Legislature(2003 - 2004)

03/03/2004 08:05 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, 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                                                               
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                                                               
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                                                               
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                                                               
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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