Legislature(2003 - 2004)
02/25/2004 08:00 AM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.