Legislature(2005 - 2006)BUTROVICH 205
05/03/2006 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB442 | |
| HB190 | |
| HB322 | |
| HB422 | |
| HB190 | |
| SJR17 | |
| HJR9 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 442 | TELECONFERENCED | |
| += | HB 190 | TELECONFERENCED | |
| + | HB 322 | TELECONFERENCED | |
| += | HJR 9 | TELECONFERENCED | |
| + | SJR 17 | TELECONFERENCED | |
HB 442-HEALTH CARE DECISIONS
8:39:06 AM
CHAIR RALPH SEEKINS announced CSHB 442(JUD) to be up for
consideration.
REPRESENTATIVE BRUCE WEYHRAUCH offered to answer questions for
the committee.
CHAIR SEEKINS informed him that previous testimony from an
attorney representing the Alaska Trial Lawyers Association
suggested that the committee add the word "negligence" on page
5, line 16 just before the words "gross negligence." He asked
Representative Weyhrauch to comment.
REPRESENTATIVE WEYHRAUCH responded that the bill already
replaces the words "reasonable" with "good faith." Part of the
reason for that is because the family is usually in a highly
emotional state when the physician is giving them options for
the patient, while recognizing that the patient is terminally
ill. The patient has already communicated their desire to their
"agent" that there be no extraordinary measures taken to keep
them alive. Often family members insist that every conceivable
measure be taken and so the physician and the agent need to have
that good faith reliance that the advanced healthcare directive
has been specific and legally executed.
The intent of the bill is not to relieve anyone from liability,
it is to ensure that the healthcare provider operate in a good
faith manner when making decisions.
8:43:48 AM
SENATOR GRETCHEN GUESS recognized that there is not a working
definition of "good faith" in statute and yet there is a working
definition of "reasonable."
REPRESENTATIVE WEYHRAUCH responded that the working definition
of "reasonable" is the same as "good faith." He said that
"reasonable" isn't always a defined term and can't always be
specifically defined because a case will always have factual
nuances.
SENATOR GUESS asked whether it was his opinion that there is
enough case law to establish a standard for "good faith."
REPRESENTATIVE WEYHRAUCH said yes.
JACQUELINE TUPOU added that she reviewed three different cases
where "good faith" had been a standard; it was up to the defense
to prove that there was no ulterior motive.
8:46:53 AM
SENATOR HOLLIS FRENCH said from a patient's point of view, they
generally would want a healthcare provider to correct any error
that they caused through negligence and not just use the DNR as
an "out."
REPRESENTATIVE WEYHRAUCH asserted the bill would not let any
physician off the hook for negligently causing a terminally ill
patient to die before their time.
MS. TUPOU added that anesthesiology is not an exact science and
too much can often cause a person to "flat-line." She said that
would be a qualifying reason for the physician to bring the
patient back to life.
8:51:27 AM
SENATOR FRENCH asked whether this was an emerging issue in the
area of healthcare directives.
REPRESENTATIVE WEYHRAUCH said HB 442 was due to an omission in
the original bill and healthcare providers recognized the
omission late in the process. He said he did not want to
introduce HB 442 until he knew that enough research had been
done and that it was necessary.
SENATOR GUESS said she did not understand the reason the sponsor
was hesitant to add "negligence" to the exemptions on page 5,
line 16.
REPRESENTATIVE WEYHRAUCH explained his resistance was to ensure
that the agent and the healthcare provider act in good faith and
that they have the comfort level to implement the terms of the
advanced healthcare directive.
8:55:35 AM
SENATOR GUESS noted that Section 9 doesn't have "good faith" in
it anywhere. It says that the immunity doesn't apply under gross
negligence or recklessness or intentional actions. The
discussion is whether to add negligence and, she said, she still
didn't understand the reluctance.
SENATOR FRENCH referred to Section 15 and asked the reason for
the retroactivity to 2005.
MS. TUPOU said that was added in House Health, Education, and
Social Services Committee (HESS). They decided that the
liability pertaining to the "Healthcare Act," should begin with
inception of the Act.
8:57:44 AM
JOHN DAWSON, Partner in the law firm Davis Wright Tremaine LLC,
representing Providence Anchorage Anesthesia Medical Group,
testified. He said the essence of Section 9 is that "it is
fundamentally unfair to tie a doctor's hands with a DNR order
and then to sue him when his hands have been tied." In the case
of mere negligence, there is a patent unfairness in preventing
the doctor from giving CPR yet putting him liable for suit. He
noted the retroactivity was added in the House Judiciary
Committee.
SENATOR FRENCH asked for clarification on which House committee
made the amendment.
MS. TUPOU stood corrected. She said initially it was offered in
HESS by Representative Paul Seaton but didn't pass.
Representative Max Gruenberg then offered it in the House
Judiciary Committee and it was accepted.
9:01:17 AM
Senator Gene Therriault joined the meeting.
MIKE SCHNEIDER, Attorney, testified that the emotional context
of the decisions is a reality. The bill is an institutional
disregard of jury trial and the reasonability of juries to
decide when people act reasonably, he accused. "That is a path
that shouldn't be trodden." It takes rights away from citizens
and gives healthcare providers more protection than the rest of
the population. He said he was pleased to hear from the sponsor
that the intent of the bill is not to excuse the physician from
any negligent acts leading up to the need for resuscitative
care.
9:04:35 AM
CHAIR SEEKINS closed public testimony and held the bill in
committee.
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