Legislature(2005 - 2006)

03/27/2006 02:03 PM JUD


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HB 442 - HEALTH CARE DECISIONS                                                                                                
                                                                                                                                
2:46:18 PM                                                                                                                    
                                                                                                                                
CHAIR McGUIRE  announced that the  final 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."   [Before the                                                               
committee was CSHB 442(HES).]                                                                                                   
                                                                                                                                
2:46:39 PM                                                                                                                    
                                                                                                                                
JACQUELINE  TUPOU,  Staff   to  Representative  Bruce  Weyhrauch,                                                               
Alaska  State  Legislature,  sponsor,   explained  on  behalf  of                                                               
Representative  Weyhrauch  that HB  442  makes  minor changes  to                                                               
Alaska's  Health Care  Decisions Act,  which was  passed in  2004                                                               
with the goal  of modernizing and improving  Alaska's health care                                                               
laws.    Current  law  imposes   a  duty  of  investigation  upon                                                               
physicians who  are carrying out  the health care  [directives of                                                               
their  patients],  and  HB  442 would  conform  the  language  in                                                               
Alaska's  Act   to  the  language  in   the  Uniform  Health-Care                                                               
Decisions  Act, providing  for the  more appropriate  standard of                                                               
acting [with a good faith belief].                                                                                              
                                                                                                                                
MS.  TUPOU  relayed   that  the  bill  also   replaces  the  term                                                               
"attending   physician"  with   the   term  "physician"   because                                                               
according to the  doctors that the sponsor  contacted, the former                                                               
term is not  used much any more; this will  clarify the sponsor's                                                               
intent  that  all of  a  patient's  physicians should  honor  the                                                               
patient's   healthcare  directives.      Furthermore,  the   bill                                                               
clarifies when  cardiopulmonary resuscitation (CPR) can  be used,                                                               
addresses  the  issue  of  the  validity  of  orders  from  other                                                               
jurisdictions, and  indicates under what circumstances  a "do not                                                               
resuscitate"  (DNR) order  may be  revoked.   In conclusion,  she                                                               
characterized  Alaska's  Health  Care   Decisions  Act  as  being                                                               
immensely  beneficial  in  helping terminally  ill  patients  and                                                               
their families and  loved ones, and HB 442 as  attempting to very                                                               
narrowly address certain issues.                                                                                                
                                                                                                                                
REPRESENTATIVE GARA  referred to  the language  on page  4, lines                                                               
25-26,  and asked  what the  addition of  that language  will do;                                                               
that language read:                                                                                                             
                                                                                                                                
      (C)  because the patient is a woman of childbearing                                                                   
     age and AS 13.52.055 applies;                                                                                          
                                                                                                                                
MS.  TUPOU  offered   her  understanding  that  if   there  is  a                                                               
reasonable  belief that  a woman  could be  pregnant, under  that                                                               
language a physician could perform  resuscitative measures on the                                                               
woman;  this   provision  essentially  addresses  the   issue  of                                                               
liability for a physician who undertakes such measures.                                                                         
                                                                                                                                
REPRESENTATIVE GARA  said he  is supportive of  the bill,  but is                                                               
concerned  about where  the line  is drawn  between having  a DNR                                                               
order and withdrawing nutrition and  other services, and going to                                                               
the  next  step,  which  many  call euthanasia.    He  asked  for                                                               
clarification regarding what  a medical professional may  do if a                                                               
patient asks for help dying.                                                                                                    
                                                                                                                                
MS. TUPOU offered  her understanding that in order  to be granted                                                               
a DNR order,  one must have a qualifying  terminal condition, and                                                               
current  law contains  a definition  of what  would constitute  a                                                               
qualifying terminal condition.                                                                                                  
                                                                                                                                
CHAIR  McGUIRE  offered  her   understanding  of  the  difference                                                               
between  euthanasia and  a  situation that  could  involve a  DNR                                                               
order.                                                                                                                          
                                                                                                                                
MS.  TUPOU,  in  response  to questions  regarding  the  language                                                               
pertaining to  a woman  of childbearing  years, indicated  that a                                                               
physician would  have a  duty to ascertain  whether the  woman is                                                               
pregnant,  and,  if she  is,  regardless  of  what stage  of  her                                                               
pregnancy  she  is   in,  the  physician  would   at  that  point                                                               
administer resuscitative measures.                                                                                              
                                                                                                                                
2:53:59 PM                                                                                                                    
                                                                                                                                
SHELLEY  OWENS,   Health  Program  Manager,  Section   of  Injury                                                               
Prevention  &  Emergency  Medical Services,  Division  of  Public                                                               
Health, Department of Health and  Social Services (DHSS), relayed                                                               
that  she  administers  the  Comfort One  Program  and  would  be                                                               
commenting  on how  Section 5  of  HB 442  will impact  emergency                                                               
medical technicians  (EMTs) and  other emergency  responders, and                                                               
that members'  packets contain  a letter  from section  chief Tim                                                               
Bundy.  She offered her  understanding that members' packets also                                                               
contain an amendment  by the sponsor that is  intended to address                                                               
the DHSS's concerns.  She went on to say:                                                                                       
                                                                                                                                
     The  Comfort One  Program  has been  in  effect for  10                                                                    
     years,  and  it  provides   a  standard  procedure  for                                                                    
     [emergency  medical service  (EMS)] responders  outside                                                                    
     of a  hospital to  identify and honor  the wishes  of a                                                                    
     terminally ill patient not to  be resuscitated when his                                                                    
     or her  heart stops.  In  order to obtain a  DNR order,                                                                    
     ... a patient  must have a terminal condition  or be in                                                                    
     a state  of permanent  unconsciousness.  The  DNR order                                                                    
     must be  signed by a  doctor, and takes effect  only at                                                                    
     the  time of  cardiac  arrest.   If  a  DNR patient  is                                                                    
     choking on a piece of food,  breaks a hip, or gets into                                                                    
     a  car accident,  EMS personnel  will treat  them using                                                                    
     standard medical procedures.                                                                                               
                                                                                                                                
     We're concerned about the use  of the term "health care                                                                    
     provider"  in   Section  5,  ...  and   want  to  thank                                                                    
     Representative Weyhrauch  for preparing  the amendment,                                                                    
     which  would cure  our concerns.    The [term]  "Health                                                                    
     care provider" is defined in  [AS 13.52.390(23)] as "an                                                                    
     individual    licensed,    certified,   or    otherwise                                                                    
     authorized or  permitted by law to  provide health care                                                                    
     in the  ordinary course  of business  or practice  of a                                                                    
     profession".  This term  would include emergency trauma                                                                    
     technicians [ETTs]  who have  only 40 hours  of initial                                                                    
     training  in  advanced  first aid.    Section  5  would                                                                    
     authorize  providers with  limited medical  training to                                                                    
     override  a physician's  DNR order  on the  basis of  a                                                                    
     diagnosis  which  they  are not  medically  trained  to                                                                    
     make.    It wouldn't  be  possible  to train  emergency                                                                    
     providers, such as  an ETT, to diagnose if  a person is                                                                    
     dying of  their terminal  condition or  as a  result of                                                                    
     the action of the health care provider.                                                                                    
                                                                                                                                
     I understand that a concern  of the drafters is that if                                                                    
     a DNR  patient goes into cardiac  arrest during surgery                                                                    
     for  a condition  unrelated to  the patient's  terminal                                                                    
     condition, a  surgeon or  anesthesiologist may  want to                                                                    
     resuscitate  the patient;  however, it's  possible [the                                                                    
     bill  drafters] ...  didn't anticipate  the consequence                                                                    
     to the  pre-hospital medical  providers and  the Alaska                                                                    
     Comfort One  Program.  There  are over  4,000 emergency                                                                    
     medical responders  in Alaska, of which  75 percent are                                                                    
     volunteers; they  have only  seconds to  make immediate                                                                    
     life  and  death  decisions.   They're  the  heart  and                                                                    
     backbone of  our emergency  response system  in Alaska,                                                                    
     but  they aren't  doctors and  shouldn't  be given  the                                                                    
     responsibility  to revoke  a doctor's  DNR  order.   It                                                                    
     wouldn't be fair to either them or the patient.                                                                            
                                                                                                                                
     We  would   urge  you  to  accept   ...  Representative                                                                    
     Weyhrauch's amendment,  and we  would support  the bill                                                                    
     if this amendment is adopted.  Thank you.                                                                                  
                                                                                                                                
2:57:30 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  ANDERSON indicated  a  willingness  to offer  the                                                               
aforementioned   amendment,  labeled   24-LS1618\F.3,  Bannister,                                                               
3/27/06 [later known as Amendment 1], which read:                                                                               
                                                                                                                                
     Page 3, line 10, following "patient.":                                                                                     
          Insert "This subsection does not apply when a                                                                         
     health   care  provider   performs  emergency   medical                                                                    
     services to  a patient in  the field, unless  an online                                                                    
     physician orders  the health  care provider  to perform                                                                    
     cardiopulmonary  resuscitation  or other  resuscitative                                                                    
     measures. In this subsection,                                                                                              
               (1)  "health care provider" does not include                                                                     
     a physician;                                                                                                               
               (2)  "in the field" does not include in a                                                                        
     health   care   facility,  health   care   institution,                                                                    
     hospital, or mental health facility;                                                                                       
               (3)  "online physician" means a physician                                                                        
     who is immediately  available in person or  by radio or                                                                    
     telephone,    when     medically    appropriate,    for                                                                    
     communication  of  medical  direction  to  health  care                                                                    
     providers."                                                                                                                
                                                                                                                                
REPRESENTATIVE  GRUENBERG  mentioned  that Kenneth  C.  Kirk  had                                                               
written  an article  for the  Alaska Law  Review addressing  [the                                                             
Health Care  Decisions Act]  noting a  number of  deficiencies in                                                               
the Act  and suggesting [improvements].   For  example, according                                                               
to Mr. Kirk,  there is a mis-reference  to "conservatorship" when                                                               
what is actually meant is  "guardianship".  He indicated a desire                                                               
to provide members with a copy of that article.                                                                                 
                                                                                                                                
2:59:32 PM                                                                                                                    
                                                                                                                                
JON  S. DAWSON,  Attorney  at Law,  Davis  Wright Tremaine,  LLP,                                                               
relayed  that  he   represents  Providence  Anchorage  Anesthesia                                                               
Medical Group,  P.C., a group  of anesthesiologists  that provide                                                               
anesthesia services  to [Providence  Alaska Medical Center].   He                                                               
said he wants to emphasize,  "from a real world perspective," the                                                               
importance  of passing  [HB  442].   Doctors  want  to honor  the                                                               
wishes of the patient, comply  with the law, and avoid liability.                                                               
Current  statute  speaks  to  a  requirement  that  doctors  "act                                                               
reasonably";  in  terms  of  advanced  care  directives  and  DNR                                                               
orders,  this  means that  doctors  are  required to  investigate                                                               
whether  an   order  or  directive   is  factually   and  legally                                                               
supportable.  This  is particularly an issue when  an order comes                                                               
from out of  state, and a doctor must determine  whether an order                                                               
or directive  complies with the laws  of the state from  which it                                                               
came; this  isn't possible  from a  practical standpoint,  and so                                                               
doctors are faced with either  performing a procedure against the                                                               
wishes of the  patient, or exposing themselves to  liability.  He                                                               
opined that  [HB 442]  does an excellent  job of  clarifying that                                                               
"good faith" is what is required.                                                                                               
                                                                                                                                
MR.  DAWSON  offered  his understanding  that  [Section  5]  will                                                               
address situations involving someone  with a terminal illness who                                                               
is having  some sort of procedure  done in order to  make his/her                                                               
final  months  more comfortable.    For  example, if  an  elderly                                                               
patient  has  fallen and  broken  a  hip,  it doesn't  mean  that                                                               
doctors shouldn't treat  the broken hip just  because the patient                                                               
is  suffering  from  a  terminal illness.    Under  current  law,                                                               
however,  if  an anesthesiologist  were  to  administer too  much                                                               
anesthesia to  such a  patient during  surgery, for  example, the                                                               
anesthesiologist would not be able  to correct his/her mistake if                                                               
the  patient  has a  DNR  order.    "Presumably people  who  seek                                                               
medical assistance,  even when they  have a DNR order,  want that                                                               
medical assistance  to succeed, and if  there is a mistake  or if                                                               
there is  something else unrelated  to that  [terminal] condition                                                               
that  needs to  be  corrected,  then it  ought  to be  corrected;                                                               
[Amendment 1]  ... permits that  to happen," he  remarked, noting                                                               
that [the  bill] also provides  some additional protection  for a                                                               
physician honoring a DNR order from being sued for malpractice.                                                                 
                                                                                                                                
3:05:19 PM                                                                                                                    
                                                                                                                                
MR. DAWSON,  in response  to a question,  relayed that  he'd only                                                               
read  the parts  of  Mr.  Kirk's article  that  pertained to  his                                                               
clients,  and  noted  that the  article  contains  case  examples                                                               
illustrating  how nationally  recognized cases  would have  fared                                                               
under Alaska's Health Care Decisions Act.                                                                                       
                                                                                                                                
REPRESENTATIVE  COGHILL noted  that  [Amendment 1]  says in  part                                                               
that a  "'health care  provider' does  not include  a physician",                                                               
and asked why that language is included.                                                                                        
                                                                                                                                
MR.  DAWSON  offered  his understanding  that  [Amendment  1]  is                                                               
designed to prevent EMS personnel  from being put in the position                                                               
of having to exercise their  discretion regarding DNR orders, but                                                               
if one is  actually a physician in the field,  then he/she should                                                               
have that discretion.                                                                                                           
                                                                                                                                
REPRESENTATIVE GRUENBERG asked whether  the bill should contain a                                                               
retroactive  effective   date,  retroactive  to  the   date  that                                                               
Alaska's Health Care Decisions Act was effective.                                                                               
                                                                                                                                
MR. DAWSON opined that such would be appropriate.                                                                               
                                                                                                                                
REPRESENTATIVE  GRUENBERG  remarked  that  when  members  have  a                                                               
chance  to read  Mr.  Kirk's  article, they  may  not want  every                                                               
provision of the bill to be retroactive.                                                                                        
                                                                                                                                
CHAIR  McGUIRE asked  Ms. Tupou  whether the  sponsor has  had an                                                               
opportunity  to   read  Mr.  Kirk's  article   and  whether  he's                                                               
considered including any of Mr. Kirk's suggested changes.                                                                       
                                                                                                                                
MS. TUPOU  relayed that the  sponsor is familiar with  Mr. Kirk's                                                               
article  and  agrees with  some  of  Mr.  Kirk's points  but  not                                                               
others,  and that  the sponsor  would  like to  just address  the                                                               
issues  now   contained  in   the  bill   but  may   give  future                                                               
consideration to the  other points raised in  Mr. Kirk's article;                                                               
therefore,  the  sponsor  would  not be  amenable  to  any  other                                                               
amendments.                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG  pointed out,  however, that  Mr. Kirk's                                                               
article addresses technical changes that could be in order.                                                                     
                                                                                                                                
MS. TUPOU reiterated that the sponsor has read that article.                                                                    
                                                                                                                                
The committee took an at-ease from 3:11 p.m. to 3:15 p.m.                                                                       
                                                                                                                                
3:16:04 PM                                                                                                                    
                                                                                                                                
CHAIR  McGUIRE, after  ascertaining that  no one  else wished  to                                                               
testify, closed public testimony on HB 442.                                                                                     
                                                                                                                                
CHAIR McGUIRE made  a motion to adopt Amendment  1 [text provided                                                               
previously].  There being no objection, Amendment 1 was adopted.                                                                
                                                                                                                                
3:16:47 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  made a motion  to adopt Amendment  2 to                                                               
add  a retroactive  effective  date clause  effective  as of  the                                                               
effective date of Alaska's Health Care Decisions Act.                                                                           
                                                                                                                                
REPRESENTATIVE  KOTT  sought  clarification that  such  a  clause                                                               
would pertain to the whole bill.                                                                                                
                                                                                                                                
REPRESENTATIVE GRUENBERG indicated that that is his intention.                                                                  
                                                                                                                                
CHAIR McGUIRE asked whether there were any objections to                                                                        
Amendment 2.  There being none, Amendment 2 was adopted.                                                                        
                                                                                                                                
3:17:44 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KOTT  moved to report  CSHB 442(HES),  as amended,                                                               
out  of   committee  with  individual  recommendations   and  the                                                               
accompanying zero  fiscal note.   There being no  objection, CSHB
442(JUD)  was   reported  from   the  House   Judiciary  Standing                                                               
Committee.                                                                                                                      

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