Legislature(2013 - 2014)CAPITOL 120

03/24/2014 01:00 PM House JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ SB 64 OMNIBUS CRIME/CORRECTIONS/RECIDIVISM BILL TELECONFERENCED
Heard & Held
+ HB 250 MEDICAL MALPRACTICE ACTIONS TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= HB 127 OMBUDSMAN TELECONFERENCED
Moved CSHB 127(JUD) Out of Committee
               HB 250-MEDICAL MALPRACTICE ACTIONS                                                                           
                                                                                                                                
CHAIR KELLER announced  that the next order of  business would be                                                               
HB 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."                                                                              
                                                                                                                                
REPRESENTATIVE GRUENBERG moved to  adopt CSHB 250(HSS) 28LS0967\P                                                               
as the  working document.   There being no objections,  Version P                                                               
was before the committee.                                                                                                       
                                                                                                                                
1:35:24 PM                                                                                                                    
                                                                                                                                
ERIKA O'SULLIVAN, Staff, Representative  Kurt Olson, Alaska State                                                               
Legislature, offered the following statement:                                                                                   
                                                                                                                                
     My named  is Erika O'Sullivan, Staff  to Representative                                                                    
     Kurt  Olson.   Before  you  today is  HB  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." Before  I get into  the presentation  of the                                                                    
     bill,  I  would  like  to  acknowledge  that  Mr.  Mike                                                                    
     Haugen,  the Executive  Director  of  the Alaska  State                                                                    
     Medical Association is online,  as is Ms. Megan Wallace                                                                    
     from  [Legislative Legal  Services], and  hopefully Mr.                                                                    
     Doug  Wojcieszak, the  author of  Sorry Works,  will be                                                                  
     attempting to call in, but he  is on the East Coast and                                                                    
     has some prior  commitments so we'll see if  we can get                                                                    
     him  online as  well.   So  they will  be available  to                                                                    
     testify   or  answer   questions.     We'll  start   by                                                                    
     addressing the intent  of the bill and then  go into an                                                                    
     explanation of changes.  House  Bill 250, also known as                                                                    
     the  "I'm  sorry"  bill, would  render  expressions  of                                                                    
     apology  or sympathy  by a  health care  provider to  a                                                                    
     patient   related  to   an  unanticipated   outcome  of                                                                    
     treatment  inadmissible as  evidence  in a  malpractice                                                                    
     case.  This  is similar to legislation  that has passed                                                                    
     in over  30 states.  As  you saw in your  bill packets,                                                                    
     there is a state-by-state  breakdown of the legislation                                                                    
     in  a  document  assembled   by  the  American  Medical                                                                    
     Association.   As addressed  in the  sponsor statement,                                                                    
     the bill  is intended to  clear up the gray  area which                                                                    
     now   exists  between   apologies  and   admissions  of                                                                    
     neglect, and  to improve  doctor/patient relationships,                                                                    
     especially  in cases  ending in  a less  than favorable                                                                    
     outcome.   Unfortunately,  health care  providers often                                                                    
     cut off  communication after adverse events,  which can                                                                    
     lead to anger  and the perception that there  is a lack                                                                    
     of  caring, or  that  a  mistake was  made  even if  in                                                                    
     reality no  error occurred.   It is not  negligence but                                                                    
     rather a failure in  communication between the provider                                                                    
     and   patient  that   often   results  in   malpractice                                                                    
     lawsuits.    This  bill  will   by  no  means  prohibit                                                                    
     malpractice lawsuits,  but to quote  Bioethicist Arthur                                                                    
     Caplan,  whose  full interview  you  saw  in your  bill                                                                    
     packets,  "You can  talk  about  your feelings  without                                                                    
     having that held against you  or being the trigger to a                                                                    
     lawsuit."   This  legislation will  enable health  care                                                                    
     providers  to better  fulfill their  moral and  ethical                                                                    
     responsibilities  to patients  and  their families  for                                                                    
     expressions of compassion and  sympathy without fear of                                                                    
     retribution in the  form of a lawsuit.  And,  I can now                                                                    
     go into an  explanation of the changes in  Version A to                                                                    
     Version P, if that is  what the committee is interested                                                                    
     in.  Okay.                                                                                                                 
                                                                                                                                
1:38:09 PM                                                                                                                    
                                                                                                                                
     So, the changes  from the original bill  version to the                                                                    
     version  you see  in front  of you,  Version P,  are as                                                                    
     follows: on page 1, line 1,  of the bill title the word                                                                    
     liability  was  deleted.   It  was  also deleted  under                                                                    
     Section  1(a) on  page 1,  line 12,  and under  Section                                                                    
     2(1)  on  page  3,  line  6.   The  sponsor  felt  that                                                                    
     including the  word liability undermined the  intent of                                                                    
     the bill  and that  an expression  of liability  was in                                                                    
     fact closer  to an  admission of negligence  and should                                                                    
     not  necessarily  be  excluded  in the  civil  case  or                                                                    
     arbitration.   Under Section 1(a)  on page 2,  line 14,                                                                    
     subsection  (5) was  added.   And, this  subsection was                                                                    
     added with  the intent of closing  a potential loophole                                                                    
     should an  indirect offer to compromise,  write off, or                                                                    
     furnish  payment occur.   Under  Section  1(a) page  2,                                                                    
     line  18,   subsection  (b)  was  added.     And,  this                                                                    
     subsection,  basically,  the   sponsor  felt  this  was                                                                    
     necessary to  clarify that if  a statement  prefaced by                                                                    
     or made in conjunction  with an admission of negligence                                                                    
     or liability be subject  to additional scrutiny and not                                                                    
     necessarily be  deemed inadmissible.   On page  3, line                                                                    
     7, of the Section 09.55.545,  the word "to" was deleted                                                                    
     and  "in writing  that the  patient or  patient's legal                                                                    
     representative may"  was added.   This addition  of "in                                                                    
     writing"  remedies a  potential proof  problem; it  was                                                                    
     something   that  was   brought  forth   by  co-sponsor                                                                    
     Representative  Gruenberg,  so  this way  everyone  has                                                                    
     their  bases covered,  everyone  is  informed of  their                                                                    
     rights, and  changing the word  "to" to the  word "may"                                                                    
     again  insured that  patients or  their representatives                                                                    
     were  made aware  of their  rights but  this was  not a                                                                    
     directive  to seek  legal counsel.    So again,  making                                                                    
     aware versus a directive.                                                                                                  
                                                                                                                                
1:40:11 PM                                                                                                                    
                                                                                                                                
     And  finally, under  Section  4, page  4,  line 4,  the                                                                    
     CONDITIONAL EFFECT  was amended  to include  Section AS                                                                    
     09.55.545.    This  was basically  a  language  cleanup                                                                    
     because in  the original  bill only AS  09.55.544 would                                                                    
     require a  2/3 majority to  take effect, and  this left                                                                    
     open the possibility  that should the bill  pass with a                                                                    
     simple  majority that  one section  would be  added and                                                                    
     the other  section would not.   So, this was  to ensure                                                                    
     that those sections were added.                                                                                            
                                                                                                                                
1:41:19 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG  questioned  if there  is  a  technical                                                               
difference  between  an  "admission"  and  a  "statement  against                                                               
interest," and  he requested the  citation for the two  issues in                                                               
the Rules of Evidence.                                                                                                          
                                                                                                                                
1:42:14 PM                                                                                                                    
                                                                                                                                
MEGAN WALLACE,  Attorney, Legislative Legal  Counsel, Legislative                                                               
Legal  and  Research   Services,  Legislative  Affairs  Services,                                                               
explained  that  an admission  is  considered  not hearsay  under                                                               
Alaska Rules  of Evidence 801,  and a statement  against interest                                                               
is  an exception  to  the  Hearsay Rules  under  Alaska Rules  of                                                               
Evidence 804.                                                                                                                   
                                                                                                                                
1:43:12 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  surmised that located on  page 2, lines                                                               
[20-22], are  expressions of sympathy that  are inadmissible, but                                                               
if it is legally an  admission [of liability] that is admissible.                                                               
He  suggested the  language  be  changed to  "an  admission or  a                                                               
statement  against   interest,"  since   they  are   legally  two                                                               
different [issues].                                                                                                             
                                                                                                                                
1:44:24 PM                                                                                                                    
                                                                                                                                
MS. WALLACE  said that HB 250  does not define admission  as only                                                               
an admission under Alaska Rules  of Evidence 801, and she thought                                                               
it  might  clarify  whether  the statement  is  construed  as  an                                                               
admission or a  statement against interest.  She  opined that the                                                               
legislature can't  determine every statement that  this rule will                                                               
apply  to as  to  whether a  court  would construe  it  to be  an                                                               
admission or  just a statement  against interest.  She  said that                                                               
admission of liability or negligence  is just a general term, and                                                               
it  was  not  intentionally  meant   to  be  constrained  to  the                                                               
definition of admission  by party opponent under  Alaska Rules of                                                               
Evidence 801.                                                                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG,  as co-sponsor, said they  would take a                                                               
few days to  look at this issue,  as a sharp lawyer  might say he                                                               
or she  is not  offering this  as an  admission, but  a statement                                                               
against interest,  and that is not  the intention of HB  250.  He                                                               
expressed that he thinks it is a very good bill.                                                                                
                                                                                                                                
CHAIR KELLER agreed, and he said that  the fact that it is law in                                                               
over 30 tells us that most  of these questions have probably been                                                               
vetted many times.  "So we  shouldn't have a whole lot of trouble                                                               
getting the bugs out of it," he added.                                                                                          
                                                                                                                                
1:47:19 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LYNN  noted  his  understanding  about  a  doctor                                                               
telling  a relative  of someone  who  passed away  that they  are                                                               
sorry  for  their  loss  and  they  have  his  or  her  sincerest                                                               
sympathy,  but how  would HB  250  address a  doctor saying  "I'm                                                               
really sorry I  left the sponge in your lungs?"  He asked if that                                                               
would be admissible evidence.                                                                                                   
                                                                                                                                
MS. O'SULLIVAN advised that the  addition of subsection (b) [page                                                               
2, lines  18-22] was attempted  to address that  concern exactly.                                                               
There is precedence in 20  other states where similar subsections                                                               
exist to  clarify that if an  admission of negligence is  made in                                                               
conjunction with  an apology, without expression  of benevolence,                                                               
that that statement is subject to additional scrutiny.                                                                          
                                                                                                                                
1:49:10 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GABRIELLE LEDOUX asked for  the purpose of HB 250,                                                               
because  a  statement  of apology,  sympathy,  commiseration,  or                                                               
compassion has nothing to do with  a statement of liability.  She                                                               
questioned why it would be  introduced as the plaintiff would not                                                               
introduce  it  to make  the  doctor  look  good, "if  all  you're                                                               
talking  about is  if the  doctor  said, 'I'm  really sorry  this                                                               
happened.'"                                                                                                                     
                                                                                                                                
1:51:12 PM                                                                                                                    
                                                                                                                                
MS. O'SULLIVAN  responded that there  is a strong  precedence for                                                               
these bills in  other states as members of  the medical community                                                               
have expressed  it feels  like there  is a gag  order on  them in                                                               
that  they cannot  communicate effectively  with their  patients;                                                               
they feel hindered  by the fear of lawsuits.   She opined that HB
250  attempts to  get the  conversation going  and stop  lawsuits                                                               
before they happen.   She then referred to the  Journal of Health                                                               
&  Life Sciences  Law contained  within each  member's packet  on                                                               
page 133-134,  wherein a survey  was performed and 37  percent of                                                               
respondents  said   that  if  there   had  been  an   apology  or                                                               
explanation of what  had happened that they would  not have sued.                                                               
These laws  are an important  component in the bigger  picture of                                                               
malpractice reform,  and she explained  that she has  spoken with                                                               
doctors  and  their  representatives  and they  feel  HB  250  is                                                               
necessary.  Ms. O'Sullivan deferred  to the Executive Director of                                                               
the Alaska  State Medical Association  [Mike Haugen] to  speak in                                                               
more detail.                                                                                                                    
                                                                                                                                
1:52:20 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LEDOUX   speculated  that  [physicians]   may  be                                                               
hamstrung  by  the  actual  statute, or  they  may  be  hamstrung                                                               
because their insurance company gives  them strict orders to keep                                                               
their mouths shut.                                                                                                              
                                                                                                                                
1:55:23 PM                                                                                                                    
                                                                                                                                
MIKE   HAUGEN,   Executive   Director,   Alaska   State   Medical                                                               
Association,  stated that  the Alaska  State Medical  Association                                                               
supports  HB 250.   Physicians  feel it  should lead  to improved                                                               
communications  between patients  and physicians,  and it  should                                                               
lessen the chance  for miscommunication which results  in fear of                                                               
litigation, he opined.                                                                                                          
                                                                                                                                
1:56:09 PM                                                                                                                    
                                                                                                                                
CHAIR KELLER announced HB 250 was set aside.                                                                                    
                                                                                                                                

Document Name Date/Time Subjects
CSHB 127 (JUD) Proposed Amendments D.1 and D.2.pdf HJUD 3/24/2014 1:00:00 PM
HB 127
SB 64 - Bill Versions.zip HJUD 3/24/2014 1:00:00 PM
SB 64
SB 64 - Fiscal Notes.zip HJUD 3/24/2014 1:00:00 PM
SB 64
SB 64 - Support Documents.zip HJUD 3/24/2014 1:00:00 PM
SB 64
SB 64 - Letters of Support-Opposition.zip HJUD 3/24/2014 1:00:00 PM
SB 64
SB 64 Letter of Opposition~Fred Meyer.pdf HJUD 3/24/2014 1:00:00 PM
SB 64