Legislature(2003 - 2004)
03/19/2004 01:15 PM House JUD
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* first hearing in first committee of referral
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HB 472 - CLAIMS AGAINST HEALTH CARE PROVIDERS Number 2272 CHAIR McGUIRE announced that the next order of business would be HOUSE BILL NO. 472, "An Act relating to claims for personal injury or wrongful death against health care providers; and providing for an effective date." CHAIR McGUIRE reminded the committee that Amendment 2, labeled 23-LS1743\A.3, Bullock, 3/10/04, was left pending at the March 16, 2004, hearing. Amendment 2 read: Page 2, line 22, following "death.": Insert "The limits on damages in this subsection do not apply if the personal injury or wrongful death was the result of gross negligence or reckless or intentional misconduct." Page 2, line 25, following "judgment": Insert "unless the personal injury or wrongful death was the result of gross negligence or reckless or intentional misconduct" REPRESENTATIVE ANDERSON, sponsor of HB 472, said he maintains his objection. Number 2216 A roll call vote was taken. Representatives Gara and Gruenberg voted in favor of the adoption of Amendment 2. Representatives Samuels, Anderson, and McGuire voted against it. Therefore, Amendment 2 failed by a vote of 2-3. CHAIR McGUIRE turned attention to Amendment 3, labeled 23- LS1743\A.4, Bullock, 3/10/04, which read: Page 3, lines 19 - 30: Delete all material. Renumber the following bill sections accordingly. Number 2155 REPRESENTATIVE GARA moved that the committee adopt an amendment to Amendment 3, which changed it to read as follows: Page 3, lines 20 - 25: Delete all material. Renumber the following bill sections accordingly. CHAIR McGUIRE announced that the amendment to Amendment 3 was adopted. [Therefore, Amendment 3, as amended, was before the committee.] REPRESENTATIVE GARA recalled that some of the informed consent language is necessary to address the O'Malley case regarding telephonic advice given to patients. Those amendments to the informed consent statute are contained in Section 3 and Section 4, subsection (d), of HB 472. Representative Gara specified that he only objects to Section 4, subsection (c), and highlighted that there have been no objections to the current law. The [current law] specifies that the advice that should be given to a patient is that which would be given in a like circumstance regarding the risks and treatment options, which, he posited, is the reasonable patient standard. However, Section 4, subsection (c), changes that to the reasonable physician standard such that it would be the type of advice the physician in that community would normally provide. Representative Gara opined that the information should be given such that the average patient can understand treatment options and risks. Section 4, subsection (c), seems to be overkill, he remarked. REPRESENTATIVE ANDERSON objected to Amendment 3, as amended. He said he prefers the reasonable health care provider standard. Part of the reason for the legislation is [to provide] predictability, whether in litigation or in insuring. CHAIR McGUIRE recalled that there are states that use the reasonable physician in the community standard. REPRESENTATIVE GRUENBERG turned to the first sentence in Section 4, subsection (c), and asked Representative Gara if that sentence could be retained. REPRESENTATIVE GARA said he had no problem with retaining the first sentence in Section 4, subsection (c), although he relayed his belief that the first sentence merely repeats what the current statute already says. Number 1987 REPRESENTATIVE ANDERSON specified that the first sentence of Section 4, subsection (c) is written in conjunction with the second sentence. He posed an example of an individual with a cut finger asking the physician whether he or she should go to the emergency room. If only the first sentence of Section 4, subsection (c), was kept, the physician would have to instruct the patient that in the worst case, the finger could get gangrene and would have to be cut off if the individual didn't go to the emergency room. The physician would have to specify that he or she couldn't provide the answer over the telephone. The second sentence is an imperative connection because it states that typically the healthcare community would inform the patient that although treatment seems necessary, the physician would say that he or she doesn't foresee other problems. REPRESENTATIVE GRUENBERG posed a situation in which Amendment 3, as amended, is adopted and asked if the first sentence would continue to make sense. REPRESENTATIVE ANDERSON said that he defers to the opinion of the health care providers who feel that this language [in Section 4, subsection (c)] would help. CHAIR McGUIRE opined that as to Representative Gruenberg's question of whether the first sentence makes any difference, it doesn't. REPRESENTATIVE GARA disagreed, saying there is a problem with the first sentence of Section 4, subsection (c). He explained that currently physicians are required to inform a patient of all risks he/she believes the patient would want to know about. However, the first sentence of Section 4, subsection (c), specifies that physicians only have to inform patients of risks that would cause serious bodily harm, which is drastically narrower. Representative Gara said he believes that a physician should inform a patient of the risks of moderate bodily harm as well as minor bodily harm. He specified that he didn't like the fact that the physician now only has to discuss risks of death and serious bodily harm. REPRESENTATIVE ANDERSON interjected that [Amendment 3, as amended] provides too much latitude and "opens up where lawsuit happy people can say, 'Wow, you didn't go to minor levels, or middle levels, or small levels,' and I think that's ridiculous and that's the whole point of the bill." He highlighted that the state is losing insurance companies because there is too much latitude for a patient to say that he or she wasn't completely informed. The aforementioned places an unfair onus on the physician, he concluded. REPRESENTATIVE GARA pointed out that such a level of onus isn't in the current statute. Number 1819 CHAIR McGUIRE recalled the O'Malley case from which arose a broad, philosophical debate regarding the amount of information a physician should be liable for giving to someone. She recalled that the discussion was that this is an area ripe for lawsuits. Chair McGuire turned to AS 09.55.556, which she characterized as fairly broad. She highlighted AS 09.55.556(a), which read: (a) A health care provider is liable for failure to obtain the informed consent of a patient if the claimant establishes by a preponderance of the evidence that the provider has failed to inform the patient of the common risks and reasonable alternatives to the proposed treatment or procedure, and that but for that failure the claimant would not have consented to the proposed treatment or procedure. CHAIR McGUIRE explained that [Section 4, subsection (c)] narrows it, and emphasized that it refers to the "most common serious complications that may occur". She said she believes the aforementioned to be reasonable, and emphasized that this legislation attempts to reign in the exposure that physicians have, "that if something happens that is out of the ordinary, that was not disclosed, that ... [the physician is] not going to be liable for it." She offered her understanding that case law already recognizes the following: health care providers have a statutory duty to posses the knowledge and skill of [an] ordinary provider unless they're a specialist, in which case, they have the duty to possess knowledge and skill of an ordinary specialist. She then turned to the second sentence of Section 4, subsection (c), and pointed out that the language "a skilled health care provider of the same or reasonably similar specialty" refers to both the expert and the generalist. The second sentence also refers to "under similar circumstances", which would be the community standard. Chair McGuire reiterated that this is being narrowed and made to be easily understood by physicians and medical malpractice providers so that there isn't a range of exposure. CHAIR McGUIRE pointed out that Section 4, subsection (d), resulted from the O'Malley case. As a result of the [O'Malley case], physicians are essentially being told that no matter the possibility, the patient should go to the emergency room. If the aforementioned happens, she remarked, it will cost Alaskans a lot of money. REPRESENTATIVE GRUENBERG asked if the definition of health care provider would include pharmacists and health aides in villages. Number 1559 CHAIR McGUIRE turned attention to the definition section under AS 09.55.560, which read: (1) "health care provider" means an acupuncturist licensed under AS 08.06; an audiologist or speech- language pathologist licensed under AS 08.11; a chiropractor licensed under AS 08.20; a dental hygienist licensed under AS 08.32; a dentist licensed under AS 08.36; a nurse licensed under AS 08.68; a dispensing optician licensed under AS 08.71; a naturopath licensed under AS 08.45; an optometrist licensed under AS 08.72; a pharmacist licensed under AS 08.80; a physical therapist or occupational therapist licensed under AS 08.84; a physician or physician assistant licensed under AS 08.64; a podiatrist; a psychologist and a psychological associate licensed under AS 08.86; a hospital as defined in AS 18.20.130, including a governmentally owned or operated hospital; an employee of a health care provider acting within the course and scope of employment; an ambulatory surgical facility and other organizations whose primary purpose is the delivery of health care, including a health maintenance organization, individual practice association, integrated delivery system, preferred provider organization or arrangement, and a physical hospital organization; REPRESENTATIVE GRUENBERG opined that the standards set in one profession will eventually leech over to other professions. He explained that he wanted to be fair to both the injured person and those in the profession. He noted that although he generally is very supportive of the plaintiff's bar, he expressed concern with eliminating this provision. Number 1460 ALLISON MENDEL, Attorney at Law, Alaska Academy of Trial Lawyers (AATL), testified that as an attorney and a consumer of health care, she is having difficulty understanding why it's important to meet the health care providers' expectations about [this]. This is about injured persons, and therefore one has to assume that there is an injured person to begin with. Ms. Mendel asked, "What difference does it make what information the doctor (indisc.) to be giving?" She highlighted that nothing in current law or this legislation specifies that the patient has to be informed of every possible, remote consequence of the treatment. The current law specifies that the patient has to be given enough information so that a reasonable patient can make a decision. "If the reasonable patient doesn't get enough information to make a decision, how could they be deciding," she asked. Ms. Mendel indicated her belief that the lawsuits that allegedly have been won by patients as a result of the physician providing obscure and "useless" information don't exist. CHAIR McGUIRE stated that one of the things that physicians look at when determining a place to practice is the legal climate. Trying to envision what every single patient would consider to be reasonable or unreasonable [information] is outrageous, she remarked. MS. MENDEL interjected, "That's ... not the reasonable person standard; ... it's an objective reasonable person, not every individual patient." CHAIR McGUIRE opined that physicians become as trained as possible with regard to the most common side effects, risks, et cetera, and so [informing the patient of] the aforementioned is reasonable. CHAIR McGUIRE reminded the committee that before it is the question of whether to adopt Amendment 3, as amended. [Text provided previously.] A roll call vote was taken. Representatives Gara and Gruenberg voted in favor of the adoption of Amendment 3, as amended. Representatives Samuels, Anderson, and McGuire voted against it. Therefore, Amendment 3, as amended, failed by a vote of 2-3. Number 1257 REPRESENTATIVE GARA moved that the committee adopt Amendment 4, a handwritten amendment, which read [original punctuation provided]: Delete at p 3 line 22 "serious bodily" and "most" Delete at line 23, "serious" and insert at line 22 the word "risks" after "common" REPRESENTATIVE ANDERSON objected. REPRESENTATIVE GARA opined that a physician has the duty to inform a patient of common risks, not just the most common risks. He said he believes that Amendment 4 doesn't request physicians to do anything other than what they already do. Furthermore, physicians [should] always inform the patient of possible risks of harm. He offered his belief that the physician's duty shouldn't be limited to risks of serious bodily harm. If the harm is common, then the patient should be informed. The lynchpin is the word "common". REPRESENTATIVE GRUENBERG pointed out that the language being inserted on page 3, line 22, after "common" should be "risks and" rather than "risks". He offered the above as an amendment to Amendment 4. There being no objection, Amendment 4 was amended as specified. REPRESENTATIVE SAMUELS asked whether there is a definition of "serious bodily harm". He opined that changing the language to refer to merely "harm" results in two lawyers arguing the case. Representative Samuels suggested bifurcating the motion to [adopt] Amendment 4, [as amended], because he is concerned with the deletion of "serious bodily". REPRESENTATIVE GARA clarified that [Amendment 4, as amended] wouldn't require the physician to disclose all possible harms because the term "common" limits it. Therefore, the physicians have to advise the patients of a small world of common risks and harms. Representative Gara said that "serious bodily harm" isn't defined anywhere [in statute]. At some point, the matter goes before a jury and a physician is required to live up to the standard. REPRESENTATIVE SAMUELS pointed out that with the adoption of Amendment 4, as amended, the language on page 3, lines 21-22, will, in part, read "shall disclose a known risk of death or harm". There's always a risk of harm, he remarked. REPRESENTATIVE GARA said that there could be a compromise by leaving in the language "serious" and deleting "bodily" such that the language would read "shall disclose a known risk of death or serious harm". CHAIR McGUIRE expressed concern that there are many serious harms and it seems that referring to the body is important if it's something that a physician is doing to a patient's body. She noted that she agrees with eliminating the language "most" from page 3, line 22. Number 0967 REPRESENTATIVE GARA agreed to leave in the language "serious bodily" on page 3, line 22. Therefore, he moved to further amend Amendment 4, as amended, such that it would read as follows: Delete at p 3 line 22 "most" Delete at line 23, "serious" and insert at line 22 the words "and risks" after "common" CHAIR McGUIRE asked whether there were any objections to the second amendment to Amendment 4, as amended. There being none, the second amendment to Amendment 4, as amended, was adopted. REPRESENTATIVE GRUENBERG requested that Amendment 4, as amended, be divided. [No objection was heard, and so Amendment 4, as amended, was treated as divided.] Number 0913 REPRESENTATIVE GARA moved that the committee adopt Amendment 4A, which read: Delete at p 3 line 22 "most" CHAIR McGUIRE asked whether there were any objections to Amendment 4A. There being none, Amendment 4A was adopted. Number 0891 REPRESENTATIVE GARA moved that the committee adopt Amendment 4B, which read: Delete at line 23, "serious" and insert at line 22 the words "and risks" after "common" REPRESENTATIVE ANDERSON objected. He indicated that he could accept the deletion of "serious" from page 3, line 23, although he was uncomfortable with the term "risks". Number 0778 REPRESENTATIVE GARA moved that the committee adopt an amended Amendment 4B, as follows: Delete at [page 3], line 23, "serious" CHAIR McGUIRE, after determining that there were no objections to such, announced that Amendment 4B [as amended] was adopted. Number 0741 REPRESENTATIVE GRUENBERG moved that the committee adopt [handwritten] Amendment 5A and Amendment 5B, two handwritten amendments on one page, which read: (A) page 3 line 22 after "and" insert "clearly" (B) page 3 line 26 after "advice" insert "clearly" REPRESENTATIVE GRUENBERG explained that Amendment 5A would mean that [the physician] would "clearly explain". He specified that he was referring to an oral explanation. REPRESENTATIVE ANDERSON objected, and said the assumption is that it is clear when a physician [informs] a patient. He opined that the legislation is good as written, since the word "clearly" could be inserted in almost every provision of proposed legislation. CHAIR McGUIRE opined that such would be part of the fact-finding mission of the jury. If it's alleged that [the physician] didn't disclose [possible risks and complications], part of the [patient's argument] would be [the patient] saying that he or she didn't understand the physician, or that the information was presented in a lengthy document, or that the patient didn't understand because he or she spoke Spanish. Chair McGuire offered her belief that [adding the proposed language] is unnecessary. REPRESENTATIVE GRUENBERG asked whether, if the above-mentioned factual circumstances were presented, the jury should be able to make an award to the plaintiff. REPRESENTATIVE ANDERSON said he didn't believe that someone would make the argument that the physician wasn't obligated to be clear because the statute doesn't include the "clearly" language. Although he agreed that this is a valid point, he said he didn't believe such language should be included in the statute. Number 0500 REPRESENTATIVE GRUENBERG clarified that he didn't want someone to be able to say that an average physician or professional would have understood the information, because the patient is the one who must have understood the information. He expressed hope that the intent of the legislation is that a reasonable person in the plaintiff's position should have been able to understand the information. The aforementioned should be the standard, he opined. REPRESENTATIVE ANDERSON disagreed and opined that [the language] is unnecessary. He offered his belief that it's already the case that physicians are already clear when giving instructions. REPRESENTATIVE GRUENBERG asked if the intent of the legislation is that the explanation should be understandable to a reasonable person in the plaintiff's situation at the time the advice was given. He opined that the aforementioned should be the standard. REPRESENTATIVE ANDERSON again opined that the proposed additional language is unnecessary. REPRESENTATIVE GRUENBERG clarified that he's trying to determine what the standard should be, and whether the language referring to that standard is clear. REPRESENTATIVE ANDERSON said that the standard being used is what a health care provider would determine as reasonable. The health care provider standard, he opined is clear without the additional language. REPRESENTATIVE GRUENBERG offered his understanding that Representative Anderson is saying that the standard should be what a health care provider would understand. Number 0222 REPRESENTATIVE ANDERSON pointed out that the legislation specifies that the health care provider "shall disclose a known risk of death or serious bodily harm and explain the common complications that may occur." Furthermore, the explanation would occur under the standard of another health care provider of that industry. The aforementioned is sufficient, he again opined. CHAIR McGUIRE pointed out that other parts of the law factor into this. The problem with a yes answer to Representative Gruenberg's question, she opined, is that there could be the unintended consequence of adopting Representative Gara's amendment, which would shift [the law] to the reasonable patient standard. REPRESENTATIVE SAMUELS remarked that [the committee] would want the patient to understand the risks. However, he agreed with Representative Anderson's wanting to avoid a situation in which someone would be sued because the person charged that the information wasn't clearly relayed. REPRESENTATIVE GRUENBERG said he wanted it to be known that the intent [tape changes midspeech]. TAPE 04-42, SIDE A Number 0001 REPRESENTATIVE GRUENBERG continued, "... is to be reasonably understandable." REPRESENTATIVE GARA said he agrees that the committee wants to ensure that the information the physician provides is reasonably understandable and, therefore, perhaps the language doesn't need to be changed. However, he surmised that Representative Gruenberg is being cautious because of the concern of a contrary ruling from a court, since "clearly" was already implied in existing law. The existing law specifies that "we want the information to be given so that a reasonable patient could understand it." However, that language has been [removed], and therefore there is the implication that "we" don't care whether a reasonable patient would understand it. REPRESENTATIVE GARA noted that Representative Gruenberg proposes leaving in the aspect of ensuring that it's clear to a patient. Although he said he understood that to be the intent, he didn't believe it would be harmful to make it clearer in the statute. Representative Gara recalled that he and Representative Samuels go back and forth on the matter of whether to deny someone a right so that no one can file a frivolous claim or whether to give someone a right so that both people with valid claims and with invalid claims can pursue their rights. Representative Gara opined that it's bad policy to deny people rights on the possibility that someone might file a frivolous claim. Therefore, he announced his support of [Amendments 5A and 5B]. Number 0153 REPRESENTATIVE GRUENBERG withdrew Amendments 5A and 5B. CHAIR McGUIRE explained that the standard is being changed to a health care provider standard so that a health care provider can be assured with regard to what he or she is expected to inform. The [information] isn't just from what the physicians learned in medical school, but also includes "what a skilled health care provider would know" language. She highlighted that the "informing" language contains some insight because it means that the intent is for the patient to be informed, not just be handed or given the information, about common complications. REPRESENTATIVE GRUENBERG noted that he concurs with Chair McGuire's comments. He asked if the sponsor has the same understanding as [Chair McGuire]. REPRESENTATIVE ANDERSON replied yes. Number 0297 REPRESENTATIVE GARA moved that the committee adopt Amendment 6, labeled 23-LS1743\A.5, Bullock, 3/16/04, which read: Page 2, following line 27: Insert a new subsection to read: "(g) The limitation on damages under (d) of this section shall be adjusted by the administrative director of the Alaska Court System on October 1 of each year, calculated to the nearest whole percentage point between the index for January of that year and January of the prior year according to the Consumer Price Index for all urban consumers for the Anchorage metropolitan area compiled by the Bureau of Labor Statistics, United States Department of Labor. The administrative director of the Alaska Court System shall provide notification of a change in the limitation of damages to the clerks of court in each judicial district of the state. The court shall adjust the award for noneconomic damages under this subsection and (e) of this section, if necessary, before the entry of judgment." REPRESENTATIVE GARA said that the damage limits for this legislation seem to be acceptable. However, he didn't want what happened in California to happen in Alaska. He informed the committee that in 1975, [California decided that] the amount someone should recover for noneconomic damages should be $250,000, which hasn't changed in 30 years. Therefore, if California's $250,000 limit were inflation adjusted, it might sum upwards of $600,000 to $700,000 today. Every year people are given less and less damages. Representative Gara opined that the committee should do what is essentially going to be done during the common course of litigation. He explained that both sides will hire an economist, who will perform future inflationary projections. He suggested that the damage limit should be adjusted upwards for inflation so that the legislature wouldn't have to revisit this legislation each year. By lagging behind inflation, California's law specifies that the worth of someone's ability to walk, to hold his or her child, et cetera is worth $13.69 a day in today's dollars. Representative Gara said that California should've inflation-proofed [noneconomic damages], and therefore that's what he wanted to do with HB 472. REPRESENTATIVE ANDERSON stated that he didn't like the "$13.69 a day" as a matter of interpretation. Although he said he understands the argument, he didn't support the amendment increasing the cap because it would defeat the purpose for sponsoring the legislation. He opined that [Amendment 6] seems to lend itself to Representative Gara's first amendment expanding the caps and, thus, he disagrees with [Amendment 6]. Number 0559 A roll call vote was taken. Representatives Gara and Gruenberg voted in favor of the adoption of Amendment 6. Representatives Samuels, Anderson, and McGuire voted against it. Therefore, Amendment 6 failed by a vote of 2-3. The committee took an at-ease from 3:00 p.m. to 3:40 p.m. Present at the call back to order were Representatives McGuire, Anderson, Samuels, and Gruenberg. Number 0653 REPRESENTATIVE ANDERSON moved that the committee rescind its committee's action, on 3/16/04, in the adopting Amendment 1, labeled 23-LS1743\A.1, Bullock, 3/10/04, which read: Page 2, line 19, following "$250,000": Insert ", except that, in the case of severe permanent physical impairment or severe disfigurement, the damages may not exceed $1,000,000. The limit on damages applies" Page 2, line 25: Delete "$250,000" Insert "the maximum amount allowed under (d) of this section" REPRESENTATIVE GRUENBERG predicted that he would be the only one opposing this motion. He posited that HB 472 won't be moved today and will be available at the first opportunity [when] all seven members of the committee will be present, with no one being excused from the vote. He requested the ability to be able to re-offer Amendment 1[A.1]. He asked if the sponsor is agreeable to that. REPRESENTATIVE ANDERSON said that he couldn't guarantee all seven members would be present at that time. Number 0788 A roll call vote was taken. Representatives Samuels, Anderson, McGuire voted in favor of the motion to rescind the committee's action, on 3/16/04, in adopting Amendment 1[A.1]. Representatives Gruenberg voted against it. Therefore, the motion to rescind the committee's action in adopting Amendment 1[A.1] passed by a vote of 3-1. CHAIR McGUIRE announced that HB 472 would be held over.
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