Legislature(1993 - 1994)
02/18/1994 01:15 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 RECOMMENDATIONS 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 COMMITTEE WITH INDIVIDUAL RECOMMENDATIONS AND ZERO 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 ACTION WITNESS REGISTER REP. CYNTHIA TOOHEY Alaska State Legislature Capitol Building, Room 104 Juneau, Alaska 99811 465-4919 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 SHORT TITLE: GET CLEARY ORDERS DISSOLVED OR CHANGED SPONSOR(S): REPRESENTATIVE(S) BARNES,Phillips,Williams,Toohey, Vezey,James,Martin,Foster,Porter,Mulder,Olberg,Green,Bunde, Sanders,Hudson,Larson,Kott,MacLean,Hanley, 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 4NR 02/07/94 2280 (H) DP: HUDSON, MULDER, PORTER 02/07/94 2280 (H) NR: GREEN, WILLIAMS, SITTON, MACKIE 02/07/94 2280 (H) LETTER OF INTENT WITH L&C REPORT 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 business. 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 RECOMMENDATIONS. Number 034 CHAIRMAN PORTER announced the committee would take up HB 323. HB 323 - RELEASE OF CERTAIN DEATH CERTIFICATE INFORMATION 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 committee: "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 file. "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 waste. 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 also. 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 foreign. 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. CSHB 323(JUD) WAS MOVED OUT OF COMMITTEE WITH INDIVIDUAL 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 education. 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. CSHB 319(JUD) WAS MOVED FROM COMMITTEE WITH INDIVIDUAL RECOMMENDATIONS. Number 805 CHAIRMAN PORTER announced the next order of business was HB 292. 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 point. 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 system." 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 report. "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 parameters." 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 REP. NORDLUND, CHAIRMAN PORTER, REP. JAMES and REP. GREEN 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 parameters. 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 amendment. 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 damages. 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 judgement. 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 structure. MS. LOPER interjected that a mediator would be present in structuring this settlement between the defendant and the plaintiff. 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.