Legislature(2003 - 2004)

02/25/2004 08:00 AM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
         CSHB 260(JUD)-IMMUNITY FOR PROVIDING FREE HEALTH CARE                                                              
                                                                                                                                
   REPRESENTATIVE PAUL  SEATON,  sponsor of  HB  260, explained  the                                                            
   purpose of  HB  260 is  to  encourage  health care  providers  to                                                            
   provide services to Alaskans  who would not otherwise be  able to                                                            
   obtain proper health  care. It  does so  by offering immunity  to                                                            
   liability for civil  damages resulting from  an act  of omission.                                                            
   HB 260 is consistent with the Volunteer Protection  Act passed by                                                            
   Congress in  1997.  The  bill requires  written  notification  to                                                            
   patients of the provider's immunity to civil prosecution.                                                                    
                                                                                                                                
   [SENATOR THERRIAULT arrived.]                                                                                                
                                                                                                                                
   REPRESENTATIVE SEATON  said  the  Senate  HESS Committee  made  a                                                            
   change to Section 3;  it clarifies that  the health care  must be                                                            
   provided in conjunction  with a  government entity or  non-profit                                                            
   organization and the  health care provider  is acting  within the                                                            
   scope of the provider's  actively maintained license.  Nothing in                                                            
   the legislation  provides immunity  for  the agency  or the  non-                                                            
   profit  agency;  they  must  carry  malpractice  insurance.  CSHB
   260(JUD) will allow health  care providers, especially  those who                                                            
   have retired  and  no  longer  carry  malpractice  insurance,  to                                                            
   provide services.                                                                                                            
                                                                                                                                
   He noted  the sideboards  in the  legislation  are that  immunity                                                            
   does not  apply to  the organization  or to  gross negligence  or                                                            
   willful acts. He indicated members' packets  contain a definition                                                            
   of  gross  negligence  and   willful  act  used   throughout  the                                                            
   statutes. He offered to answer questions.                                                                                    
                                                                                                                                
   SENATOR OGAN said he did not see any specific  mention of retired                                                            
   health care  providers in  CSHB 260(JUD)  and asked  if the  bill                                                            
   will apply to others.                                                                                                        
                                                                                                                                
   REPRESENTATIVE  SEATON  said  it  provides  immunity  for  anyone                                                            
   working within the scope of his or her  license. It is especially                                                            
   critical for retired  medical providers because  many of  them do                                                            
   not carry medical malpractice  insurance. He pointed out  it will                                                            
   not prevent compensation for expenses, so that  a community could                                                            
   provide transportation  and  housing  to a  medical  professional                                                            
   when traveling to the community to provide  services but the term                                                            
   "compensation" is well defined in the legislation.                                                                           
                                                                                                                                
   SENATOR THERRIAULT  asked how  it might  apply to  a health  care                                                            
   provider who offered free  services on a cruise ship  and whether                                                            
   that person would get a free cruise and be covered.                                                                          
                                                                                                                                
   REPRESENTATIVE  SEATON  noted   "compensation"  means   receiving                                                            
   something of value, which is defined in the federal law as well.                                                             
                                                                                                                                
   CHAIR SEEKINS asked if  non-profit organizations are  required to                                                            
   carry medical malpractice insurance.                                                                                         
                                                                                                                                
   REPRESENTATIVE SEATON deferred to Mr. Haugen for an answer.                                                                  
                                                                                                                                
   CHAIR SEEKINS  said he  wondered  if anyone  would  be liable  if                                                            
   these services  are  provided  at  the facilities  of  non-profit                                                            
   organizations.                                                                                                               
                                                                                                                                
   REPRESENTATIVE  SEATON  said   the  bill  specifically   requires                                                            
   written recognition  by  the patient  that  the  provider is  not                                                            
   liable. In  addition,  the provider  must  be  working under  the                                                            
   authority of  a  non-profit organization  or  another agency.  He                                                            
   said it does not  apply to an  individual who provides  a service                                                            
   independently; there must be some contractual relationship.                                                                  
                                                                                                                                
   SENATOR  FRENCH  asked  how   many  health  care   providers  are                                                            
   currently offering free services at their  own economic detriment                                                            
   and how many might participate if CSHB 260(JUD) is enacted.                                                                  
                                                                                                                                
   REPRESENTATIVE SEATON  said he  could  not provide  a number.  He                                                            
   said numerous  medical professional  associations have  contacted                                                            
   him and they all support this bill.                                                                                          
                                                                                                                                
   SENATOR FRENCH complimented  Representative  Seaton and staff  on                                                            
   the excellent back-up material they provided.                                                                                
                                                                                                                                
   CHAIR SEEKINS  announced  that the  committee  would take  public                                                            
   testimony.                                                                                                                   
                                                                                                                                
   MR. MIKE  HAUGEN,  Director of  Alaska  Physicians and  Surgeons,                                                            
   said  his  association   represents  about   170  physicians   in                                                            
   Anchorage and  2  in  Fairbanks.  He noted  statistics  cite  the                                                            
   average age  of an  Alaskan  physician at  51.  In addition,  the                                                            
   state is not recruiting enough new doctors  to replace them. Many                                                            
   of his members are  in their late  50s and 60s; he  believes many                                                            
   of them would take  advantage of a  bill like this. They  are not                                                            
   ready  to  "hang   up  their  shingles"   and  walk   away  after                                                            
   accumulating a lifetime of  knowledge. He believes  CSHB 260(JUD)                                                            
   will give physicians  an incentive to  retire in Alaska  and help                                                            
   the communities that are  not well served. A  Providence Hospital                                                            
   study reported that Anchorage alone has a shortage  of 160 to 200                                                            
   doctors.                                                                                                                     
                                                                                                                                
   SENATOR FRENCH  asked  how  much  medical  malpractice  currently                                                            
   costs for a general practitioner, or non-specialist.                                                                         
                                                                                                                                
   MR. HAUGEN  said  he  believes  a general  internist  pays  about                                                            
   $15,000 per  year  and that  the  premiums have  been  increasing                                                            
   rapidly.  He  said  most  physicians  do  not  carry  malpractice                                                            
   insurance once they retire.                                                                                                  
                                                                                                                                
   CHAIR SEEKINS asked  if a  retired physician without  malpractice                                                            
   insurance could have hospital privileges throughout the state.                                                               
                                                                                                                                
   MR. HAUGEN could not answer that question.                                                                                   
                                                                                                                                
   CHAIR SEEKINS  said he was  wondering if  the Fairbanks  Memorial                                                            
   Hospital,  for  example,  could  allow  a  retired  physician  to                                                            
   perform  surgery  at   no  charge   with  the  patient's   signed                                                            
   understanding  that  the  physician  did  not  carry  malpractice                                                            
   insurance.                                                                                                                   
                                                                                                                                
   MR. HAUGEN thought  each hospital  would make that  determination                                                            
   on an individual basis.                                                                                                      
                                                                                                                                
   CHAIR SEEKINS  asked Mr.  Haugen,  as an  attorney,  if he  would                                                            
   recommend that a hospital allow that.                                                                                        
                                                                                                                                
   MR. HAUGEN said probably not.                                                                                                
                                                                                                                                
   SENATOR OGAN asked if a paid staff person  follows a direct order                                                            
   of a physician who is immune from liability  would also be immune                                                            
   from liability.                                                                                                              
                                                                                                                                
   MR. HAUGEN said he believes  the facility would be  liable if the                                                            
   paid staffer is  employed by the  facility, however  he hesitated                                                            
   to give a definitive answer.                                                                                                 
                                                                                                                                
   SENATOR OGAN asked if other states have similar legislation.                                                                 
                                                                                                                                
   MR. HAUGEN said Alaska  would be one  of the last states  to pass                                                            
   such legislation. Over 40 states currently have similar laws.                                                                
                                                                                                                                
   SENATOR OGAN asked if any case law has been established.                                                                     
                                                                                                                                
   MR. HAUGEN said  he has  been told  that very  few lawsuits  have                                                            
   been brought against  physicians who are  immunized by  this type                                                            
   of legislation.                                                                                                              
                                                                                                                                
   SENATOR FRENCH asked what  standard a paid staffer would  be held                                                            
   to - negligence or gross negligence.                                                                                         
                                                                                                                                
   MR. HAUGEN said  the bill  would not immunize  paid staff  so the                                                            
   standard would remain the same.                                                                                              
                                                                                                                                
   CHAIR SEEKINS  asked where  the paid  staffer would  fall in  the                                                            
   matter of responding to that superior.                                                                                       
                                                                                                                                
   MR. HAUGEN said he could not answer that question.                                                                           
                                                                                                                                
   REPRESENTATIVE SEATON  pointed  out  that  Version V  contains  a                                                            
   slight drafting error.                                                                                                       
                                                                                                                                
   SENATOR THERRIAULT  moved  to  adopt  Version  V as  the  working                                                            
   document before the committee.                                                                                               
                                                                                                                                
   CHAIR SEEKINS  announced that  without objection,  Version V  was                                                            
   before the committee.                                                                                                        
                                                                                                                                
   REPRESENTATIVE  SEATON noted  on  page  2,  line  22,  the  words                                                            
   "medical  clinic,"  should  be  inserted  between  "in  the"  and                                                            
   "governmental entity."                                                                                                       
                                                                                                                                
   SENATOR THERRIAULT moved to  make the aforementioned  addition to                                                            
   page 2, line 22.                                                                                                             
                                                                                                                                
   CHAIR  SEEKINS  announced  that  without  objection,  the  motion                                                            
   carried. He then took public testimony.                                                                                      
                                                                                                                                
   8:23 a.m.                                                                                                                    
                                                                                                                                
   MS. MARIE DARLIN, Coordinator of the Capital  City Task Force for                                                            
   AARP, informed members  that AARP submitted  a written  letter of                                                            
   support. AARP believes this  legislation will help  alleviate the                                                            
   overall need for physicians  in Alaska. At least 43  other states                                                            
   have enacted similar  legislation, so it  has been  tried before,                                                            
   found to work, and created a win-win situation for everyone.                                                                 
                                                                                                                                
   MS. PAT  SENNER,  Alaska  Nurses  Association (ANA),  said  ANA's                                                            
   interest in  this bill  stems  from its  efforts  to have  nurses                                                            
   ready to volunteer in a  time of need, whether that  be a natural                                                            
   disaster, act  of terrorism  or  disease outbreak.  She said  the                                                            
   current  statutes  have  been  patched  together  over  time  and                                                            
   contain holes. It would be  helpful to review those  statutes and                                                            
   draft a more  comprehensive set.  However,  in the meantime,  the                                                            
   current  statutes  do  not   cover  health  care   providers  who                                                            
   volunteer to  care  for  individuals  with  non-life  threatening                                                            
   illnesses in times of  protracted emergency events.  For example,                                                            
   after September  11, the Red  Cross sheltered  air travelers  who                                                            
   were stranded in  Anchorage. Those travelers'  lives were  not in                                                            
   immediate danger, but they had a need for health care services.                                                              
                                                                                                                                
   MS. SENNER thanked  Representative Seaton  for amending  the bill                                                            
   to include  "temporary  emergency site,"  as  its inclusion  will                                                            
   help  health   care   providers   who  volunteer   in   emergency                                                            
   situations. She  said  the  important  factors  are  under  whose                                                            
   auspices individuals volunteer and whether they  are qualified to                                                            
   provide health care services  - not where they  provide services.                                                            
   The amended language  addresses those  factors. Another  group of                                                            
   health care providers covered by this bill  would be employees of                                                            
   the federal government who are covered by  the federal government                                                            
   legal system in terms  of malpractice insurance.  Those employees                                                            
   do not carry their own malpractice insurance.                                                                                
                                                                                                                                
   CHAIR  SEEKINS  asked   if  nurses  normally   carry  malpractice                                                            
   insurance.                                                                                                                   
                                                                                                                                
   MS. SENNER said the ANA  encourages them to do so  but they often                                                            
   rely on their employers' insurance.                                                                                          
                                                                                                                                
   CHAIR SEEKINS  asked  where a  nurse  would purchase  malpractice                                                            
   insurance.                                                                                                                   
                                                                                                                                
   MS. SENNER said the  ANA offers malpractice insurance  except for                                                            
   the delivery of babies.                                                                                                      
                                                                                                                                
   CHAIR SEEKINS  noted that  with no  further participants,  public                                                            
   testimony was  closed. He  then said  he would hold  the bill  in                                                            
   committee  so  that  the  committee  could  get  answers  to  the                                                            
   question of  liability  of staff  taking  direct  orders and  the                                                            
   question of liability for nurses providing emergency care.                                                                   

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