINS asked about the requirement in the proposed bill
for a health care provider to advise a patient to seek legal
advice before making any arrangement. He asked about the
recourse if this did not happen.
MR. WOJCIESZAK, in response, offered his belief that "the
inadmissibility would probably go out the window." From a
practical standpoint, it was a benefit to tell a family to bring
in legal counsel for discussion. He stated that plaintiff
lawyers, as well as defense lawyers, were supportive and
cooperative, and that this language made it a "fair and balanced
bill."
CHAIR HIGGINS expressed his hesitation for the language, and he
opined that "all of a sudden, things get a little bit sideways"
when an attorney became involved. He offered that a patient
always had the right to go to a lawyer. In dentistry, it was
possible to fix about 90 percent of things that went wrong,
without a need for an attorney. He expressed his hesitation for
the proposed language.
MR. WOJCIESZAK suggested including language in the proposed bill
for a financial threshold.
3:28:34 PM
REPRESENTATIVE KELLER expressed his appreciation for the scope
of the proposed bill, as it included apology, responsibility,
and benevolence. He offered his belief that benevolence by
conduct allowed for a financial gift without an admission of
guilt.
MR. WOJCIESZAK offered an example of a health professional
discounting the patient's bill or offering a gift card, without
any admission of guilt.
MS. O'SULLIVAN referenced AS 09.55.544, explaining that this was
a consumer protection, as an agreement between a patient and a
health care provider which was determined to be unacceptable,
could be voided.
CHAIR HIGGINS questioned the reasoning for the necessity of
legal advice before trying to reach a settlement.
MS. O'SULLIVAN replied that the proposed bill simply advised
seeking legal counsel to reach a fair agreement or to add
credence to an agreement.
MS. O'SULLIVAN directed attention to the changes in the proposed
bill between the original version and Version O. On page 1,
line 1 of the bill title, the word "liability" was deleted,
again under section 1(a) on page 1, line 12 "liability" was
deleted, and finally, under Section 2(1), page 3, line 6, it was
again deleted. She shared that the sponsor believed that the
word "liability" undermined the intent of the bill, as an
expression of liability was closer to an admission of fault or
negligence, and should not be excluded in a civil case. She
pointed out that Section 1(a), page 2, line 14, [paragraph] (5)
was added to close a potential loophole should an indirect offer
to compromise, write-off, or furnish payment occur.
MS. O'SULLIVAN, in response to Representative Seaton, repeated
that this aforementioned section was added to the current
proposed committee substitute (CS).
MS. O'SULLIVAN reported that Section 1(b), page 2, line 18, was
also added, as the sponsor believed it was necessary for
clarification if a statement was prefaced by or made in
conjunction with an apology which admitted liability, fault or
negligence, it would not necessarily be deemed inadmissible.
She addressed Section 4, page 4, line 4, and stated that the
conditional effect was amended to include AS 09.55.545. She
said that the original proposed version only required AS
09.55.544 to have a two-thirds majority to take effect.
REPRESENTATIVE SEATON, pointing to page 3, line 3 of the
proposed bill, asked if a medical procedure could proceed to
correct any mistakes. He expressed his concern for the sequence
of a medical procedure if a correctable mistake occurred.
MS. O'SULLIVAN offered her belief that the intent was for this
to only be applied after the completion of a procedure.
REPRESENTATIVE SEATON asked for an interpretation by Legislative
Legal Services.
3:37:46 PM
MEGAN WALLACE, Attorney, Legislative Legal Counsel, Legislative
Legal Services, Legislative Affairs Agency, offered her belief
that AS 09.55.545 would not require that a procedure stop to
obtain consent or agreement. She relayed that the provision
only stated that an agreement between the provider and the
patient was voided if the provider did not at first tell the
patient they had the right to seek legal counsel. She opined
that there would be limited situations for a procedure to stop,
as long as a patient was advised to the opportunity for
consultation before any agreement with the provider.
REPRESENTATIVE SEATON asked for clarification whether an
unanticipated outcome to a medical treatment would not be
interpreted such that a problem with the surgery would require
stoppage.
MS. WALLACE, in response, said that the provision did not
require that a medical procedure stop prior to the patient being
advised to seek legal counsel. It only related if an agreement
between the patient and provider was for the patient to seek
legal representation. She explained that the statute allowed
for the original agreement to be voided should a patient later
decide to seek legal counsel. She stated that it did not
require any medical procedure to be stopped until a patient was
advised to seek legal counsel.
CHAIR HIGGINS asked for clarification whether this was a verbal
or written consent.
MS. WALLACE replied that this provision would apply to both.
3:43:32 PM
REPRESENTATIVE TARR asked if the provision benefited the patient
more than the provider, or did it equally protect both.
MS. WALLACE replied that this would be a question for the bill
sponsor. She opined that it provided assurances to both the
provider and the patient, as it advised the patient of legal
rights before a legal agreement in order to preclude "subsequent
legal remedies."
REPRESENTATIVE TARR asked to compare this proposed legislation
to that in other states. Directing attention to page 1, line
12, which read: "an expression of apology, responsibility,
sympathy, commiseration, compassion, or benevolence," she opined
that this proposed bill was different with its use of
"responsibility." She questioned the impact for the legislation
as this could take "it a step too far."
MS. WALLACE explained that the relationship to the intent and
the scope of inclusion was a question for the bill sponsor. She
said that the legal impact for the use of "responsibility" could
provide some ambiguity when a provider expressed responsibility,
as there was "a grey area in terms of if a provider says that
they're responsible for something whether that's an admission of
liability, fault, or negligence, or just an expression of
benevolence." She offered that this could be interpreted on a
case by case determination and that retaining the language would
leave the interpretation to a court.
MS. O'SULLIVAN opined that the use of "responsibility" was a
policy call, as some states included this in the definition of
what was inadmissible. The sponsor had determined "that an
expression of responsibility didn't necessarily mean an
admission of negligence or culpability" or an acceptance of
legal fault.
3:48:28 PM
NELS ANDERSON, M.D., said that he had written the draft of the
proposed bill and he declared that discussion with a patient was
necessary and would take away the threat of liability. He
pointed out that 70 percent of the cost in liability cases went
to the court system and not to the patient. He stated that his
intent for the proposed bill was "to allow a collegial
settlement of unanticipated outcomes" when the patient, the
hospital, and the physician could work for resolution without
"wasting the money in the legal system." He explained the
necessity for making the patient aware of what happened and feel
comfortable. He pointed out the difference with this proposed
bill to others nationwide as it expressed the ability to come to
a legal settlement. He directed attention to page 2, line 18,
which had been added, and "destroys the intent of the bill." He
offered his belief that anytime a physician makes an
explanation, an attorney would consider that an admission of
fault, negligence, or liability. With this subsection (b), a
lawyer had the patient records, testimony, and an admission of
liability from the physician, if the matter went to court. He
expressed extreme concern for the wording in this subsection,
although he opined that it was introduced to protect the
patient's rights. He expressed agreement with the decision to
advise a patient of the right to seek legal counsel, and it
would allow settlement for "minor" unanticipated outcomes. He
stated that physicians wanted to take care of their problems
however, they did not want to spend time in court resolving
problems which could have been solved otherwise.
3:53:27 PM
DR. ANDERSON, in response to Chair Higgins, referred to page 2,
line 18, [subsection (b)], and specified that line 22 stated
that an admission of liability, fault, or negligence could be
admitted as evidence. He offered his belief that an explanation
of what happened when something went wrong was more like a
collegial settlement, and not dictated by the legal system.
CHAIR HIGGINS asked about the agreement to correct an
unanticipated outcome, and the need to ask for legal advice. He
suggested inclusion of a capacity for settlement without the
request for legal advice.
DR. ANDERSON stated that the intent of the proposed draft was
for protection of the patient's rights. He declared that he did
not want a hospital or a physician swarming down on a patient
during a problem occurrence, especially as the patient did not
have the ability to determine whether the settlement offer was
reasonable. He expressed his agreement that the patient would
often decline legal representation. He stated that the setting
of a specific number for settlement was a possibility, as long
as the patient rights were protected.
REPRESENTATIVE TARR asked if his proposed draft of the bill had
evolved from a personal experience.
DR. ANDERSON offered his background, which included currently
serving as the Mayor of Soldotna, as well as serving on the
school board. He shared that he had been taught to be involved
in the community. He noted that he had read the aforementioned
book by Doug Wojcieszak, Sorry Works! He said that he had
received no help or advice from any other community members,
although he had seen over time that physician response to a
problem could be resolved when there was discussion and amicable
remediation. In response to Chair Higgins, he said that he was
a family physician.
3:59:25 PM
ROSS TANNER, MD, Past President, Alaska State Medical
Association, discussed some of his background as a physician,
noting that the majority of complaints to the board, other than
gross negligence reports, were from disgruntled patients who had
frustrating relationships with physicians. He opined that a
similar bill had been previously introduced and had been
reviewed and supported by the Alaska State Medical Association.
He expressed his agreement with Dr. Anderson that medical
malpractice companies preferred no communication with a patient,
whereas the proposed bill would help relationships with the
patient and the family members. He stated that the Alaska State
Medical Association would support the proposed bill.
CHAIR HIGGINS asked about [subsection](b) on page 2, line 18,
which he read:
If an expression of apology, responsibility, sympathy,
commiseration, compassion, or benevolence made under
(A)(1) of this section is made in conjunction with an
admission of liability, fault, or negligence, only the
expression of apology, responsibility, sympathy,
commiseration, compassion, or benevolence is
inadmissible, and the admission of liability, fault,
or negligence may be admissible as evidence.
DR. TANNER offered his interpretation that this deconstructed
the purpose of the proposed bill.
REPRESENTATIVE KELLER asked whether it would be improved if the
subsection required a written admission of liability, fault, or
negligence, or would it be better to remove subsection (b).
DR. TANNER replied that most prudent physicians would prefer to
have communication, as was the intent of the proposed bill. He
opined that physicians would be apprehensive for anything that
necessitated signing, and therefore the proposed bill would
become useless.
CHAIR HIGGINS proffered his agreement.
4:06:10 PM
REPRESENTATIVE SEATON surmised, if an admission of liability or
negligence was not admissible in court, then a physician could
say whatever they wanted. He opined that it was a balancing act
for a physician to share sympathy and an explanation, but should
not escape fault merely by telling the patient, as it would then
be inadmissible. He pointed out that the proposed bill stated
that it "may be admissible" and not that it "is admissible."
DR. TANNER reflected that, as things speak for themselves, if
you make a mistake, it is obvious. He opined that the intent of
the original proposed bill could improve communication between
doctors and patients, especially during any bad outcome, as long
as the wording did not create concern for the doctors.
REPRESENTATIVE KELLER asked if an explanation by a doctor for
what happened could be construed as an admission of fault or
negligence.
MS. WALLACE offered her belief that it would be fact specific,
and would be dependent upon the circumstances and the exact
statement which was offered, whether it was factual background
or any actual admission of liability, fault, or negligence. She
added that statements of admission of liability by a health care
provider, under existing law, may already be admissible as
evidence as exceptions to the hearsay rule. She said that, to
the extent that the proposed bill precluded the expression of an
apology or sympathy, it did not change the law that related to
admissions of liability, fault, or negligence.
REPRESENTATIVE KELLER asked for clarification that subsection
(b) was not necessary.
MS. WALLACE offered her belief that subsection (b) helped
clarify a circumstance for a statement by a health care provider
that admitted liability, and without the subsection, it could
leave the decision in the court's hands for whether to exclude
the expression of apology or the admission of liability. She
pointed out, as "may" was used in the subsection, the rules of
evidence would still need to be applied.
4:13:39 PM
CHAIR HIGGINS asked if the intent of the proposed bill would be
changed if subsection (b) were excluded.
MS. WALLACE said that exclusion of subsection (b) would run the
risk, should an admission of liability be prefaced by an
apology, that admission of liability may be inadmissible. Under
existing law, dependent on the specific circumstance, those
admissions of liability could be admitted against the provider.
Without subsection (b), there was the risk that the court would
determine that the admission of liability was part of the
expression of apology, responsibility, or benevolence.
CHAIR HIGGINS referred to the testimony by both doctors which
stated that retaining the subsection would render the bill
"useless."
MS. WALLACE replied that this was a policy decision for
interpretation and discussion by the sponsor.
REPRESENTATIVE TARR noted her comfort with the proposed
language, given the distinction. She returned attention to page
1, line 12, and asked for the legal difference with admission of
responsibility and liability. She opined that the two were
similar.
MS. WALLACE said that she could not find a statutory reference
to a definition of "responsibility," and she referenced the
Black's Law Dictionary definition of "responsibility" as
liability. She opined that responsibility could be expressed as
acceptance of, and may not contain intent for admission of legal
responsibility. She did not know how a court would interpret
the difference.
4:17:31 PM
MEG SIMONIAN, Attorney, stated that she was a medical
malpractice attorney, and she expressed her agreement with the
sponsor statement that an expression of apology, sympathy,
compassion, or benevolence should have the ability to keep this
out of litigation. She pointed out that most doctors wanted
that introduced as evidence, as it allowed a show of sensitivity
toward the patient. She expressed agreement with the intent of
the proposed bill that it should not be used against a doctor,
and she agreed that many situations should never go to court.
She noted that attorney involvement would not necessarily result
in a better outcome for the patient, as the caps for damages did
not justify litigation costs. She stated that any aid for
resolution was a good thing, noting that she received more than
800 calls each year by patients frustrated with doctors and the
lack of communication, even though there was no legal claim.
She offered her belief that the problem with the proposed bill
was the use of "responsibility" on page 1, line 12, as it had an
entirely different legal connotation than the rest of the words.
She agreed that it could have the connotation as described by
Legislative Legal Services; however, the more common legal
connotation was that of an admission of responsibility for what
had happened. She declared that an apology after a procedure
whereby the doctor had done everything correctly was different
than an expression of apology after a doctor had done something
wrong. She pointed out that any admission was admissible
through the rules of evidence in court. The proposed bill would
say that it was not admissible, creating a conflict between an
admission "under evidence rule 801(d), and this new
prohibition." She said, as there were not any similar
prohibitions in statute, the statutory prohibition would take
precedence. She stated that a doctor's admission of wrongdoing
was different than an expression of apology, sympathy,
commiseration, compassion or benevolence. She suggested that
the wording could be changed to include benevolence in offers of
help, so as not to be confused with the legal connotations of
"responsibility." She directed attention to page 2, line 18,
subsection (b), and offered her belief that it did not legally
change a doctor's ability to apologize. She opined that it was
a duty of a doctor to accurately explain what was done during a
procedure. She noted that not ensuring this accuracy, and
allowing it in court, would allow a doctor to testify to
something totally different. She offered her belief that this
did not take away from the ability of the doctor to express
apology.
4:25:50 PM
REPRESENTATIVE TARR asked about a change of language from
"responsibility" to "offers for help" that would better clarify
that it was not a responsibility related to the medical
procedure, but that it was an offer to help or support as a
result of the outcome.
MS. SIMONIAN expressed her agreement that this distinction would
clarify between the legal connotation for "responsibility" and
wanting to help the situation.
4:27:17 PM
The committee took an at-ease from 4:27 p.m. to 4:30 p.m.
4:30:03 PM
REPRESENTATIVE KURT OLSON, Alaska State Legislature, declared
that he had "anguished over this verbiage for several years" in
order "to strike a balance." He pointed out that the proposed
bill would still go to the House Judiciary Standing Committee,
which could review the language with its resources.
REPRESENTATIVE SEATON stated that the Committee Substitute (CS),
Version O, had been adopted as a balance, which precluded the
use for statements of actual liability. He expressed his desire
that the expressions of sentiment would allow for an early
settlement. He expressed the need to maintain a medical and a
legal balance.
CHAIR HIGGINS opined that the intent of the proposed bill was to
"grab that balance where doctors can talk freely to the
patient." He expressed his concern with [subsection] (b) as it
removed the original intent of the bill, which was to allow
compassion and conversation with the patient.
REPRESENTATIVE KELLER described a medical scenario that could
result in legal action, requiring a determination by the court
for the admissibility of the conversation. He suggested that
the sponsor research this further.
4:35:12 PM
REPRESENTATIVE TARR suggested a change in language for the
aforementioned discussion of "responsibility," page 1, line 12.
REPRESENTATIVE SEATON reflected that, as most conversations
would not revolve around an actual medical malpractice by the
doctor, there would not be the admissions of fault or
negligence. He pointed out that most instances were not for
medical negligence, consequently those conversations could move
forward without any admission of liability, fault, or
negligence. He expressed concern, however, for any instance of
negligence, fault, or liability that was not admissible.
REPRESENTATIVE OLSON shared that the driving force for this
proposed bill was an attempt to address closure for patients,
and was intended to allow conversation with medical
professionals and eliminate any thoughts of cover up.
4:39:38 PM
MS. O'SULLIVAN offered anecdotal evidence that showed a downward
trend in medical malpractice lawsuits, which could be attributed
to the changes in laws similar to proposed HB 250 by 35 states,
which fostered a better climate for communication between
doctors and patients.
CHAIR HIGGINS expressed his agreement, although he wanted
clarification so the proposed bill would accomplish its goal.
He asked for input from the Alaska Medical Association, the
Alaska Dental Society, and the Alaska Nurses Association.
REPRESENTATIVE OLSON suggested including the Alaska State
Hospital and Nursing Home Association, as well. He declared his
desire to have the proposed bill "done right."
4:42:05 PM
CHAIR HIGGINS held over HB 250, and he kept public testimony
open.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB250 Supporting Documents - Here & Now Radio Interview.pdf |
HHSS 2/27/2014 3:00:00 PM |
HB 250 |
| HB250 Supporting Documents - AMA Apology Inadmissibility Laws.pdf |
HHSS 2/27/2014 3:00:00 PM |
HB 250 |
| HB250 Summary of Changes.pdf |
HHSS 2/27/2014 3:00:00 PM |
HB 250 |
| HB250 Sponsor Statement.pdf |
HHSS 2/27/2014 3:00:00 PM |
HB 250 |
| HB250 Sectional Analysis.pdf |
HHSS 2/27/2014 3:00:00 PM |
HB 250 |
| HB250 Draft Proposed CS Ver O.pdf |
HHSS 2/27/2014 3:00:00 PM |
HB 250 |
| HB250 Supporting Documents - Journal of Health & Life Sciences.pdf |
HHSS 2/27/2014 3:00:00 PM |
HB 250 |
| HB250 Ver A.pdf |
HHSS 2/27/2014 3:00:00 PM |
HB 250 |
| HB250Fiscal Note-DOC-OC-02-24-14.pdf |
HHSS 2/27/2014 3:00:00 PM |
HB 250 |
| HB250 Supporting Documents - ASMA Letter.pdf |
HHSS 2/27/2014 3:00:00 PM |
HB 250 |
| HB250 Supporting Documents - AMA support for AK HB 250.pdf |
HHSS 2/27/2014 3:00:00 PM |
HB 250 |