03/26/2014 01:00 PM House JUDICIARY

                                                                                                                                
               HB 250-MEDICAL MALPRACTICE ACTIONS                                                                           
                                                                                                                                
                                                                                                                                
1: 12:35 PM                                                                                                                   
                                                                                                                                
CHAIR KELLER announced that the first order of business would be                                                                
HOUSE  BILL NO.  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."                                                                                                                      
                                                                                                                                
1:13:47 PM                                                                                                                    
                                                                                                                                
DOUG  WOJCIESZAK, Founder  and President,  Sorry Works!,  said he                                                               
works  around  the  country with  doctors,  nurses,  health  care                                                               
insurers, and legal professionals,  teaching them how to disclose                                                               
and,  if necessary,  apologize after  something goes  wrong in  a                                                               
medical setting.   He noted that he has been  doing this for over                                                               
seven years.   In 1998,  he lost  his brother to  medical errors,                                                               
and his  family did not  get disclosure or any  communication, he                                                               
explained.  The family had to  file a lawsuit to get any answers,                                                               
and even  after getting money  and when the liability  was clear,                                                               
the doctors and  the hospital still did not  communicate with the                                                               
family.   He said he  has taken  that experience and  now travels                                                               
around  telling the  medical community  that "if  you don't  want                                                               
someone like  me to  sue you, here's  what you need  to do."   He                                                               
added that he takes people  step-by-step through the process, and                                                               
he  works  with  defense  and plaintiff  counsel,  hospital  risk                                                               
managers, hospital leadership, and others.                                                                                      
                                                                                                                                
1:15:21 PM                                                                                                                    
                                                                                                                                
                                                                                                                                
MR. WOJCIESZAK noted that he has  reviewed HB 250 and has been in                                                               
contact with the  sponsor's staff.  He said about  36 states have                                                               
similar laws,  and he  has seen  that the  laws help  doctors and                                                               
nurses  be  more  comfortable  communicating  with  patients  and                                                               
families if  something goes  wrong.  He  said that,  according to                                                               
defense  and plaintiff  lawyers, the  primary reason  doctors get                                                               
sued   when  something   goes  wrong   is  the   total  lack   of                                                               
communication.   Families feel  abandoned and  left in  the lurch                                                               
because they  want to  hear from  the doctor.   Doctors  will say                                                               
that they  are afraid  to talk  because it  will be  used against                                                               
them in court,  he stated.  Bills, like HB  250, help people feel                                                               
a little  more comfortable and  allow people  like him to  go out                                                               
and have  "the conversation with  hospitals."  The laws  help the                                                               
defense counsel  get a little  more comfortable  allowing doctors                                                               
to communicate.   The big  goal, he  stated, is to  make medicine                                                               
safer.   "When doctors  talk more,  systems get  better, patients                                                               
and  families  are  safer,  and society  is  better  served,"  he                                                               
opined.                                                                                                                         
                                                                                                                                
                                                                                                                                
1:17:37 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG noted that  he has cosponsored the bill,                                                               
and  he asked  Mr. Wojcieszak  if lawyers  are afraid  of getting                                                               
sued for their own malpractice.                                                                                                 
                                                                                                                                
MR. WOJCIESZAK said he has not  heard that question, but his book                                                               
was written  with two defense  attorneys. He said his  message to                                                               
defense counsel  and doctors is  that when something  goes wrong,                                                               
simply  say, "Gosh  Max, I'm  sorry  this happened  to your  mom;                                                               
we're going to review to figure  out what happened and then we'll                                                               
get back to you in due process."                                                                                                
                                                                                                                                
1:19:37 PM                                                                                                                    
                                                                                                                                
MR.  WOJCIESZAK  suggested  there  might  be  a  case  for  legal                                                               
malpractice  if an  attorney  tells a  doctor not  to  talk to  a                                                               
patient  and then  the doctor  gets sued.   He  opined that  many                                                               
doctors  have been  poorly advised  not to  talk after  something                                                               
goes wrong,  "and that's what  leads to  so many lawsuits."   The                                                               
general movement  in the medical  world is  that it is  better to                                                               
talk.  If  the doctor goes too far and  speculates or prematurely                                                               
admits fault, "then  we'll clean that up"  with documentation and                                                               
expert  reviews.   He  said  he has  heard  of  doctors who  say,                                                               
"Sorry, I've killed your mom,"  and then a follow-up review shows                                                               
no error.   Some courts  will consider the comments  as hear-say,                                                               
he stated.                                                                                                                      
                                                                                                                                
1:21:38 PM                                                                                                                    
                                                                                                                                
ANNIE HOLT,  Executive Director, Alaska Physicians  and Surgeons,                                                               
said her organization has 150 members  and supports HB 250.  Over                                                               
30 states have introduced such a  law with the goal of empowering                                                               
the  patient/physician  relationship   and  encouraging  dialogue                                                               
between  the  two,  especially when  there  is  an  unanticipated                                                               
outcome.  Such  outcomes may or may not  be directly attributable                                                               
to the physician's care.  She  noted that a genuine expression of                                                               
sorrow  by the  physician can  be misinterpreted,  and physicians                                                               
are concerned that it can increase  their liability.  In the best                                                               
interest  of  physicians  and their  patients,  this  legislation                                                               
would  support  open  conversations  and  understanding  of  what                                                               
happened without the specter of liability, she stated.                                                                          
                                                                                                                                
1:22:56 PM                                                                                                                    
                                                                                                                                
CHAIR KELLER closed public testimony.                                                                                           
                                                                                                                                
REPRESENTATIVE GRUENBERG  said, "We  had an amendment  that would                                                               
have put language about the civil  rules; you raised a point in a                                                               
conversation  with  [Representative Kurt  Olson]  and  me on  the                                                               
floor.  Your point  was very well taken, and had  I offered it, I                                                               
would have offered it in a  little different form, as a result of                                                               
your conversation."                                                                                                             
                                                                                                                                
1:23:59 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  moved to pass  HB 250 out  of committee                                                               
with  individual recommendations  and accompanying  fiscal notes.                                                               
There being no  objection, CSHB 250(HSS) was reported  out of the                                                               
House Judiciary Standing Committee.