Legislature(1993 - 1994)

02/18/1994 01:15 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
               HOUSE JUDICIARY STANDING COMMITTEE                              
                        February 18, 1994                                      
                            1:15 p.m.                                          
  MEMBERS PRESENT                                                              
  Rep. Brian Porter, Chairman                                                  
  Rep. Jeannette James, Vice-Chair                                             
  Rep. Pete Kott                                                               
  Rep. Gail Phillips                                                           
  Rep. Joe Green                                                               
  Rep. Cliff Davidson                                                          
  Rep. Jim Nordlund                                                            
  COMMITTEE CALENDAR                                                           
  HCR 28:   Relating to requesting the Governor to direct the                  
            Attorney General to undertake all available means                  
            to have the partial settlements agreed to by the                   
            state in Cleary v. Smith and the court orders                      
            issued in that case that impose required                           
            conditions of confinement and continued monitoring                 
            and oversight of the correctional system by the                    
            courts dissolved or modified.                                      
            MOVED OUT OF COMMITTEE WITH INDIVIDUAL                             
  HB 323:   "An Act authorizing the Bureau of Vital Statistics                 
            to release certain information for the purpose of                  
            organ and tissue donations."                                       
            CSHB 323(JUD) WAS AMENDED AND MOVED OUT OF                         
            FISCAL NOTES                                                       
  HB 319:   "An Act relating to the training of law                            
            enforcement and corrections officers; to the                       
            establishment of surcharges to be assessed for                     
            violations of certain traffic offenses; creating                   
            the Alaska Peace Standards Training Fund; and                      
            providing for an effective date."                                  
            CSHB 319(JUD) WAS AMENDED AND MOVED OUT OF                         
            COMMITTEE WITH INDIVIDUAL RECOMMENDATIONS                          
  HB 292:   "An act relating to civil actions; amending Alaska                 
            Rules of Civil Procedure 49 and 68; and providing                  
            for an effective date."                                            
            HEARD AND HELD FOR FURTHER CONSIDERATION AND                       
  WITNESS REGISTER                                                             
  REP. CYNTHIA TOOHEY                                                          
  Alaska State Legislature                                                     
  Capitol Building, Room 104                                                   
  Juneau, Alaska  99811                                                        
  POSITION STATEMENT:  Prime Sponsor of HB 323                                 
  JENS SAAKVITNE, Director                                                     
  Life Alaska                                                                  
  P.O. Box 230785                                                              
  Anchorage, Alaska  99523                                                     
  Phone:  562-5333                                                             
  POSITION STATEMENT:  Testified in favor of HB 323                            
  JACK PHELPS, Legislative Aide                                                
  Rep. Pete Kott                                                               
  Alaska State Legislature                                                     
  Capitol Building, Room 409                                                   
  Juneau, Alaska  99811                                                        
  Phone:  465-3777                                                             
  POSITION STATEMENT:  Testified against portions of HB 323                    
  PETER NAKAMURA, MD, MPH                                                      
  Director, Division of Public Health                                          
  Department of Health and Social Services                                     
  P.O. Box 110610                                                              
  Juneau, Alaska  99811                                                        
  Phone:  465-3090                                                             
  POSITION STATEMENT:  Testified in favor of HB 323                            
  LADDIE SHAW, Executive Director                                              
  Alaska Police Standards Council                                              
  P.O. Box 111200                                                              
  Juneau, Alaska  99811                                                        
  Phone:  465-4378                                                             
  POSITION STATEMENT:  Testified in favor of HB 319                            
  DANIELLA LOPER, Committee Counsel                                            
  House Judiciary Committee                                                    
  Alaska State Legislature                                                     
  Capitol Building, Room 118                                                   
  Juneau, Alaska  99811                                                        
  Phone:  465-6841                                                             
  POSITION STATEMENT:  Testified regarding HB 292                              
  PREVIOUS ACTION                                                              
  BILL:  HCR 28                                                                
  SPONSOR(S): REPRESENTATIVE(S)                                                
  JRN-DATE    JRN-PG                     ACTION                                
  01/19/94      2108    (H)   READ THE FIRST TIME/REFERRAL(S)                  
  01/19/94      2108    (H)   JUDICIARY                                        
  01/26/94      2159    (H)   COSPONSOR(S):  HANLEY                            
  02/09/94              (H)   JUD AT 01:15 PM CAPITOL 120                      
  02/09/94              (H)   MINUTE(JUD)                                      
  02/14/94              (H)   JUD AT 01:15 PM CAPITOL 120                      
  02/16/94              (H)   MINUTE(JUD)                                      
  BILL:  HB 323                                                                
  SHORT TITLE: RELEASE OF CERTAIN DEATH CERT. INFO                             
  SPONSOR(S): REPRESENTATIVE(S) TOOHEY                                         
  JRN-DATE    JRN-PG                     ACTION                                
  01/03/94      2011    (H)   PREFILE RELEASED                                 
  01/10/94      2011    (H)   READ THE FIRST TIME/REFERRAL(S)                  
  01/10/94      2011    (H)   HES, JUDICIARY                                   
  02/07/94              (H)   HES AT 03:00 PM CAPITOL 106                      
  02/07/94              (H)   MINUTE(HES)                                      
  02/09/94      2309    (H)   HES RPT  CS(HES) NEW TITLE  7DP                  
                              1DNP 1NR                                         
  02/09/94      2309    (H)   DP:  BUNDE,VEZEY,G.DAVIS,TOOHEY                  
  02/09/94      2309    (H)   DP:  B. DAVIS, NICHOLIA, BRICE                   
  02/09/94      2309    (H)   DNP:  KOTT                                       
  02/09/94      2309    (H)   NR:  OLBERG                                      
  02/09/94      2309    (H)   -2 ZERO FISCAL NOTES (DHSS,                      
                              COURT) 2/9/94                                    
  02/16/94              (H)   JUD AT 01:15 PM CAPITOL 120                      
  BILL:  HB 319                                                                
  SHORT TITLE: ALASKA POLICE STNDS TRAINING FUND                               
  SPONSOR(S): REPRESENTATIVE(S) PHILLIPS,MacLean,Sanders,Kott                  
  JRN-DATE    JRN-PG                     ACTION                                
  01/03/94      2010    (H)   PREFILE RELEASED                                 
  01/10/94      2010    (H)   READ THE FIRST TIME/REFERRAL(S)                  
  01/10/94      2010    (H)   JUDICIARY, FINANCE                               
  01/13/94      2054    (H)   COSPONSOR(S):  SANDERS, KOTT                     
  01/19/94      2113    (H)   COSPONSOR(S):  MACLEAN                           
  01/24/94      2140    (H)   FIRST COSPONSOR: MACLEAN                         
  02/04/94              (H)   JUD AT 01:15 PM CAPITOL 120                      
  02/04/94              (H)   MINUTE(JUD)                                      
  BILL:  HB 292                                                                
  SHORT TITLE: CIVIL LIABILITY                                                 
  SPONSOR(S): LABOR & COMMERCE                                                 
  JRN-DATE    JRN-PG                     ACTION                                
  04/23/93      1459    (H)   READ THE FIRST TIME/REFERRAL(S)                  
  04/23/93      1459    (H)   L&C, JUDICIARY, FINANCE                          
  09/10/93              (H)   L&C AT 09:00 AM CAPITOL 17                       
  11/22/93              (H)   MINUTE(L&C)                                      
  01/27/94              (H)   L&C AT 03:00 PM CAPITOL 17                       
  01/27/94              (H)   MINUTE(L&C)                                      
  02/01/94              (H)   L&C AT 03:00 PM CAPITOL 17                       
  02/01/94              (H)   MINUTE(L&C)                                      
  02/03/94              (H)   L&C AT 03:00 PM CAPITOL 17                       
  02/03/94              (H)   MINUTE(L&C)                                      
  02/07/94      2280    (H)   L&C RPT  CS(L&C) NEW TITLE 3DP                   
  02/07/94      2280    (H)   DP:  HUDSON, MULDER, PORTER                      
  02/07/94      2280    (H)   NR:  GREEN, WILLIAMS, SITTON,                    
  02/07/94      2280    (H)   LETTER OF INTENT WITH L&C                        
  02/07/94      2280    (H)   -ZERO FISCAL NOTE (LAW) 2/7/94                   
  02/16/94              (H)   JUD AT 01:15 PM CAPITOL 120                      
  02/18/94              (H)   JUD AT 01:15 PM CAPITOL 120                      
  ACTION NARRATIVE                                                             
  TAPE 94-24, SIDE A                                                           
  Number 000                                                                   
  The House Judiciary Standing Committee was called to order                   
  at 2:10 p.m., on February 18, 1994.  A quorum was present.                   
  An executive session on HCR 28 was held prior to calling the                 
  Committee to order.  CHAIRMAN PORTER announced that the                      
  committee would take action on HCR 28 as the first order of                  
  HCR 28 - GET CLEARY ORDERS DISSOLVED OR CHANGED                              
  Number 022                                                                   
  REP. PHILLIPS made a motion to move HCR 28 out of committee                  
  with individual recommendations.  Without objection it was                   
  so moved.                                                                    
  HCR 28 WAS MOVED FROM COMMITTEE WITH INDIVIDUAL                              
  Number 034                                                                   
  CHAIRMAN PORTER announced the committee would take up HB
  CSHB 323(JUD) am:  "An Act relating to requests for                          
  anatomical gifts and to the release of certain information                   
  for the purpose of facilitating anatomical gifts."                           
  Number 049                                                                   
  REP. CYNTHIA TOOHEY, Prime Sponsor of HB 323, referred to                    
  the committee substitute (CS) and explained it changed one                   
  word on page 1, line 13, deleting "statistics" and adding                    
  "records."  She gave the following statement to the                          
  "Thank you for the opportunity to discuss HB 323.  For                       
  purposes of presentation and discussion, I would ask that                    
  the committee adopt the CS which all members have in their                   
  "This bill would help facilitate organ and tissue donation.                  
  Over 300 tissue and organ transplants are anticipated this                   
  year.  This includes tendon, bone, tissue, corneal, heart                    
  valve, and bone transplants.  For the families who have                      
  donated the tissue or organs of their loved one, this can                    
  provide great consolation for that family to know one or                     
  several individuals have had quality of life improve because                 
  of the donation.                                                             
  "Currently, statute restricts the release of information                     
  from death certificates in the Bureau of Vital Statistics.                   
  In the case of organ and tissue donations, this may mean                     
  that potential donors are lost due to delay, since time is                   
  of the essence in harvesting the tissue.                                     
  "HB 323 would enable a bank, storage facility, or person who                 
  handles procurement of anatomical gifts to obtain the                        
  necessary information from the Department of Health and                      
  Social Services (DHSS) within a time frame allowing for                      
  successful donation.                                                         
  "The information would be contained:                                         
       1.  On the certificate                                                  
       2.  Collected by the Department for completing the                      
           certificate or,                                                     
       3.  In information from other vital human records.                      
           (The supplemental coroner's report is an example.)                  
  "To assure the most expedient process, obtaining this                        
  information from the medical examiner or the bureau prior to                 
  its officially appearing on the death certificate                            
  necessitates the broader definition.  When a death occurs,                   
  the medical                                                                  
  examiner is one of the first to know.  The pertinent                         
  information would consist of:                                                
       1.  The name of the person who could execute the                        
           anatomical gift.                                                    
       2.  The medical suitability of the potential donation.                  
  "In other words, this information would allow the person                     
  potentially procuring the donation to know:                                  
       1.  If the tissue or organ was healthy.                                 
       2.  Who to contact to obtain permission in a timely                     
           manner to allow successful harvesting.                              
  "The DHSS and the court system are strongly supportive of                    
  this legislation.  It has two zero fiscal notes.  The                        
  proposed CS is technical in nature and consists of changing                  
  one word.  I believe the committee received an information                   
  sheet regarding the change, but I would be happy to address                  
  the proposed change if the committee wishes."                                
  REP. TOOHEY stated that JENS SAAKVITNE from Life, Alaska                     
  (via teleconference), DR. NAKAMURA from DHSS, and CHRIS                      
  CHRISTENSEN from the court system were there to respond to                   
  questions, too.                                                              
  Number 151                                                                   
  JENS SAAKVITNE, Director, Life Alaska, which is an Alaska                    
  based nonprofit tissue bank serving Alaska, testified in                     
  favor of HB 323.  Mr. Saakvitne indicated that in 1993                       
  Alaska had 87 tissue donors and they supplied a little over                  
  200 tissue transplants to the state along with approximately                 
  800 out-of-state, and some of the transplants included 40                    
  corneal transplants, 150 tendons, a heart valve and a lower                  
  leg bone for transplant, along with knee and shoulder                        
  repair.  Mr. Saakvitne said that of the decedents family                     
  Life Alaska has talked to and presented the option of                        
  donation, between 75 and (inaudible) agreed to donation, and                 
  those that agree to donation enter into a two year                           
  bereavement support group.  He concluded that Life Alaska                    
  would make every opportunity to serve the community of                       
  Alaska, both as far as recipient needs and giving whatever                   
  support they can to the decedent's family.                                   
  Number 208                                                                   
  JACK PHELPS, Legislative Aide, Rep. Pete Kott, testified on                  
  behalf of himself in opposition to certain portions of HB
  323.  Mr. Phelps indicated he was not testifying against the                 
  concept of organ donations; however, he shared with the                      
  committee his qualifications for why he wants to speak on                    
  another area of HB 232.  Mr. Phelps explained that he is an                  
  ordained minister, although he's not currently working in                    
  that field, and he spent 15 years of his life as a minister                  
  and was commissioned as a Lt. Colonel in Brigade Chief of                    
  Chaplains in the Alaska State Militia and was appointed by                   
  Governor Cowper to serve on the general staff for two years                  
  as advisor on religious issues.                                              
  MR. PHELPS said that during those 15 years he had a number                   
  of opportunities and the responsibility of dealing with                      
  families of the bereaved, and his concern with HB 323 as                     
  written is that one of its primary effects would be to allow                 
  organ banks or storage facilities direct access to the names                 
  of next of kin within the first 24 hours to ask them to                      
  agree to donate parts of their beloved loved one.  Mr.                       
  Phelps indicated this is an extremely sensitive time for                     
  these people, and it worries him what effect this type of                    
  intrusion could have on their privacy at a time when they                    
  are in a very vulnerable situation.  He said he wanted the                   
  committee to be aware of the fact that in current statute we                 
  require medical personnel to speak to the next of kin and                    
  let them know it is one of their options to donate organs                    
  and other tissues.  He concluded that it is not as if people                 
  are not aware of this option, and it causes him a great deal                 
  of concern to think of organ and tissue bank personnel                       
  contacting people in their time of bereavement.                              
  Number 317                                                                   
  REP. TOOHEY commented that the speaker before her had hit on                 
  what the bill is, exactly; the object of the bill is to                      
  allow tissue procurement to happen within a viable time.                     
  She said if you wait for two or three days the tissue is no                  
  longer viable.  Rep. Toohey asked Mr. Saakvitne to speak to                  
  this issue after hearing testimony from Dr. Nakamura.                        
  Number 328                                                                   
  DR. PETER NAKAMURA, Director, Division of Public Health,                     
  Department of Health and Social Services (DHSS), testified                   
  in support of HB 323.  He said they have had, not only in                    
  the state of Alaska, but across the nation, a great deal of                  
  difficulty in getting enough human tissue for all surgical                   
  replacement needs.  Dr. Nakamura explained that the reason                   
  they have not been able to participate in this program much                  
  in the past is that there is language within our legislation                 
  that doesn't allow the release of information that would                     
  allow the tissue program to have early access to the tissue                  
  in time to salvage the usable tissues.  Dr. Nakamura said HB
  323 allows the state of Alaska and Bureau of Vital                           
  Statistics to release the necessary information to allow                     
  this tissue to be harvested in time.                                         
  Number 364                                                                   
  CHAIRMAN PORTER asked if current state law requires or                       
  allows a medical person that is attendant at the death to                    
  advise the next of kin of the opportunity to donate tissue.                  
  MR. PHELPS responded that the law requires it.                               
  REP. TOOHEY explained that she doesn't think Mr. Phelps is                   
  aware of the time frame, and sometimes getting the                           
  information on the death certificate takes up to four days                   
  or longer.  She said as an emergency room nurse she has                      
  never had the opportunity to tell [the next of kin of]                       
  someone who has died that they need to consider tissue                       
  transplant.  Rep. Toohey said it is not something the                        
  hospital does necessarily, although it is supposed to be                     
  policy, but to her knowledge it has never been done.                         
  Number 399                                                                   
  CHAIRMAN PORTER indicated that the bill would provide that a                 
  tissue facility would be able to have this information and                   
  consequently make a inquiry of the next of kin.  He asked if                 
  that would be generally done in circumstances where there is                 
  a needy recipient, or if it would be done in general terms.                  
  Number 405                                                                   
  MR. SAAKVITNE replied that they do not need to tissue match                  
  and type tissues that way.  There is normally not a specific                 
  recipient that the tissue is designated for, but there is a                  
  waiting list, and there is a sure guarantee that if humanly                  
  possible it would be used for transplant.                                    
  Number 412                                                                   
  REP. KOTT indicated that state law requires hospitals to                     
  inquire about tissue donations, and a policy should already                  
  be in place for hospital personnel.  He asked if next of kin                 
  are listed, and if so, what are the procedures for notifying                 
  the next of kin.                                                             
  Number 429                                                                   
  MR. SAAKVITNE responded that first, there are indeed                         
  statutory requirements for all hospitals to have policies                    
  and procedures that require donation information at the time                 
  of a death, but they are carried out rather infrequently,                    
  and it also doesn't address those individuals that die                       
  outside of a hospital.  He indicated that of 41 families he                  
  spoke with over the last year and a half, 31 of those                        
  families have agreed to some type of donation, and he has                    
  yet to have a family for the request.  Mr. Saakvitne pointed                 
  out the statute says the coroner may release the                             
  information, but is not required to do so, so if they start                  
  receiving complaints from families, the coroner can stop                     
  releasing the information.                                                   
  Number 464                                                                   
  CHAIRMAN PORTER asked how, step by step, it would work.                      
  Number 467                                                                   
  MR. SAAKVITNE replied that the coroner's office would                        
  continue to inform him of coroner's deaths, and they would                   
  make an assessment as far as age and medical suitability.                    
  Next, he or another trained counselor would contact the                      
  family and act as an information resource.  He continued by                  
  saying they go over what decisions will be taking place over                 
  the next few days and inform them there may be an option of                  
  tissue donation, but inform them there is no wrong decision,                 
  and then leave a phone number and leave it to the family to                  
  call back.  Mr. Saakvitne said about half the families                       
  immediately say donation is something they want; another 25                  
  percent call back within a few hours; and the remainder                      
  either don't call at all, or they call for other                             
  information, but decide against donation.                                    
  Number 492                                                                   
  REP. GREEN indicated he had a number of questions and asked,                 
  if they are short of tissue, how many people who might be                    
  potential donors die in the hospital as opposed to                           
  elsewhere?   What is the prime age group for donors?  What                   
  assurances are there that HB 323 won't become a body parts                   
  shop?  How is the program working in other states?  If the                   
  most likely group to provide tissue is the younger                           
  population, what happens if you can't find the next of kin                   
  in a timely manner?  Is it reasonable to expect that you                     
  would receive the information in a timely manner?                            
  Number 533                                                                   
  MR. SAAKVITNE responded that not enough people are made                      
  aware of the tissue donation option.  Although many people                   
  may have a donor card, out of the 87 donors last year, only                  
  four had donor cards that could be located.                                  
  Number 501                                                                   
  DR. NAKAMURA responded, saying as far as the number of                       
  deaths outside a hospital, he couldn't give a figure, but                    
  the major causes of death in the state would be cancer,                      
  heart disease, and accidents.  He continued by saying that                   
  if you go to the healthy population, those under 45, a                       
  disproportionate number die from accidents and violence                      
  outside of hospitals.                                                        
  Number 533                                                                   
  MR. SAAKVITNE indicated that more tissues can be used for                    
  plasma surgery from younger patients, and the overall age                    
  ranks from full term birth to 70, but age 45 or younger,                     
  many more tissues can be used.  He responded in regards to                   
  the body shop question:  of other states that have                           
  incorporated this, about 15 states, they have a coroner                      
  call-in system, and in all of those states it is never                       
  mandated that the coroner has to release the information.                    
  If families start to be abused or complaints come in, then                   
  it becomes the moral obligation of the coroner or                            
  departments of health to clean up their act or shut the                      
  organization down and no longer give out information.                        
  MR. SAAKVITNE said the only state he had personal                            
  involvement with was Colorado.  The only problem he is aware                 
  of is that at times the coroners felt it was extra work and,                 
  once in awhile, viewed them as a minor pain bothering them                   
  for information.  When he left there in 1989, he was unaware                 
  of any complaints from families.                                             
  MR. SAAKVITNE then discussed the time question, and said in                  
  some cases they will not be able to reach the families in                    
  time to harvest tissue.  Currently, there are a lot of cases                 
  where they don't have the chance at all, and HB 323 would                    
  probably double the number of cases where they are able to                   
  offer the families a reasonable donation option in a                         
  reasonable amount of time.                                                   
  Number 593                                                                   
  REP. KOTT suggested that if hospitals were in fact following                 
  the procedures in statute, wouldn't that take care of the                    
  back load?                                                                   
  Number 610                                                                   
  MR. SAAKVITNE indicated that it would help, but would still                  
  not be enough.                                                               
  Number 615                                                                   
  REP. TOOHEY said if there is no immediate need in Alaska for                 
  tissue, it goes to a bank in Seattle and then it is sent                     
  everywhere in the Northwest, so the tissue does not go to                    
  Number 630                                                                   
  MR. SAAKVITNE concurred and said all tissue is held for 30                   
  days on reserve for Alaska; the exception is corneas, which                  
  have to be used within five days.  There are certain tissues                 
  that are used 100 percent of the time in Alaska, such as                     
  tendons, but other tissues, such as heart valves, get used                   
  in the Northwest.                                                            
  Number 657                                                                   
  REP. KOTT asked Mr. Saakvitne what he was doing to ensure                    
  that he was not violating a person's religious beliefs.                      
  Number 665                                                                   
  MR. SAAKVITNE responded there are no major religions that                    
  are against organ or tissue donation; there are some                         
  cultural beliefs with the Gypsies and certain American                       
  Indian tribes, but no religious beliefs per se.  He said,                    
  beyond that, they never try and talk a family into it.  They                 
  simply inform them they have several options and donations                   
  is one of them, and there is no wrong decision.                              
  Number 670                                                                   
  REP. KOTT said if an individual was to carry a card at the                   
  time of death, indicating they did not want to be a donor,                   
  what would the subsequent action be.                                         
  Number 673                                                                   
  MR. SAAKVITNE replied that they would never contact the                      
  family about donation if that was the case.                                  
  Number 675                                                                   
  REP. GREEN asked if Alaska was considered an importer or                     
  exporter of tissues.                                                         
  Number 683                                                                   
  MR. SAAKVITNE responded that Alaska is an exporter of most                   
  tissues, but with certain things, such as corneas and                        
  tendons, we become importers.  With heart valves, we are an                  
  exporter.  He noted that within the next six months,                         
  Providence Hospital is going to start transplanting heart                    
  valves, rather than sending patients to Portland, and at                     
  that point Alaska will become an importer of heart valves                    
  REP. GREEN asked what the rejection rate is for tissue.                      
  Number 701                                                                   
  MR. SAAKVITNE said just about all the tissue they are                        
  transplanting does not have blood vessels, which reduces                     
  rejection by about 95 percent.  Most of the other five                       
  percent is taken care of by freezing or freeze drying, which                 
  tends to destroy the immunological identity of tissues so                    
  when they are transplanted they are not recognized as                        
  REP. PHILLIPS moved to adopt the committee substitute.                       
  Hearing no objection, it was so moved.                                       
  Number 720                                                                   
  REP. PHILLIPS moved that the committee move CSHB 323 out of                  
  committee with individual recommendations and zero fiscal                    
  notes. Hearing no objection, it was so ordered.                              
  RECOMMENDATIONS AND ZERO FISCAL NOTES                                        
  Number 738                                                                   
  CHAIRMAN PORTER indicated the next order of business was                     
  revisiting HB 319.                                                           
  HB 319 - ALASKA PEACE STANDARDS TRAINING FUND                                
  Number 738                                                                   
  REP. GAIL PHILLIPS, Prime Sponsor of HB 319, indicated that                  
  the bill was held over from the last meeting until the issue                 
  of collection of the funds could be resolved.  She asked                     
  Laddie Shaw to comment on that.                                              
  Number 742                                                                   
  LADDIE SHAW, Executive Director, Alaska Peace Standard's                     
  Council, testified that they have resolved the collections                   
  issue and he was available to answer questions.                              
  Number 751                                                                   
  CHAIRMAN PORTER indicated there was some discussion about                    
  the difference between the municipalities that have their                    
  own traffic codes as opposed to others, and asked if Mr.                     
  Shaw saw any problems there.                                                 
  Number 754                                                                   
  MR. SHAW replied, "None whatsoever."  He indicated he talked                 
  to some municipalities that do collect on municipal code,                    
  and with the chiefs of police and finance, and they said                     
  collection would be pretty basic to deal with.  They would                   
  collect it every three months and write a check to the State                 
  of Alaska.                                                                   
  Number 758                                                                   
  REP. JAMES indicated she wanted to reinstate her interest in                 
  the funds for education to be considered for education of                    
  auxiliary police forces that are maybe on a volunteer basis                  
  and will not now be able to because of no available                          
  Number 764                                                                   
  CHAIRMAN PORTER responded that the training that would be                    
  made available with these funds is for in-service kinds of                   
  training, just the kind auxiliary and reserve police forces                  
  need and can attend, and certainly would be in the purview                   
  and benefit from HB 319.                                                     
  Number 790                                                                   
  REP. GREEN moved and asked unanimous consent to pass HB 319                  
  out of committee as amended, with individual recommendations                 
  and with accompanying fiscal note.  Hearing no objection, it                 
  was so moved.                                                                
  Number 805                                                                   
  CHAIRMAN PORTER announced the next order of business was HB
  HB 292 - CIVIL LIABILITY                                                     
  CSHB 292(JUD):  "An Act relating to civil actions; amending                  
  Alaska Rules of Civil Procedure 16.1, 26, 49, 68, and 82;                    
  and providing for an effective date."                                        
  Number 805                                                                   
  CHAIRMAN PORTER announced the next order of business was                     
  HB 292, relating to civil court reform.  He noted that legal                 
  counsel to the committee was prepared to review numbered                     
  amendments and that all members should have these numbered                   
  amendments.  He said considerable public testimony was given                 
  in the Labor and Commerce Committee.  He suggested bringing                  
  the committee up to speed by going through amendments                        
  adopted by the Labor and Commerce Committee.  Chairman                       
  Porter introduced Daniella Loper.                                            
  Number 807                                                                   
  DANIELLA LOPER, Legal Counsel, House Judiciary Committee,                    
  began with Amendment 1.  She stated the intent behind                        
  Amendment 1 concerned a case from 1990, Lake v. Construction                 
  Machinery, which involved an employee injured in the course                  
  of his employment who brought damages against several third                  
  parties.  These third parties asserted as a partial defense                  
  that the plaintiff's employer was negligent.                                 
  TAPE 94-24, SIDE B                                                           
  Number 000                                                                   
  DANIELLA LOPER continued her discussion of Amendment 1:                      
  Amendment 1 codifies intent so that "basically we are going                  
  to go by, on a percentage of fault basis; and so,                            
  tortfeasors should not be held responsible for the                           
  negligence of an employer, and to this extent this act is                    
  intended to overrule the case of Lake v. Construction                        
  Machinery."  She referred to page 10, line 6, of the bill                    
  which refers to  16 regarding where the percentage at fault                  
  should be allocated and noted that after "other persons" the                 
  phrase "including an employer" was put in to clarify the                     
  Number 038                                                                   
  CHAIRMAN PORTER cited a 1988 initiative which was passed                     
  that indicated that as a result of the process of our                        
  initiative, responsibility should be apportioned for tort                    
  liability, proportionately.  In other words, if there were                   
  four people who contributed to the responsibility of a                       
  liability for an injury or property damage or something                      
  similar, the court should apportion by whatever percentage                   
  they determine is correct the responsibility among these                     
  four people.  The wording of the initiative was such that it                 
  said "parties to the suit" instead of "all parties                           
  responsible."  Consequently, what was discovered was that if                 
  you named three out of the four people in this hypothetical                  
  situation, then that's all there would be to apportion the                   
  responsibility between... because you didn't name this other                 
  person and, consequently, he wasn't a party to the suit.                     
  The specific wording of the initiative was such that there                   
  was a loophole.  This is one of the things that is being                     
  used to close the loophole.                                                  
  CHAIRMAN PORTER entertained a motion on Amendment 1.                         
  Number 086                                                                   
  REP. PHILLIPS moved Amendment 1.                                             
  CHAIRMAN PORTER welcomed discussion.                                         
  Number 108                                                                   
  REP. NORDLUND inquired about the case cited and asked if it                  
  was a Supreme Court decision.                                                
  Number 112                                                                   
  MS. LOPER replied that it was.                                               
  REP. NORDLUND asked for confirmation that the committee was                  
  not making a decision on this specific resolution involving                  
  the facts of the particular case.  He noted that he was                      
  unfamiliar with the case and was uncomfortable voting on an                  
  amendment involving a case where the facts and circumstances                 
  were unknown to him.                                                         
  MS. LOPER requested clarification of Rep. Nordlund's wish --                 
  an explanation of the case.                                                  
  MS. LOPER explained that copies of the brief were in the                     
  packet.  She explained the employee injury case further.                     
  She said an employee was hurt on the job and was compensated                 
  by workman's compensation by the employer and wanted to                      
  pursue litigation against the machinery's manufacturer,                      
  Construction Machinery.  She named several third parties in                  
  the suit.  Ms. Loper referred to the third parties and said                  
  that the employer had a certain percentage of fault.  She                    
  asked, "Why should the rest of us pay 100% when the employer                 
  has a percentage of fault?"                                                  
  MS. LOPER continued, "And so... the trial judge ruled that                   
  the employer's fault should be taken into consideration,                     
  along with the rest of the third parties.  They appealed.                    
  It went up to the Supreme Court, and the Supreme Court took                  
  a look at the statute, at 91780, which was part of the                       
  initiative, and what the voters had voted on, which was a                    
  percentage of fault basis.  But the court system is sort of                  
  strict on the way they look at it.  Half of the court views                  
  this statute as still joint and several liability.  The                      
  other half view it as a percentage at fault.  And because                    
  they say that the intent of this legislation is not very                     
  clear, and they didn't want to override the Workers'                         
  Compensation Act, and so basically what they have done is                    
  said, `We're not going to take a look at the employer's                      
  fault in this.'  And so, since we are clarifying that in HB
  292, and clarifying exactly what the initiative was about,                   
  and what the voters have voted on, and that was a percentage                 
  of fault basis, we are saying that, now we're making this                    
  legislation clear, with clear intent.  And so, therefore, if                 
  an employer was at fault, we're going to bring it in.                        
  Because the rest of the third parties shouldn't be held                      
  accountable for that percentage... And so that is why in                     
  this amendment we are saying that we're going to overrule                    
  the case of Lake v. Construction Machinery; we are making it                 
  clear that this is a percentage of fault basis."                             
  REP. NORDLUND asked for clarification of effect on damaged                   
  individuals in this particular case upon adopting the                        
  amendment.  He was told there would be none.                                 
  Number 188                                                                   
  REPRESENTATIVE PHILLIPS inquired, "Mr. Chairman, in view of                  
  the fact that this is a paragraph in the findings, is the                    
  other portion of the amendment that's made on page 10...                     
  that one phrase then, clarifies?"  She was told, "Yes, it                    
  would clarify how the law needed to be changed."                             
  Number 196                                                                   
  Amendment 1 was adopted with no objection.                                   
  Number 243                                                                   
  CHAIRMAN PORTER raised discussion of Amendment 2.                            
  Number 252                                                                   
  MS. LOPER explained Amendment 2.  "Again, we're taking... a                  
  look at the findings and purposes section that is on page 3,                 
  line 4.  This particular section deals with asking the                       
  Division of Insurance to compile useful information and                      
  report back to the legislature exactly how HB 292 is going                   
  to affect the civil justice system and the insurance                         
  MS. LOPER continued, "And so, therefore, we deleted the                      
  phrase `[victims and where the disproportionate amount of                    
  compensation dollars is absorbed by the system]' and deleted                 
  health care, as well, because we're looking at the general                   
  overall scope of the insurance systems, not just the health                  
  care industry.  And so we looked at the language                             
  compensation dollars as absorbed by the system.  We felt                     
  that the language was very ambiguous and reflected -- and we                 
  wanted to reflect a much more precise language and simply                    
  just put residents of the state.  So it would be reading,                    
  basically, `accumulate additional information concerning the                 
  cost to society of the civil justice system as it is                         
  presently constituted by having the Division of Insurance                    
  compile useful information and present a report to the                       
  legislature.  This information is necessary to determine                     
  whether the civil justice and insurance systems as they are                  
  presently constituted are fairly serving the residents of                    
  the state.'  Which is much more to clarify...                                
  "And then, in order to reflect the same issue, we looked at                  
  page 15, just to clean up shop on line 31, and as you can                    
  see, the word `report'... and it's mentioned in another                      
  issue, and that is the medical practice parameters report,                   
  and that was just to clarify -- it's the civil justice                       
  "And, basically, what  35 does is, it just simply implements                 
  this issue that we're stating in the findings and facts.  We                 
  clearly state it in the bill now that the Division of                        
  Insurance shall compile information.  And then, as you can                   
  see on the third, basically the fourth issue on this                         
  amendment... to determine if the Civil Justice System and                    
  the Insurance System in the state are fairly serving the                     
  residents of the state... our findings and intent are going                  
  to mirror exactly what we want to implement in the bill."                    
  Number 283                                                                   
  REP. PHILLIPS moved that Amendment 2 be adopted.                             
  CHAIRMAN PORTER stated that Amendment 2 had been moved and                   
  asked for discussion.  An inquiry followed concerning                        
  whether the Division of Insurance would be asked to provide                  
  information at the conclusion of the process concerning the                  
  effect on rates.                                                             
  MS. LOPER responded that this issue makes the bill                           
  constitutional.  She said, "The courts have always looked at                 
  this and seen the state's interest in maintaining reasonable                 
  liability insurance...  This is economic legislation...                      
  They try and take a look at the equal protection... and the                  
  due process challenges.  And this is basically what makes                    
  the cap on damages constitutional.  Because the state is                     
  legitimately interested in lowering insurance rates, that                    
  connects it all."                                                            
  CHAIRMAN PORTER asked if there was any objection to                          
  Amendment 2.  There being none, the amendment was adopted.                   
  Number 307                                                                   
  MS. LOPER discussed Amendment 3 concerning medical practice                  
  parameters.  She said, "They've completely removed the                       
  language that is in the bill on page 3, and as you can see,                  
  we've proposed new language.  For some background                            
  information, we would be one of the only three states in the                 
  Union to implement practice parameters.  This clearly will                   
  be very significant in lowering insurance rates."                            
  Number 334                                                                   
  REP. PHILLIPS requested a legal definition of "practice                      
  Number 339                                                                   
  MS. LOPER responded that practice parameters defines a                       
  physician's medical treatment in certain instances.  The                     
  State Medical Board will develop blanket practice                            
  parameters, minimum standards physicians must follow.  This                  
  will decrease malpractice suits.                                             
  Number 355                                                                   
  CHAIRMAN PORTER added that the section that was had in the                   
  bill was a little presumptuous.  He said rather than be                      
  presumptuous, maybe we ought to make sure that the medical                   
  profession says that this is going to do what we think it's                  
  going to do.  The presumption is that medical practice                       
  parameters will reduce defensive medicine.  Defensive                        
  medicine is something that's come to pass because of                         
  malpractice exposure where doctors feel required to give                     
  tests so as to preclude somebody coming back to them saying                  
  that they failed to... omitted a test that could have                        
  resulted in saving a life.  That has driven up the cost of                   
  medical insurance and health care costs.  Chairman Porter                    
  said the presumption is that practice parameters                             
  establishing what tests should be given under certain                        
  circumstances or symptoms will reduce the requirement for                    
  defensive practice.                                                          
  Numbers 392 - 413                                                            
  discussed the medical parameters and the way the medical                     
  community would respond to them.                                             
  CHAIRMAN PORTER stated that the medical community was a                      
  little happier with the newer version of the bill containing                 
  the parameters.                                                              
  There was further general discussion concerning the possible                 
  "stickiness" of establishing guidelines or practice                          
  REP. GREEN expressed support for the amendment.  Possible                    
  problems concerning language and numbering were discussed.                   
  Number 433                                                                   
  MS. LOPER directed questions to bill drafters.                               
  CHAIRMAN PORTER suggested that the amendment be passed and                   
  have the drafter appropriately number it.                                    
  CHAIRMAN PORTER moved that Amendment 3 be adopted.  There                    
  being no objections, Amendment 3 was adopted.                                
  Number 460                                                                   
  MS. LOPER discussed Amendment 4.  She explained Amendment 4                  
  clarified the Statute of Limitations on health care                          
  providers did not conflict with the time period in the                       
  Statute of Repose.                                                           
  Number 477                                                                   
  REP. PHILLIPS moved Amendment 4.  There being no objection,                  
  Amendment 4 was adopted.                                                     
  Number 481                                                                   
  MS. LOPER discussed Amendment 5.  She said the intent of the                 
  amendment was to refer to injury or death as an accident.                    
  She continued discussion and explanation of the amendment.                   
  Number 483                                                                   
  CHAIRMAN PORTER remarked that Amendment 5 covers a loophole.                 
  Number 541                                                                   
  Amendment 5 was moved by REP. JAMES.  There being no                         
  objection, Amendment 5 was adopted.                                          
  Number 553                                                                   
  MS. LOPER began to discuss Amendment 6.   Discussion and                     
  clarification amongst the representatives followed.                          
  CHAIRMAN PORTER explained that "in the existing law, there                   
  is a $500,000 cap on noneconomic damages.  There is an                       
  exception to that that says you can exceed it if there is                    
  disfigurement or severe physical impairment.  This is the                    
  loophole in the $500,000 cap...  With the idea of having                     
  reasonable caps, we have taken the $500,000, left that in                    
  place, and said, `Okay, we'll recognize that there's                         
  something over and above that, we'll cap it at $750,000, and                 
  we'll define what severe physical impairment is.'  And                       
  that's what this does...."  He noted that though such a                      
  measure might be viewed as "draconian," it was a far more                    
  generous cap than others being tendered in other tort reform                 
  bills across the country.                                                    
  Number 728                                                                   
  REP. NORDLUND moved that Amendment 6 be adopted.  Amendment                  
  6 was adopted with the understanding that necessary clerical                 
  and numerical modifications would be made in the text of the                 
  Number 735                                                                   
  MS. LOPER presented Amendment 7.  She said a victim of any                   
  felony, not just a Class A or unclassified felony, shall be                  
  exempt from any caps on damages.  She said the law, as                       
  presently constituted, holds a $500,000 cap on noneconomic                   
  Number 745                                                                   
  CHAIRMAN PORTER stated that by adopting the amendment, it                    
  will allow victims of felonies to not have the caps on their                 
  potential recovery.                                                          
  Number 766                                                                   
  REP. JAMES moved that Amendment 7 be adopted.                                
  Number 779                                                                   
  REP. NORDLUND raised the issue of parity, asking for insight                 
  on the rationale behind the section.  He said, "From the                     
  standpoint of an injured party, if you sustain noneconomic                   
  damages, what difference does it make if you sustained the                   
  damages by a person who committed a felony or a person who                   
  didn't commit a felony?  He said he didn't see why                           
  additional awards would be made to somebody just because it                  
  was done in a crime situation."                                              
  CHAIRMAN PORTER replied, "I think it recognizes the notion                   
  that in many cases, accidents are just that.  While there is                 
  somebody responsible for them, it is not through an                          
  intentional act -- no one ever considered that they would be                 
  in a position of having injured someone.  In most felony                     
  cases, or all felony cases, there is an intent to commit the                 
  crime and there is an inherent recognition that there is a                   
  potential for harming someone."                                              
  Number 813                                                                   
  After general discussion, Amendment 7 was adopted.                           
  Number 815                                                                   
  MS. LOPER presented Amendment 8, dealing with periodic                       
  payments.  She said the bill would allow either party to                     
  choose the periodic payment schedule by merely placing a                     
  threshold of $50,000 before a party can opt to go on a                       
  periodic payment schedule.                                                   
  Number 829                                                                   
  There being no objection, Amendment 8 was adopted.                           
  Number 831                                                                   
  MS. LOPER presented Amendment 9.  She said the parties shall                 
  submit to the court a proposal containing the periodic                       
  payment schedule in order to be included in the court's                      
  CHAIRMAN PORTER clarified that this section was suggested by                 
  the court system to cut down on the court time.  The bill                    
  provides that either the defendant or the plaintiff can                      
  elect periodic payments.                                                     
  TAPE 94-25, SIDE A                                                           
  Number 000 - 196                                                             
  CHAIRMAN PORTER presented an explanation of the amendment's                  
  language and rationale.  He explained it is protection for                   
  the injured party.  It is there to guarantee these payments.                 
  Number 220 - 316                                                             
  CHAIRMAN PORTER suggested the committee address Amendment 9                  
  at greater length on the following Monday.                                   
  Discussion continued, with REP. NORDLUND expressing both                     
  support for the intent of the bill but concern that the                      
  settlements would be structured out of the court and the                     
  plaintiff would not be able to participate in that                           
  MS. LOPER interjected that a mediator would be present in                    
  structuring this settlement between the defendant and the                    
  Number 317                                                                   
  CHAIRMAN PORTER proposed that the committee hear testimony                   
  the following Monday and continue reviewing the amendments.                  
  This was acceptable to committee members.                                    
  There being no further business, the meeting was adjourned                   
  at 3:45 p.m.                                                                 

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