Legislature(2005 - 2006)BUTROVICH 205
05/03/2006 08:30 AM JUDICIARY
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HB 442-HEALTH CARE DECISIONS 8:39:06 AM CHAIR RALPH SEEKINS announced CSHB 442(JUD) to be up for consideration. REPRESENTATIVE BRUCE WEYHRAUCH offered to answer questions for the committee. CHAIR SEEKINS informed him that previous testimony from an attorney representing the Alaska Trial Lawyers Association suggested that the committee add the word "negligence" on page 5, line 16 just before the words "gross negligence." He asked Representative Weyhrauch to comment. REPRESENTATIVE WEYHRAUCH responded that the bill already replaces the words "reasonable" with "good faith." Part of the reason for that is because the family is usually in a highly emotional state when the physician is giving them options for the patient, while recognizing that the patient is terminally ill. The patient has already communicated their desire to their "agent" that there be no extraordinary measures taken to keep them alive. Often family members insist that every conceivable measure be taken and so the physician and the agent need to have that good faith reliance that the advanced healthcare directive has been specific and legally executed. The intent of the bill is not to relieve anyone from liability, it is to ensure that the healthcare provider operate in a good faith manner when making decisions. 8:43:48 AM SENATOR GRETCHEN GUESS recognized that there is not a working definition of "good faith" in statute and yet there is a working definition of "reasonable." REPRESENTATIVE WEYHRAUCH responded that the working definition of "reasonable" is the same as "good faith." He said that "reasonable" isn't always a defined term and can't always be specifically defined because a case will always have factual nuances. SENATOR GUESS asked whether it was his opinion that there is enough case law to establish a standard for "good faith." REPRESENTATIVE WEYHRAUCH said yes. JACQUELINE TUPOU added that she reviewed three different cases where "good faith" had been a standard; it was up to the defense to prove that there was no ulterior motive. 8:46:53 AM SENATOR HOLLIS FRENCH said from a patient's point of view, they generally would want a healthcare provider to correct any error that they caused through negligence and not just use the DNR as an "out." REPRESENTATIVE WEYHRAUCH asserted the bill would not let any physician off the hook for negligently causing a terminally ill patient to die before their time. MS. TUPOU added that anesthesiology is not an exact science and too much can often cause a person to "flat-line." She said that would be a qualifying reason for the physician to bring the patient back to life. 8:51:27 AM SENATOR FRENCH asked whether this was an emerging issue in the area of healthcare directives. REPRESENTATIVE WEYHRAUCH said HB 442 was due to an omission in the original bill and healthcare providers recognized the omission late in the process. He said he did not want to introduce HB 442 until he knew that enough research had been done and that it was necessary. SENATOR GUESS said she did not understand the reason the sponsor was hesitant to add "negligence" to the exemptions on page 5, line 16. REPRESENTATIVE WEYHRAUCH explained his resistance was to ensure that the agent and the healthcare provider act in good faith and that they have the comfort level to implement the terms of the advanced healthcare directive. 8:55:35 AM SENATOR GUESS noted that Section 9 doesn't have "good faith" in it anywhere. It says that the immunity doesn't apply under gross negligence or recklessness or intentional actions. The discussion is whether to add negligence and, she said, she still didn't understand the reluctance. SENATOR FRENCH referred to Section 15 and asked the reason for the retroactivity to 2005. MS. TUPOU said that was added in House Health, Education, and Social Services Committee (HESS). They decided that the liability pertaining to the "Healthcare Act," should begin with inception of the Act. 8:57:44 AM JOHN DAWSON, Partner in the law firm Davis Wright Tremaine LLC, representing Providence Anchorage Anesthesia Medical Group, testified. He said the essence of Section 9 is that "it is fundamentally unfair to tie a doctor's hands with a DNR order and then to sue him when his hands have been tied." In the case of mere negligence, there is a patent unfairness in preventing the doctor from giving CPR yet putting him liable for suit. He noted the retroactivity was added in the House Judiciary Committee. SENATOR FRENCH asked for clarification on which House committee made the amendment. MS. TUPOU stood corrected. She said initially it was offered in HESS by Representative Paul Seaton but didn't pass. Representative Max Gruenberg then offered it in the House Judiciary Committee and it was accepted. 9:01:17 AM Senator Gene Therriault joined the meeting. MIKE SCHNEIDER, Attorney, testified that the emotional context of the decisions is a reality. The bill is an institutional disregard of jury trial and the reasonability of juries to decide when people act reasonably, he accused. "That is a path that shouldn't be trodden." It takes rights away from citizens and gives healthcare providers more protection than the rest of the population. He said he was pleased to hear from the sponsor that the intent of the bill is not to excuse the physician from any negligent acts leading up to the need for resuscitative care. 9:04:35 AM CHAIR SEEKINS closed public testimony and held the bill in committee.