05/05/2021 01:00 PM House JUDICIARY

        SB 65-LIABILITY CONSULTING HEALTH CARE PROVIDER                                                                     
                                                                                                                                
1:03:28 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN announced that the first order of business would be                                                                
CS FOR SENATE BILL NO. 65(JUD),  "An Act relating to immunity for                                                               
consulting   physicians,    podiatrists,   osteopaths,   advanced                                                               
practice registered nurses,  physician assistants, chiropractors,                                                               
dentists, optometrists, and pharmacists."   [Before the committee                                                               
was HCS CSSB 65(HSS).]                                                                                                          
                                                                                                                                
1:03:55 PM                                                                                                                    
                                                                                                                                
SENATOR JESSE  KIEHL, Alaska State Legislature,  introduced SB 65                                                               
as prime  sponsor.  He  said that SB 65  is a proposed  tort bill                                                               
pertaining  to  health  care.   He  explained  that  health  care                                                               
providers   regularly  consult   formally  and   informally  with                                                               
colleagues.     He  characterized  the   informal,  uncompensated                                                               
consultations as  "curbside consultations" which take  place both                                                               
in person  and telephonically.   He further qualified  a curbside                                                               
consultation  as  one  in  which there  exists  no  financial  or                                                               
business  relationship  between   providers,  and  the  consulted                                                               
provider  as  having  no  doctor/patient  relationship  with  the                                                               
patient.   He explained that a  case had been brought  before the                                                               
Minnesota  Supreme  Court in  which  it  had  been ruled  that  a                                                               
healthcare provider  who had  no doctor/patient  relationship was                                                               
required  to defend  his/herself  against  a medical  malpractice                                                               
claim.  He stated  that the effect of the ruling  in the case had                                                               
resulted   in   providers   ceasing  to   provide   uncompensated                                                               
consultations   or   reconsidering   whether   to   establish   a                                                               
doctor/patient relationship in such cases.   He suggested that SB
 would limit  liability to the treating  physician or provider.                                                               
He added that SB 65 would  further limit that liability and would                                                               
not  be shifted  [from  a  treating physician]  nor  would it  be                                                               
reduced.                                                                                                                        
                                                                                                                                
1:08:54 PM                                                                                                                    
                                                                                                                                
CATHY   SCHLINGHEYDE,   Staff,   Senator  Kiehl,   Alaska   State                                                               
Legislature, on  behalf of prime  sponsor, presented  a sectional                                                               
analysis during the hearing on  SB 65, [included in the committee                                                               
packet] which read as follows: [original punctuation provided]:                                                                 
                                                                                                                                
     Sec. 1 of the bill creates a new section in AS 09.55:                                                                      
                                                                                                                                
     Sec.  09.55.552(a): Consulting  physicians, osteopaths,                                                                    
     podiatrists,   advanced  practice   registered  nurses,                                                                    
     physician    assistants,    chiropractors,    dentists,                                                                    
     optometrists,  pharmacists,  physical  therapists,  and                                                                    
     occupational therapists are not  liable for providing a                                                                    
     consultation if  they meet a list  of requirements that                                                                    
     establishes the consultant was not compensated and                                                                         
     had no doctor-patient relationship.                                                                                        
                                                                                                                                
     Sec. 09.55.552(b): The health  care provider cannot use                                                                    
     the  consultant's  advice  to  reduce his  or  her  own                                                                    
     liability in a medical malpractice case.                                                                                   
                                                                                                                                
     Sec.  09.55.552(c): Defines  the health  care providers                                                                    
     and health care facilities covered by this bill                                                                            
                                                                                                                                
1:09:38 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN introduced invited testimony.                                                                                      
                                                                                                                                
1:09:49 PM                                                                                                                    
                                                                                                                                
ROBERT CRAIG, Chief Executive Officer,  Alaska Heart and Vascular                                                               
Institute, testified in support of SB  65.  He explained that the                                                               
members  of   the  Alaska  Heart  and   Vascular  Institute  were                                                               
cardiologists  who   remain  on   call  to   treating  physicians                                                               
throughout the  state for uncompensated  consultations pertaining                                                               
to cardiovascular  care.  He  stated that the  institute remained                                                               
committed to  provide timely and  accurate medical  expertise for                                                               
patients  under  another physician's  care  to  aid in  care  and                                                               
transportation  decisions.    He  stated that  the  alternate  to                                                               
uncompensated consultations would be  for the consulted physician                                                               
to instruct  the treating physician  to either refer  the patient                                                               
for  a paid  consultation  or  to transport  the  patient to  the                                                               
consulting  physician,  either  of  which could  delay  care  and                                                               
increase  costs.   He stated  that  the goal  of the  institute's                                                               
physicians  is  to  provide high  quality  and  low-cost  cardiac                                                               
service to the state's healthcare providers.                                                                                    
                                                                                                                                
1:11:39 PM}                                                                                                                   
                                                                                                                                
JACOB  KELLY,   M.D.,  Alaska   Heart  and   Vascular  Institute,                                                               
testified in  support of SB  65.  He stated  that he was  a heart                                                               
failure cardiologist  at the Alaska Heart  and Vascular Institute                                                               
and  had  been  practicing medicine  and  providing  consultation                                                               
during his four years in Alaska.   He explained that requests for                                                               
consultation,  occasionally in  excess  of 20  per day,  occurred                                                               
during all hours  and from all areas of the  state.  He explained                                                               
that physicians calling for consultations  represent a variety of                                                               
different  practitioners who  may  need consultation  to aid  the                                                               
safety and comfort of their  patients.  He explained that, should                                                               
physicians become  wary of the risk  of litigation, inappropriate                                                               
and costly  requests for [patient]  transfers and care  may occur                                                               
for common conditions.   He suggested that  allowing for curbside                                                               
consultation is  helpful to  all fields  of medicine  to increase                                                               
the safety and quality of all local patient care.                                                                               
                                                                                                                                
1:16:04 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE EASTMAN  stated his  support for immunity  for the                                                               
professions  listed  in  the  bill,   and  asked  whether  family                                                               
therapists,   acupuncturists,   ophthalmologists,   and   massage                                                               
therapists, among  others should also receive  immunity should SB
 pass.                                                                                                                        
                                                                                                                                
SENATOR KIEHL  answered that  it had been  considered to  use the                                                               
term "health care  providers," and a more specific  list had been                                                               
determined   to   be   most   appropriate.      He   added   that                                                               
ophthalmologists are  licensed physicians and would  be included.                                                               
He further explained  that the immunity granted  with the passage                                                               
of SB  65 pertained to the  scope of practice, potential  risk to                                                               
patients,   and  the   ability  of   the  treating   health  care                                                               
professional  to independently  evaluate and  analyze the  advice                                                               
that  he/she  is given  [during  a  curbside consultation].    He                                                               
stated  that  the list  had  been  adjusted through  the  hearing                                                               
process and includes professions  that he deemed appropriate, and                                                               
that immunity granted should be  carefully considered when making                                                               
tort reform.                                                                                                                    
                                                                                                                                
1:18:50 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  EASTMAN noted  that  occupational therapists  are                                                               
listed  in the  bill; however,  family  therapists are  not.   He                                                               
recalled that  there had been  a situation in which  a supervisor                                                               
at a youth  detention facility was unable to be  prosecuted for a                                                               
sexual  relationship with  a minor  due to  [the category  of the                                                               
detention officer]  not being included  in the list of  those who                                                               
may be prosecuted.   He asked whether a court  would be likely to                                                               
rule that  the immunity as proposed  in SB 65 would  not apply to                                                               
family therapists.                                                                                                              
                                                                                                                                
1:19:55 PM                                                                                                                    
                                                                                                                                
MS. SCHLINGHEYDE answered  that courts in Alaska  have ruled that                                                               
medical  malpractice cases  are  treated  differently than  other                                                               
cases  of alleged  negligence.   She  referred to  the ruling  in                                                               
Smith  vs. Radecki  in which  it was  established that  a special                                                             
relationship  exists between  a  physician and  a  patient.   She                                                               
further  explained that  other cases  of  alleged negligence  are                                                               
evaluated   on  a   "foreseeability"  test.     She   added  that                                                               
individuals  not  listed in  SB  65  would  still be  subject  to                                                               
potential liability for negligence  under foreseeability and duty                                                               
of care.                                                                                                                        
                                                                                                                                
1:20:46 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  EASTMAN  asked why  a  family  therapist was  not                                                               
included in the list of professions.                                                                                            
                                                                                                                                
1:21:05 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN  offered that the  categories of  professions listed                                                               
in SB  65 specifically relate  to medical malpractice and  that a                                                               
family therapist would never fall into that category.                                                                           
                                                                                                                                
1:21:24 PM                                                                                                                    
                                                                                                                                
SENATOR  KIEHL  explained his  intent  was  to address  liability                                                               
among  physical  health  practitioners   and  not  mental  health                                                               
practitioners,  the  dichotomy  of   which  exists  elsewhere  in                                                               
statute.                                                                                                                        
                                                                                                                                
1:21:49 PM                                                                                                                    
                                                                                                                                
CHAIR  CLAMAN  referred to  a  case  in  the State  of  Minnesota                                                               
[included  in the  committee packet]  entitled "SB  65 Additional                                                               
Document - Warren v. Dinter  Supreme Court of Minnesota April 17,                                                             
2019 (Distributed  by HJUD  Committee)," in  which the  court was                                                               
specific in its ruling that the  case did not pertain to curbside                                                               
consultations.  He asked why  the perception following the ruling                                                               
was that it did pertain to curbside consultations.                                                                              
                                                                                                                                
1:22:22 PM                                                                                                                    
                                                                                                                                
SENATOR KIEHL explained  that, while a dissenting  opinion in the                                                               
ruling did not have precedential  value, the matter of the ruling                                                               
having  no  pertinence  to  the   curbside  consultations  was  a                                                               
controversial one.   He stated that the  ruling having pertinence                                                               
to  cases  in   which  there  did  not   exist  a  doctor/patient                                                               
relationship  likely contributed  to  the  perception that  there                                                               
exists a risk  in consultation when no  such relationship exists.                                                               
He suggested  that HB  65 would  further define  boundaries which                                                               
remained unclear following the ruling in the State of Minnesota.                                                                
                                                                                                                                
1:23:28 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN  postulated that the  ruling in the  Minnesota case,                                                               
including case precedent in Alaska,  had taken into consideration                                                               
the foreseeability  of harm and  he asked  why the ruling  in the                                                               
State  of Minnesota  would have  an effect  different from  those                                                               
upon which the courts in Alaska had already ruled.                                                                              
                                                                                                                                
1:24:09 PM                                                                                                                    
                                                                                                                                
MS.  SCHLINGHEYDE stated  that the  ruling in  Smith vs.  Radecki                                                             
held that a doctor/patient relationship  must exist [to allow for                                                               
litigation  for  malpractice]  and  that footnotes  in  the  case                                                               
address but do  not fully explore fact patterns  which may result                                                               
in the  existence of  a doctor/patient  relationship.   She noted                                                               
that  another case  in  the State  of Rhode  Island  that held  a                                                               
similar ruling to Smith vs.  Radecki did not offer any additional                                                             
clarity on when the doctor/patient relationship exists.                                                                         
                                                                                                                                
1:24:55 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  VANCE  asked  at   what  point  a  doctor/patient                                                               
relationship exists in telehealth consultations.                                                                                
                                                                                                                                
MS. SCHLINGHEYDE answered that  telehealth consultations would be                                                               
categorized the same  as in person visits with the  passage of SB
, and that the question  of malpractice liability exists when a                                                               
provider  consults  another provider.    She  added further  that                                                               
legal  malpractice precedents  existed in  which liability  to an                                                               
attorney  could  occur  despite  a  client  not  having  formally                                                               
retained  the attorney.   She  stated that,  in cases  of medical                                                               
malpractice  liability,  the  precedent of  the  legal  liability                                                               
could be applied similarly to medical malpractice liability.                                                                    
                                                                                                                                
1:26:54 PM                                                                                                                    
                                                                                                                                
SENATOR KIEHL added that SB 65  proposed to broadly define that a                                                               
doctor/patient relationship  shall exist if  a doctor is  paid by                                                               
the patient, and immunity would not apply.                                                                                      
                                                                                                                                
1:27:19 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  CLAMAN recalled,  in reference  to Representative                                                               
Vance's line of questioning, that,  during the COVID-19 pandemic,                                                               
health care  providers had encountered difficulties  in providing                                                               
care  via   telehealth  and  in  establishing   a  doctor/patient                                                               
relationship   due  to   travel   restrictions,  and   telehealth                                                               
consultations  had resulted  in doctor/patient  relationships and                                                               
would  not  be  considered  the curbside  consultation  that  was                                                               
contemplated in SB 65.                                                                                                          
                                                                                                                                
1:28:04 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE   VANCE  asked   whether,  similar   to  attorneys                                                               
providing  consultations pro-bono,  doctors  have an  equivalent,                                                               
uncompensated consulting relationship with certain patients.                                                                    
                                                                                                                                
SENATOR KIEHL stated  that SB 65 pertained  only to uncompensated                                                               
consultations  between health  care  providers and  not to  those                                                               
between physicians and patients.                                                                                                
                                                                                                                                
1:29:40 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  EASTMAN  asked, should  SB  65  pass, what  other                                                               
professions  may be  affected,  such as  immunity for  structural                                                               
engineers such as in the case of a building collapse.                                                                           
                                                                                                                                
SENATOR  KIEHL   answered  that   tort  statutes   treat  medical                                                               
malpractice differently  than other cases  involving malpractice.                                                               
He added that  there exist several court rulings  in Alaska which                                                               
address  medical  malpractice as  separate  from  other forms  of                                                               
malpractice.                                                                                                                    
                                                                                                                                
1:31:18 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN opened public testimony  on HCS CSSB 65(HSS).  After                                                               
ascertaining  that there  was no  one who  wished to  testify, he                                                               
closed public testimony.                                                                                                        
                                                                                                                                
1:32:13 PM                                                                                                                    
                                                                                                                                
The committee took a brief at-ease.                                                                                             
                                                                                                                                
1:32:59 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN announced that HCS CSSB 65(HSS) was held over.