Legislature(2005 - 2006)BUTROVICH 205
05/02/2006 08:30 AM JUDICIARY
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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.