Legislature(2005 - 2006)BUTROVICH 205

05/02/2006 08:30 AM JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= HB 414 INTERCEPTION OF MINOR'S COMMUNICATIONS TELECONFERENCED
Moved SCS CSHB 414(JUD) Out of Committee
+= HB 190 REQUIRED ID FOR PURCHASING ALCOHOL TELECONFERENCED
Heard & Held
+ HB 258 SEXUAL ASSAULT BY PERSON WITH HIV/AIDS TELECONFERENCED
Moved SCS CSHB 258(JUD) Out of Committee
+= HB 442 HEALTH CARE DECISIONS TELECONFERENCED
Heard & Held
                  HB 442-HEALTH CARE DECISIONS                                                                              
                                                                                                                              
10:22:50 AM                                                                                                                   
CHAIR  RALPH  SEEKINS  announced  CSHB  442(JUD)  to  be  up  for                                                               
consideration.                                                                                                                  
                                                                                                                                
JACQUELINE  TUPOU,  Staff   to  Representative  Bruce  Weyhrauch,                                                               
introduced the  bill. HB  442 would  make a  minor change  to the                                                               
Health  Care  Decisions Act  ("Alaska  Act")  of 2004  and  would                                                               
provide  clearer  direction  to those  implementing  health  care                                                               
decisions.                                                                                                                      
                                                                                                                                
Current law  imposes a  duty of  investigation upon  doctors when                                                               
carrying out  the health care  directives of their  patients. The                                                               
bill would amend  current statute to conform the  language in the                                                               
Alaska Act  to that of the  Uniform Act, thus requiring  a doctor                                                               
to act  in "good faith"  when time  is critical for  the patient.                                                               
The  bill   substitutes  the  word  "physician"   for  "attending                                                               
physician."  It clarifies  when CPR  can be  used, and  indicates                                                               
under what  circumstances a Do  Not Resuscitate" (DNR)  order may                                                               
be revoked.                                                                                                                     
                                                                                                                                
10:25:03 AM                                                                                                                   
SENATOR  GRETCHEN  GUESS  asked  Ms. Tupou  to  explain  the  new                                                               
additions in Section 5.                                                                                                         
                                                                                                                                
MS.  TUPOU reported  that was  to address  a specific  situation,                                                               
such  as a  person with  terminal cancer  with a  DNR order.  She                                                               
posed  a hypothetical  situation where  that person  breaks their                                                               
hip  and during  anesthesia and  surgery the  person "flatlines."                                                               
The bill  would allow for  the doctor  to administer CPR  in that                                                               
case  because he  would  be just  "correcting  his own  mistake."                                                               
Section 5 identifies  that in a secondary matter,  and nothing to                                                               
do  with   the  initial  qualifying  condition;   the  healthcare                                                               
provider could perform resuscitation.                                                                                           
                                                                                                                                
SENATOR HOLLIS  FRENCH asked whether  there was a cleaner  way to                                                               
write subsection (i).                                                                                                           
                                                                                                                                
MS.  TUPOU  said  she  thought   it  was  relatively  clear.  She                                                               
suggested that  a representative  from Providence  Alaska Medical                                                               
Center  could  explain  it  further.   She  added  that  (i)  was                                                               
clarifying that  a healthcare  provider could  perform CPR  if it                                                               
has nothing  to do with the  initial condition and (j)  says that                                                               
an  emergency  medical technician  is  not  held to  making  that                                                               
decision.                                                                                                                       
                                                                                                                                
10:28:48 AM                                                                                                                   
JOHN  DAWSON,   Attorney  with  Davis,  Wright,   Tremaine,  LLC,                                                               
testified  that  he  represents Providence  Anchorage  Anesthesia                                                               
Medical Group. He  said that provision (j) under Section  5 is an                                                               
exception  to an  exception to  an exception  and the  reason for                                                               
that structure is  that the original exception  referenced in (e)                                                               
simply says that a physician  may not, for reasons of conscience,                                                               
refuse to abide by DNR orders.                                                                                                  
                                                                                                                                
In other circumstances,  the physician may refuse to  abide by an                                                               
individual instruction  based on  conscience but DNR  orders were                                                               
not one of those types  of instructions. Subsection (i) basically                                                               
says  notwithstanding what  (e) says  a physician  may refuse  to                                                               
abide by  DNR instructions if  necessary to  remedy complications                                                               
arising out  of the  physician's services.  Subsection (j)  is an                                                               
exception to  that exception and was  a request by the  people in                                                               
the field who do not want to have that discretion.                                                                              
                                                                                                                                
10:30:54 AM                                                                                                                   
SENATOR  FRENCH  said  for  the   record,  people  in  the  field                                                               
(paramedics,  firefighters, police  officers) are  always allowed                                                               
to perform  CPR on an ailing  person but once the  person gets to                                                               
the hospital, the DNR order kicks in.                                                                                           
                                                                                                                                
MR. DAWSON countered  that a person in the field  must abide by a                                                               
DNR  order   as  well  unless   an  online   physician  indicates                                                               
otherwise.                                                                                                                      
                                                                                                                                
SENATOR FRENCH asked  how a person in the field  would know about                                                               
a DNR order.                                                                                                                    
                                                                                                                                
MR.  DAWSON  said   there  is  generally  a   bracelet  or  other                                                               
identifying item on the person.                                                                                                 
                                                                                                                                
MS.  TUPOU  interrupted  to  inform  the  committee  that  Alaska                                                               
participates  in  the  "Comfort  One  Program"  and  people  wear                                                               
bracelets to make healthcare officials aware of their wishes.                                                                   
                                                                                                                                
10:32:28 AM                                                                                                                   
MIKE  SCHNEIDER, Attorney,  testified  that he  practices law  in                                                               
Anchorage, mainly with personal injury.  He said he has done very                                                               
few medical  negligence cases  in over 30  years in  practice and                                                               
there have been  about a dozen plaintiff's verdicts  cases in the                                                               
history of  the State and Territory  of Alaska. He said  the bill                                                               
was basically a "solution in  search of a problem" and speculated                                                               
what the sponsor's intent was. He  stated that he has never heard                                                               
of a  verdict based on the  kinds of liability theories  that the                                                               
bill seeks to address.                                                                                                          
                                                                                                                                
10:35:18 AM                                                                                                                   
MR.  SCHNEIDER criticized  Section  8 and  said  if a  healthcare                                                               
provider,  through  a  medical  screw up,  makes  an  error  that                                                               
initiates a  life saving  effort, that  provider could  choose to                                                               
allow that  person to die  and be  immunized if that  decision is                                                               
made on  a "good faith  basis." He  took issue with  deleting the                                                               
language  in AS  13.52.080(a)  and suggested  that  it lessens  a                                                               
healthcare provider's responsibilities to the patient.                                                                          
                                                                                                                                
10:37:45 AM                                                                                                                   
CHAIR SEEKINS  said the way  he reads  it the phrase  "good faith                                                               
basis"  refers  to  determining  the  validity  of  the  advanced                                                               
healthcare directive  and not  in how  the provider  delivers the                                                               
medical services.                                                                                                               
                                                                                                                                
MR. SCHNEIDER  agreed but said as  he reads Section 9  it gives a                                                               
healthcare  provider the  ability to  allow a  patient to  die in                                                               
order to  cover up  a negligent  act, and  under Section  8 their                                                               
interpretation is subject only to a good faith standard.                                                                        
                                                                                                                                
CHAIR  SEEKINS said  he  interprets Section  9 to  say  if a  DNR                                                               
prevents them  from attempting to  resuscitate a  patient because                                                               
of complications,  there is no  criminal or civil  liability. But                                                               
subsection  (c) doesn't  apply if  the complications  suffered by                                                               
the patient are caused by gross negligence or reckless actions.                                                                 
                                                                                                                                
MR. SCHNEIDER  agreed but  suggested the  committee add  the word                                                               
"negligence" in front of "gross negligence" on line 16.                                                                         
                                                                                                                                
MR. DAWSON  added Section 9 begins  with a premise that  there is                                                               
in place a valid DNR order. A  physician should not be sued if he                                                               
honors a DNR order that has been  put in place by the patient, he                                                               
said. The  "good faith" requirement  pertains to whether  the DNR                                                               
order is valid or not.                                                                                                          
                                                                                                                                
10:43:41 AM                                                                                                                   
SENATOR  FRENCH asked  Mr. Dawson  to comment  on a  hypothetical                                                               
situation  of a  simple act  of  negligence that  results in  the                                                               
death  or  impairment of  a  patient.  He  asked the  reason  for                                                               
excluding that scenario from a DNR action.                                                                                      
                                                                                                                                
MR. DAWSON responded:                                                                                                           
     If we were  to include the exception  for negligence we                                                                    
     would essentially  swallow up  the ability of  a doctor                                                                    
     ever to  comply with  a DNR order.  The very  nature of                                                                    
     the Act to begin with is  that we want doctors to honor                                                                    
     the wishes of their patients.  At the same time we want                                                                    
     them to  honor that, we  don't want them to  be worried                                                                    
     about  liability when  they do  so. The  reason why  we                                                                    
     allow  this particular  scenario  where  you have  mere                                                                    
     negligence  is so  that a  doctor will  not be  worried                                                                    
     about  getting sued  every  time that  there  is a  DNR                                                                    
     order in place.                                                                                                            
                                                                                                                                
MS. TUPOU argued  that Representative Weyhrauch is  very aware of                                                               
the need for litigation and  protecting the consumer and the bill                                                               
is not  a "doctor exoneration bill."  It is meant to  address the                                                               
existing problem  that people who  have DNR's can't  find doctors                                                               
who  will operate  on them.  She  contended that  a doctor  would                                                               
never  want  to perform  surgery  on  a  DNR  person due  to  the                                                               
excessive liability.                                                                                                            
                                                                                                                                
10:47:43 AM                                                                                                                   
MR. SCHNEIDER replied, "Name one  verdict. Name two claims. Ain't                                                               
there."                                                                                                                         
                                                                                                                                
SENATOR GUESS said  she could not formulate her  response yet but                                                               
she could not support the bill on that premise.                                                                                 
                                                                                                                                
CHAIR SEEKINS held CSHB 442(JUD) in committee.                                                                                  

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