Legislature(2003 - 2004)
03/03/2004 08:05 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, 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.