Legislature(2013 - 2014)CAPITOL 120
03/24/2014 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB127 | |
| HB250 | |
| SB64 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 64 | TELECONFERENCED | |
| + | HB 250 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 127 | TELECONFERENCED | |
HB 250-MEDICAL MALPRACTICE ACTIONS
CHAIR KELLER announced that the next order of business would be
HB 250, "An Act making an expression of apology, responsibility,
liability, sympathy, commiseration, compassion, or benevolence
by a health care provider inadmissible in a medical malpractice
case; requiring a health care provider to advise a patient or
the patient's legal representative to seek legal advice before
making an agreement with the patient to correct an unanticipated
outcome of medical treatment or care; and amending Rules 402,
407, 408, 409, and 801, Alaska Rules of Evidence."
REPRESENTATIVE GRUENBERG moved to adopt CSHB 250(HSS) 28LS0967\P
as the working document. There being no objections, Version P
was before the committee.
1:35:24 PM
ERIKA O'SULLIVAN, Staff, Representative Kurt Olson, Alaska State
Legislature, offered the following statement:
My named is Erika O'Sullivan, Staff to Representative
Kurt Olson. Before you today is HB 250, "An Act
making an expression of apology, responsibility,
liability, sympathy, commiseration, compassion, or
benevolence by a health care provider inadmissible in
a medical malpractice case; requiring a health care
provider to advise a patient or the patient's legal
representative to seek legal advice before making an
agreement with the patient to correct an unanticipated
outcome of medical treatment or care; and amending
Rules 402, 407, 408, 409, and 801, Alaska Rules of
Evidence." Before I get into the presentation of the
bill, I would like to acknowledge that Mr. Mike
Haugen, the Executive Director of the Alaska State
Medical Association is online, as is Ms. Megan Wallace
from [Legislative Legal Services], and hopefully Mr.
Doug Wojcieszak, the author of Sorry Works, will be
attempting to call in, but he is on the East Coast and
has some prior commitments so we'll see if we can get
him online as well. So they will be available to
testify or answer questions. We'll start by
addressing the intent of the bill and then go into an
explanation of changes. House Bill 250, also known as
the "I'm sorry" bill, would render expressions of
apology or sympathy by a health care provider to a
patient related to an unanticipated outcome of
treatment inadmissible as evidence in a malpractice
case. This is similar to legislation that has passed
in over 30 states. As you saw in your bill packets,
there is a state-by-state breakdown of the legislation
in a document assembled by the American Medical
Association. As addressed in the sponsor statement,
the bill is intended to clear up the gray area which
now exists between apologies and admissions of
neglect, and to improve doctor/patient relationships,
especially in cases ending in a less than favorable
outcome. Unfortunately, health care providers often
cut off communication after adverse events, which can
lead to anger and the perception that there is a lack
of caring, or that a mistake was made even if in
reality no error occurred. It is not negligence but
rather a failure in communication between the provider
and patient that often results in malpractice
lawsuits. This bill will by no means prohibit
malpractice lawsuits, but to quote Bioethicist Arthur
Caplan, whose full interview you saw in your bill
packets, "You can talk about your feelings without
having that held against you or being the trigger to a
lawsuit." This legislation will enable health care
providers to better fulfill their moral and ethical
responsibilities to patients and their families for
expressions of compassion and sympathy without fear of
retribution in the form of a lawsuit. And, I can now
go into an explanation of the changes in Version A to
Version P, if that is what the committee is interested
in. Okay.
1:38:09 PM
So, the changes from the original bill version to the
version you see in front of you, Version P, are as
follows: on page 1, line 1, of the bill title the word
liability was deleted. It was also deleted under
Section 1(a) on page 1, line 12, and under Section
2(1) on page 3, line 6. The sponsor felt that
including the word liability undermined the intent of
the bill and that an expression of liability was in
fact closer to an admission of negligence and should
not necessarily be excluded in the civil case or
arbitration. Under Section 1(a) on page 2, line 14,
subsection (5) was added. And, this subsection was
added with the intent of closing a potential loophole
should an indirect offer to compromise, write off, or
furnish payment occur. Under Section 1(a) page 2,
line 18, subsection (b) was added. And, this
subsection, basically, the sponsor felt this was
necessary to clarify that if a statement prefaced by
or made in conjunction with an admission of negligence
or liability be subject to additional scrutiny and not
necessarily be deemed inadmissible. On page 3, line
7, of the Section 09.55.545, the word "to" was deleted
and "in writing that the patient or patient's legal
representative may" was added. This addition of "in
writing" remedies a potential proof problem; it was
something that was brought forth by co-sponsor
Representative Gruenberg, so this way everyone has
their bases covered, everyone is informed of their
rights, and changing the word "to" to the word "may"
again insured that patients or their representatives
were made aware of their rights but this was not a
directive to seek legal counsel. So again, making
aware versus a directive.
1:40:11 PM
And finally, under Section 4, page 4, line 4, the
CONDITIONAL EFFECT was amended to include Section AS
09.55.545. This was basically a language cleanup
because in the original bill only AS 09.55.544 would
require a 2/3 majority to take effect, and this left
open the possibility that should the bill pass with a
simple majority that one section would be added and
the other section would not. So, this was to ensure
that those sections were added.
1:41:19 PM
REPRESENTATIVE GRUENBERG questioned if there is a technical
difference between an "admission" and a "statement against
interest," and he requested the citation for the two issues in
the Rules of Evidence.
1:42:14 PM
MEGAN WALLACE, Attorney, Legislative Legal Counsel, Legislative
Legal and Research Services, Legislative Affairs Services,
explained that an admission is considered not hearsay under
Alaska Rules of Evidence 801, and a statement against interest
is an exception to the Hearsay Rules under Alaska Rules of
Evidence 804.
1:43:12 PM
REPRESENTATIVE GRUENBERG surmised that located on page 2, lines
[20-22], are expressions of sympathy that are inadmissible, but
if it is legally an admission [of liability] that is admissible.
He suggested the language be changed to "an admission or a
statement against interest," since they are legally two
different [issues].
1:44:24 PM
MS. WALLACE said that HB 250 does not define admission as only
an admission under Alaska Rules of Evidence 801, and she thought
it might clarify whether the statement is construed as an
admission or a statement against interest. She opined that the
legislature can't determine every statement that this rule will
apply to as to whether a court would construe it to be an
admission or just a statement against interest. She said that
admission of liability or negligence is just a general term, and
it was not intentionally meant to be constrained to the
definition of admission by party opponent under Alaska Rules of
Evidence 801.
REPRESENTATIVE GRUENBERG, as co-sponsor, said they would take a
few days to look at this issue, as a sharp lawyer might say he
or she is not offering this as an admission, but a statement
against interest, and that is not the intention of HB 250. He
expressed that he thinks it is a very good bill.
CHAIR KELLER agreed, and he said that the fact that it is law in
over 30 tells us that most of these questions have probably been
vetted many times. "So we shouldn't have a whole lot of trouble
getting the bugs out of it," he added.
1:47:19 PM
REPRESENTATIVE LYNN noted his understanding about a doctor
telling a relative of someone who passed away that they are
sorry for their loss and they have his or her sincerest
sympathy, but how would HB 250 address a doctor saying "I'm
really sorry I left the sponge in your lungs?" He asked if that
would be admissible evidence.
MS. O'SULLIVAN advised that the addition of subsection (b) [page
2, lines 18-22] was attempted to address that concern exactly.
There is precedence in 20 other states where similar subsections
exist to clarify that if an admission of negligence is made in
conjunction with an apology, without expression of benevolence,
that that statement is subject to additional scrutiny.
1:49:10 PM
REPRESENTATIVE GABRIELLE LEDOUX asked for the purpose of HB 250,
because a statement of apology, sympathy, commiseration, or
compassion has nothing to do with a statement of liability. She
questioned why it would be introduced as the plaintiff would not
introduce it to make the doctor look good, "if all you're
talking about is if the doctor said, 'I'm really sorry this
happened.'"
1:51:12 PM
MS. O'SULLIVAN responded that there is a strong precedence for
these bills in other states as members of the medical community
have expressed it feels like there is a gag order on them in
that they cannot communicate effectively with their patients;
they feel hindered by the fear of lawsuits. She opined that HB
250 attempts to get the conversation going and stop lawsuits
before they happen. She then referred to the Journal of Health
& Life Sciences Law contained within each member's packet on
page 133-134, wherein a survey was performed and 37 percent of
respondents said that if there had been an apology or
explanation of what had happened that they would not have sued.
These laws are an important component in the bigger picture of
malpractice reform, and she explained that she has spoken with
doctors and their representatives and they feel HB 250 is
necessary. Ms. O'Sullivan deferred to the Executive Director of
the Alaska State Medical Association [Mike Haugen] to speak in
more detail.
1:52:20 PM
REPRESENTATIVE LEDOUX speculated that [physicians] may be
hamstrung by the actual statute, or they may be hamstrung
because their insurance company gives them strict orders to keep
their mouths shut.
1:55:23 PM
MIKE HAUGEN, Executive Director, Alaska State Medical
Association, stated that the Alaska State Medical Association
supports HB 250. Physicians feel it should lead to improved
communications between patients and physicians, and it should
lessen the chance for miscommunication which results in fear of
litigation, he opined.
1:56:09 PM
CHAIR KELLER announced HB 250 was set aside.
| Document Name | Date/Time | Subjects |
|---|---|---|
| CSHB 127 (JUD) Proposed Amendments D.1 and D.2.pdf |
HJUD 3/24/2014 1:00:00 PM |
HB 127 |
| SB 64 - Bill Versions.zip |
HJUD 3/24/2014 1:00:00 PM |
SB 64 |
| SB 64 - Fiscal Notes.zip |
HJUD 3/24/2014 1:00:00 PM |
SB 64 |
| SB 64 - Support Documents.zip |
HJUD 3/24/2014 1:00:00 PM |
SB 64 |
| SB 64 - Letters of Support-Opposition.zip |
HJUD 3/24/2014 1:00:00 PM |
SB 64 |
| SB 64 Letter of Opposition~Fred Meyer.pdf |
HJUD 3/24/2014 1:00:00 PM |
SB 64 |