02/16/2021 01:30 PM Senate HEALTH & SOCIAL SERVICES

        SB 65-LIABILITY CONSULTING HEALTH CARE PROVIDER                                                                     
                                                                                                                                
1:31:39 PM                                                                                                                    
CHAIR WILSON  announced the  consideration of  SENATE BILL  NO. 65                                                              
"An   Act  relating   to  immunity   for  consulting   physicians,                                                              
podiatrists,  osteopaths,  advanced  practice  registered  nurses,                                                              
physician  assistants, dentists,  optometrists, and  pharmacists."                                                              
He stated  his intent  to hear an  overview of  the bill  and take                                                              
testimony  and  hold  the  bill   for  further  consideration.  He                                                              
invited sponsor Senator Kiehl and his staff to the table.                                                                       
                                                                                                                                
1:32:13 PM                                                                                                                    
SENATOR  JESSE KIEHL,  Alaska State  Legislature, Juneau,  Alaska,                                                              
Sponsor of SB 65, introduced himself.                                                                                           
                                                                                                                                
1:32:29 PM                                                                                                                    
CJ   HARRELL,   Intern,   Senator  Jesse   Kiehl,   Alaska   State                                                              
Legislature,  Juneau,  Alaska, stated  that  in Alaska  and  other                                                              
states,  healthcare   providers  will   seek  the  knowledge   and                                                              
expertise   of  fellow   medical   professionals   to  help   them                                                              
understand how to  help their patients in an  effective and timely                                                              
manner. These conversations  can be an official  consultation, but                                                              
more  often than  not, medical  professionals will  have what  are                                                              
called   curbside  consultations.   This  is   when  a   patient's                                                              
healthcare  provider has an  uncompensated, informal  consultation                                                              
with  another  medical  professional.   These  consulting  medical                                                              
professionals  are   often  specialists   and  do  not   have  any                                                              
relationship with the  patient under discussion. It  is a fast and                                                              
effective  way  of sharing  knowledge  and  expertise  and is  the                                                              
backbone  of   medical  care.  Two   years  ago  in   Minnesota  a                                                              
healthcare  provider who  had  no relationship  to  a patient  was                                                              
forced to  defend themselves against  a civil liability  case. The                                                              
fear is that by  not protecting those who have  no relationship to                                                              
a  patient and  are  sharing their  expertise  through a  curbside                                                              
consultation  providers  will no  longer feel  comfortable  aiding                                                              
fellow  healthcare  providers  in  that  way.  SB  65  will  allow                                                              
curbside consultations  to continue, but without  the potential to                                                              
become subject  to civil  liability for a  patient with  whom they                                                              
have no actual relationship.                                                                                                    
                                                                                                                                
1:33:59 PM                                                                                                                    
SENATOR BEGICH  commented that there  had been good  conversations                                                              
last year about  a similar bill. He sees that most  of the changes                                                              
were incorporated in  this version of the bill. He  noted he spoke                                                              
to Senator Kiehl  a bit about the telehealth issues.  Now that the                                                              
emergency  order  which  extended  telehealth is  gone,  he  asked                                                              
Senator  Kiehl if  the  bill has  any relationship  to  telehealth                                                              
that could be explored.                                                                                                         
                                                                                                                                
SENATOR KIEHL replied  he doesn't see a hook  to telehealth, which                                                              
is  generally  direct  patient   care  and  if  not  face-to-face,                                                              
camera-to-camera,   which   does   establish  a   doctor   patient                                                              
relationship.  There   is  a  duty  of  care.   Curbside  consults                                                              
frequently  involve  doctors  on  the phone,  but  the  consulting                                                              
doctor is not seeing the patient.                                                                                               
                                                                                                                                
SENATOR BEGICH  clarified that in  a three-person  scenario, there                                                              
is  a  curbside  consult,  the doctor  who  is  dealing  with  the                                                              
patient, and the patient.                                                                                                       
                                                                                                                                
SENATOR  KIEHL  responded  that  in that  scenario,  the  treating                                                              
healthcare  professional  may  seek  a  curbside  consult  with  a                                                              
colleague.  This bill protects  that curbside  consult as  long as                                                              
the  consulting physician  is  not laying  hands  on the  patient,                                                              
even virtually. Therefore, they would not be liable.                                                                            
                                                                                                                                
SENATOR BEGICH  asked what  the estimated cost  is to  Alaskans if                                                              
this  bill  did  not  pass, in  terms  of  things  like  liability                                                              
insurance. He asked if that is what is driving the bill.                                                                        
                                                                                                                                
SENATOR KIEHL  answered that cost of  liability is one  of the key                                                              
drivers.  The financial  cost would  be difficult  to figure  out.                                                              
The  potential   for  increased   medical  malpractice   costs  is                                                              
significant,  although he  doesn't  have a  number  for that.  The                                                              
potential  cost  to the  healthcare  system  as  a whole  is  much                                                              
greater.  The  potential is  the  effect  on  a doctor  who  might                                                              
previously  have  called  a  specialist  about a  transport  or  a                                                              
referral for  a workup. When  the answer can  safely be no,  a lot                                                              
of money is saved  compared to the specialist  not being available                                                              
for a free  consult and saying the  patient must be sent.  That is                                                              
a risk the state needs to avoid.                                                                                                
                                                                                                                                
1:38:03 PM                                                                                                                    
SENATOR REINBOLD  asked if the bill  has any protection  in regard                                                              
to administering the mRNA vaccines.                                                                                             
                                                                                                                                
SENATOR  KIEHL  replied  not  directly,   but  he  could  see  the                                                              
potential  implication. If  a healthcare  provider  had a  patient                                                              
who is  medically fragile or  has complicating medical  conditions                                                              
and wanted  to call  a specialist to  see if those  contraindicted                                                              
giving the  shot, the  state would  want them to  be able  to make                                                              
that call and SB 65 would help make that a safe call.                                                                           
                                                                                                                                
SENATOR   REINBOLD  asked   if  the  bill   protects  the   person                                                              
administering the shot.                                                                                                         
                                                                                                                                
SENATOR  KIEHL  answered  that  that  person  lays  hands  on  the                                                              
patient  and would  retain whatever  liability  that person  would                                                              
otherwise  have if  there  was a  bad  reaction  that might  cause                                                              
liability.                                                                                                                      
                                                                                                                                
SENATOR REINBOLD advised  that safety with vaccines  will be a top                                                              
issue  with  her.  She  wanted   to  make  sure  there  were  zero                                                              
protections  regarding vaccinations.  The Judiciary Committee  has                                                              
talked  about   informed  consent  required  with   emergency  use                                                              
authorization  of vaccines.  She hopes the  long-term effects  are                                                              
fine, but no one  knows what they are. She is happy  to know there                                                              
is  zero protection  for those  people involved  with vaccines  in                                                              
this bill.                                                                                                                      
                                                                                                                                
1:41:05 PM                                                                                                                    
SENATOR  HUGHES asked  about  a  scenario in  which  someone in  a                                                              
coffee line  asks a provider who  has not treated or done  an exam                                                              
of that person for  advice and that person takes  that advice, but                                                              
the person  has an  adverse reaction  when following that  advice.                                                              
She asked if this bill could relieve that provider of liability.                                                                
                                                                                                                                
SENATOR KIEHL replied  SB 65 would not apply to  that scenario. SB
 covers consultations between healthcare providers.                                                                           
                                                                                                                                
SENATOR HUGHES asked him to point that out in the bill.                                                                         
                                                                                                                                
SENATOR KIEHL  responded that  page 1,  line 7, provides  immunity                                                              
to  a consulting  healthcare provider.  Page 2,  line 20,  defines                                                              
the consulting  healthcare provider,  someone who provides  advice                                                              
to  another  healthcare provider  and  then  there  is a  list  of                                                              
licensed healthcare providers.                                                                                                  
                                                                                                                                
SENATOR  HUGHES  referred  to  page 2,  line  14,  beginning  with                                                              
number  9, a written  report  is not created  as  a result of  the                                                              
consultation.  She asked  again about a  coffee line  conversation                                                              
in which one provider  speaks to another provider and  a report is                                                              
written  and patient  treated accordingly.  If  the patient  sues,                                                              
she asked if that  would be considered a written  report or should                                                              
the  bill specify  the  written  report must  be  prepared by  the                                                              
consulting provider.                                                                                                            
                                                                                                                                
SENATOR KIEHL replied  that he doesn't know if  that clarification                                                              
would be  in any way  harmful. It matches  the intent  because the                                                              
liability shield  is provided  to the  consulting provider.  It is                                                              
not   strictly  necessary.   If   he  understands   her   scenario                                                              
correctly,  the   treating  provider  writes  the   report.  Their                                                              
liability  rests with  the treatment  they provided,  irrespective                                                              
of the report, but he sees no harm in that clarification.                                                                       
                                                                                                                                
SENATOR  HUGHES  said  that  she   did  not  want  to  imply  that                                                              
healthcare  providers are  nefarious, but  she could  see that  if                                                              
someone  took some  informal advice  in the coffee  line and  then                                                              
there was  an adverse result and  the patient sued,  that provider                                                              
may try to create  a report saying they received  that advice from                                                              
another  physician in  order to  spread the  burden of  liability.                                                              
She could see  the need for clarification that  the written report                                                              
would  be by  the  consulting provider  to  prevent  that type  of                                                              
situation, even though  it would be rather unlikely.  She asked if                                                              
Senator Kiehl would entertain that as a friendly amendment.                                                                     
                                                                                                                                
SENATOR  KIEHL  responded  that   he  had  no  objection  to  that                                                              
clarification.                                                                                                                  
                                                                                                                                
1:45:51 PM                                                                                                                    
CHAIR WILSON called on invited testimony.                                                                                       
                                                                                                                                
1:46:11 PM                                                                                                                    
JACOB   KELLY,  M.D.,   Alaska  Heart   and  Vascular   Institute,                                                              
Anchorage,  Alaska,  said  SB  65  allows  physicians  to  provide                                                              
unencumbered clinical  expertise to  help patients across  Alaska.                                                              
Alaska's  value  and mission  is  to  take  care of  all  Alaskans                                                              
regardless  of location  and ability  to pay.  This allows  better                                                              
local  care and  leads to  decreased  inappropriate transfers.  It                                                              
allows patients  to be cared  for where  they are safer.  It would                                                              
ultimately reduce  cost. He  receives from 2  to 10 calls  a night                                                              
from  various  cities from  nurse  practitioners,  emergency  room                                                              
physicians, family  physicians, and other specialists.  It is nice                                                              
to  be able  to  support  them in  their  decision-making  without                                                              
concern about  litigation when  he has no  access to  the patient,                                                              
their  records or  data.  As a  heart failure  specialist,  people                                                              
have questions  for him about how  to titrate medications.  It can                                                              
be difficult to  transfer a patient to Anchorage  for an expensive                                                              
visit  when  a  slight titration  of  medications  would  lead  to                                                              
improved survival and quality of life.                                                                                          
                                                                                                                                
SENATOR HUGHES commented  that it is important  to share knowledge                                                              
among experts  in the field. Now  that there is a precedence  of a                                                              
consulting  provider   being  sued   in  another  state,   she  is                                                              
concerned that it  might inhibit good conversations  and knowledge                                                              
sharing  between   providers.  She  asked  if  it   could  inhibit                                                              
knowledge sharing if SB 65 does not pass.                                                                                       
                                                                                                                                
DR. KELLY  agreed that  it would make  providers more  reticent in                                                              
answering  specific questions.  He  would be  more  likely have  a                                                              
patient transported  to Anchorage to  one of the  larger hospitals                                                              
to provide care that could have been delivered locally.                                                                         
                                                                                                                                
SENATOR  REINBOLD asked  if  SB 65  could  reduce his  malpractice                                                              
insurance.                                                                                                                      
                                                                                                                                
DR.  KELLY  deferred  the  question   to  Robert  Craig.  He  said                                                              
physicians  see  this as  allowing  better  quality of  care  with                                                              
fewer  restrictors.  It  is about  feeling  comfortable  providing                                                              
care and allowing people to get the best care they can.                                                                         
                                                                                                                                
1:50:58 PM                                                                                                                    
ROBERT   CRAIG,  CEO,   Alaska  Heart   and  Vascular   Institute,                                                              
Anchorage,  Alaska,  said  he doesn't  anticipate  any  change  to                                                              
malpractice  premiums. That  is  not part  of  the motivation  for                                                              
support of  the bill.  The institute's  cardiologists are  on call                                                              
and available for  the state 24/7. That coverage is  not part of a                                                              
telehealth  obligation;  these  are  not their  patients  and  the                                                              
institute  is  not  reimbursed   for  the  call.  The  institute's                                                              
cardiologist in  Anchorage can take a  call any time day  or night                                                              
from  a  treating  physician.  The  cardiologist  has  no  patient                                                              
record or  relationship, which  places a  special burden  on their                                                              
doctors  to  be  open  to  potential  civil  liability.  They  are                                                              
primarily  interested in  giving timely  and accurate  information                                                              
to  another  treating  physician.  The  option is  to  advise  the                                                              
treating physician  to send the patient to Anchorage  or request a                                                              
formal  consultation, which  delays  care  and/or increases  cost.                                                              
The goal  of the institute's doctors  is to continue to  provide a                                                              
high level  of cardiology  service to the  state's providers  in a                                                              
high-quality and low-cost manner.                                                                                               
                                                                                                                                
SENATOR  REINBOLD commented  on her  intentions when  the bill  is                                                              
heard in  the next committee of  referral, and expressed  a desire                                                              
to see malpractice premiums to go down.                                                                                         
                                                                                                                                
1:54:39 PM                                                                                                                    
STEVEN  COMPTON,  M.D., Secretary/Treasurer  Elect,  Alaska  State                                                              
Medical  Association,  Anchorage,   Alaska,  said  he  is  another                                                              
cardiologist  at Alaska  Heart and  Vascular Institute  but he  is                                                              
there representing  the Alaska  State Medical Association  (ASMA).                                                              
The  institute estimates  it is  doing 10-20  curbside consults  a                                                              
day across  the state. Some  are urgent and  some are not  so bad.                                                              
Sometimes  the   referring  doctor  is  overly  worried   and  the                                                              
cardiologists  can calm  them down.  Sometimes it  is the  reverse                                                              
and  a  patient needs  to  come  in  right  away. Many  times  the                                                              
problem  can be managed  locally.  Alaska has  a greater need  for                                                              
this sort of  referral network and informal consultation  than any                                                              
other state  because of its  size. Because  it is so  large, there                                                              
are healthcare inequities.  Someone who lives in a  village in the                                                              
Yukon does not have  access to the same care as  someone who lives                                                              
in  a  big  city.  Alaska  has  excellent  telecommunications  and                                                              
expert opinions can  be provided to every corner of  the state. He                                                              
has  been practicing  in Alaska  for  20 years.  The consults  are                                                              
done for  free as  part of their  duty to  citizens of  the state.                                                              
About a  year and  a half ago  their insurer asked  to speak  at a                                                              
partner  meeting. The  insurer reviewed  the  Minnesota case  that                                                              
Senator Kiehl  alluded to  and a  few others  pending at  the time                                                              
and said this  will be a problem  if it is not nipped  in the bud.                                                              
The insurer  anticipated a potential  increase in rates,  and said                                                              
he needed  to talk there needs  to be a discussion  about curbside                                                              
consults.                                                                                                                       
                                                                                                                                
DR. COMPTON  said the insurer said  the institute could  give very                                                              
general  ideas  about  how to  manage  a  case,  but if  there  is                                                              
anything  specific, the doctors  could potentially  be liable  for                                                              
anything that  happens with a  case. The institute's  insurers are                                                              
saying they  should either  not do this  or transport  everyone to                                                              
Anchorage  or address  this legislatively.  That is  why they  are                                                              
here. This  is not just a  cardiology issue. Every  specialty gets                                                              
these  calls from  around the  state.  All providers  do this  and                                                              
think this  is an important service.  He had not  appreciated that                                                              
until the conversation  with the insurer. This  is the lubrication                                                              
for  this whole  machine and  help avoid  inappropriate costs  and                                                              
help provide  excellent care in  remote places. The  ASMA supports                                                              
SB 65.                                                                                                                          
                                                                                                                                
SENATOR REINBOLD  thanked Dr.  Compton for  his work and  powerful                                                              
testimony.                                                                                                                      
                                                                                                                                
SENATOR BEGICH agreed that his testimony makes a big difference.                                                                
                                                                                                                                
2:00:07 PM                                                                                                                    
CHAIR WILSON  opened public testimony  on SB 65; finding  none, he                                                              
closed public testimony.                                                                                                        
                                                                                                                                
He held SB 65 in committee.