Legislature(2003 - 2004)
03/03/2004 08:05 AM Senate JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CSHB 260(JUD)-IMMUNITY FOR PROVIDING FREE HEALTH CARE
REPRESENTATIVE PAUL SEATON, sponsor of HB 260, provided the
following answers to four questions asked by members at the last
meeting. The first question was whether a nurse would be immune
from liability if s/he followed the negligent order of a doctor
and whether the hospital or non-profit agency would be liable.
He explained the research shows that a nurse would only be
liable for his or her actions and cannot be held liable for the
negligence of another. However, if a nurse should have known
that a doctor's order was negligent, based on the nurse's
standard of expertise, the nurse would be considered negligent.
Also, the medical facility or agency could be held liable as
well. There is some case history established on that question,
which he provided in a memo to committee members dated February
27.
REPRESENTATIVE SEATON said the second question was whether a
doctor, when volunteering medical services aboard a cruise ship,
would be considered to be receiving compensation. He said
immunity is only provided when the volunteer services are
provided in a medical facility owned or operated by a
governmental agency or a non-profit agency. He said although it
seems unlikely that a medical facility on a cruise ship would be
owned by such an entity, the committee could limit the
legislation to land-based facilities or specifically exclude
cruise ships. He cautioned that a cruise ship could function as
an emergency medical facility at some time.
The third question was whether all Alaska hospitals require
physicians to have medical liability insurance before they are
given hospital privileges and, if so, could the doctor operating
in a hospital take advantage of the immunity provided under this
act. He explained that most hospitals do require physicians to
have medical liability insurance. Alaska Regional Hospital does
not. If a hospital does require insurance, the hospital would
have to have specific provisions in its by-laws to accommodate
the use of the facility. That would not apply to nurses because
most nurses do not carry personal liability insurance and rely
on the facility's protections.
REPRESENTATIVE SEATON said the last question was whether all
non-profits have insurance. He said Alaska does not have a
mandatory insurance law for health care providers, except for
emergency room physicians. Recognizing that a non-profit could
be held liable for employees and volunteers, he surmised that an
agency would want to protect itself from liability with
insurance.
SENATOR OGAN said the committee discussed a scenario where a
physician who is immune from liability gave a direct order to a
paid staff person. He asked whether that staff person is immune
from liability as well. He asked Representative Seaton to
discuss the legal opinion on that question.
REPRESENTATIVE SEATON said the discussion surrounded a nurse who
was carrying out a doctor's orders. The nurse would not assume
liability for a doctor's orders unless the order or procedure
was within the scope of her knowledge, experience and expertise.
CHAIR SEEKINS said if the nurse refused a doctor's order and it
was later shown that she was acting in a precautionary manner
within the scope of her authority but was wrong, she would be
liable.
REPRESENTATIVE SEATON said the legal opinion addresses whether
or not the non-profit organization would be liable and it would
be. He thought there may be some concerns that insurance costs
for non-profits may rise.
REPRESENTATIVE SEATON said he believes that non-profits and
government agencies would want to carry liability insurance for
both paid doctors and volunteer doctors.
CHAIR SEEKINS said a constituent asked him whether a doctor who
performed an abortion in a non-profit clinic would be immune
from liability under this law.
REPRESENTATIVE SEATON replied that this bill only covers illness
or injury so it would not apply in the case of abortion because
pregnancy has never been classified as an illness or injury. He
noted the House Judiciary Committee had an extensive discussion
on that question. He said it is not his intent to cover abortion
procedures under this bill.
CHAIR SEEKINS commented that he likes the intent of HB 260 but
he is not sure of the unintended consequences for all parties.
REPRESENTATIVE SEATON reminded members that this bill requires
written notification to any patient.
CHAIR SEEKINS took public testimony.
MS. JOAN FISHER, Executive Director of the Anchorage
Neighborhood Health Center (ANHC), stated support for HB 260.
The ANHC often has physicians who want to volunteer at the
clinic. The ANHC has Federal Claims Tort Act Coverage but that
insurance does not cover volunteers. She noted that when
physicians and nurses with insurance coverage volunteer at the
clinic, the ANHS checks to see if they have valid licenses and
whether they have had any claims filed against them. This
legislation will help the ANHS to help very low-income patients
with no insurance. She noted that many mid-level practitioners
are willing to see patients on a volunteer basis but are afraid
to because of the liability issue. She said this bill is
necessary in order to set up a volunteer network.
SENATOR OGAN asked Ms. Fisher if the ANHC is concerned about an
increase in insurance rates resulting from this bill.
MS. FISHER said it is not because it has Federal Claims Tort Act
coverage, which is paid for by the federal government. In
addition, the ANHS is careful to credential all volunteers and
provide quality oversight.
DR. CATHY SCHUMACHER, Chair of the Anchorage Access to
Healthcare Coalition, stated support for HB 260 because this
legislation will allow physicians to volunteer their time
without fear of litigation. The Coalition is working with the
ANHS on a volunteer model, based on a model developed in
Asheville, North Carolina. North Carolina has similar
legislation that allows its network to function.
CHAIR SEEKINS asked if doctors generally support being able to
provide volunteer care without having to burden their
malpractice coverage.
MR. JOHN HAUGEN, Alaska Physicians and Surgeons, said he does
not believe that was the intent. This legislation will allow
physicians to volunteer their services in a village. He noted
those physicians would be carrying malpractice insurance anyway.
This issue arose with a group of some of Alaska Physicians and
Surgeons more senior doctors who are close to retiring. Those
physicians are looking for ways to continue to participate in
their profession and give back to their communities. He noted
that although the retired physician component was emphasized, it
is broad enough to encompass other healthcare providers because
of a desire by other constituencies to participate.
CHAIR SEEKINS asked if any healthcare provider, not just a
retired physician, that provides volunteer services to another
person is not liable for civil damages resulting from an act of
omission.
MR. HAUGEN added if a patient signs an informed consent.
REPRESENTATIVE SEATON added that the services must be provided
under the auspices of a non-profit or governmental agency and
only if the physician is operating within the scope of his or
her current license.
MR. HAUGEN clarified that Alaska is a several liability state so
if one envisions a lawsuit as a pie, and the doctor's share is
one-third, the nurse's share is one-third, and the facility's
share is one-third, this bill does not increase the potential
liability for the nurse or the hospital. It removes the doctor's
pro-rata share of a potential judgment but the other two parties
will only be responsible for their one-third shares.
SENATOR OGAN felt HB 260 is a great bill. He said it will go a
long way to help Alaskans who cannot afford healthcare.
CHAIR SEEKINS noted for the record that his wife is a registered
nurse who does a lot of volunteer work. He then announced that
with no further participants, public testimony was closed.
SENATOR OGAN moved SCS CSHB 260(JUD), version V, from committee
with individual recommendations. There being no objection, the
motion carried.
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