Legislature(2005 - 2006)CAPITOL 106


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03:56:40 PM Start
03:57:29 PM HB442
04:42:07 PM Overview(s) || Alaska Mental Health Board: Advisory Board on Alcoholism and Drug Abuse (abada)
05:29:02 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
<Bill Hearing Rescheduled to 2/28/06>
<Bill Hearing Rescheduled to 2/28/06>
<Bill Hearing Rescheduled to 2/28/06>
<Bill Hearing Rescheduled to 2/28/06>
+ Bills Previously Heard/Scheduled TELECONFERENCED
Heard & Held
Scheduled But Not Heard
Scheduled But Not Heard
HB 442-HEALTH CARE DECISIONS                                                                                                  
CHAIR WILSON announced that the  first order of business would be                                                               
HOUSE BILL NO. 442, Version  24-LS1618\G, "An Act relating to the                                                               
validity  of advance  health care  directives, individual  health                                                               
care  instructions, and  do not  resuscitate orders;  relating to                                                               
the revocation of advance health  care directives; relating to do                                                               
not  resuscitate  orders;  relating  to  resuscitative  measures;                                                               
relating  to   the  liability  of   health  care   providers  and                                                               
institutions;  relating to  an individual's  capacity for  making                                                               
health care decisions; and providing for an effective date."                                                                    
3:57:29 PM                                                                                                                    
JACQUELINE  TUPOU,  staff   to  Representative  Bruce  Weyhrauch,                                                               
Alaska  State  Legislature,  presented   HB  442,  on  behalf  of                                                               
Representative Weyhrauch, paraphrasing  from a written statement,                                                               
which read as follows [original punctuation provided]:                                                                          
     Passage  of  the  Health Care  Decisions  Act  ("Alaska                                                                  
     Act")  in  2004,  was  an  important  step  forward  in                                                                    
     modernizing  and improving  Alaska's  health care  laws                                                                    
     for  the  terminally  ill, their  families,  and  loved                                                                    
     ones. House Bill 442 makes  minor changes to the Alaska                                                                  
     Act  in order  to  provide clearer  direction to  those                                                                    
     implementing health care decisions.                                                                                        
     Current  law  imposes  a  duty  of  investigation  upon                                                                    
     doctors when  carrying out  the health  care directives                                                                    
     of their  patients. House Bill  442 amends  the current                                                                    
     statute to  conform the language  in the Alaska  Act to                                                                    
     Uniform Act  language, thus requiring  a doctor  to act                                                                    
     in "good faith"  when time is often  critical for their                                                                    
     patients.   The   bill   also  substitutes   the   word                                                                    
     "physician" for  "attending physician", to  clarify the                                                                    
     intent that  all physicians  treating a  patient adhere                                                                    
     to  the  patient's  advanced  health  care  directives.                                                                    
     Finally,  House  Bill 442  clarifies  when  CPR may  be                                                                    
     used,  addresses  the  validity of  orders  from  other                                                                    
     jurisdictions, and  indicates under  what circumstances                                                                    
     a Do Not Resuscitate order may be revoked.                                                                                 
     The Health  Care Decisions Act has  been beneficial and                                                                    
     important for  all Alaskans  in letting  terminally ill                                                                    
     patients have their wishes heard.  House Bill 442 helps                                                                    
     caregivers carry out those wishes.                                                                                         
3:59:55 PM                                                                                                                    
REPRESENTATIVE  GARDNER asked  whether this  bill provides  for a                                                               
distinction between  a physician and an  attending physician, and                                                               
the need for each to act  in good faith regarding their patient's                                                               
health care instructions.                                                                                                       
4:00:37 PM                                                                                                                    
JAMES   BROOKS,   Administrator,  Anchorage   Anesthesia   Group,                                                               
Providence  Alaska Medical  Center, pointed  out that  it is  not                                                               
unusual for  a patient  to have  several physicians.   Nor  is it                                                               
uncommon, he explained  for a patient to arrive  in the operating                                                               
room  (OR)  and  request  that  the  anesthesiologist  waive  the                                                               
existing  do not  resuscitate  (DNR) order  to  ensure that  they                                                               
survive  the anesthesia  and surgical  processes.   If a  patient                                                               
makes  this type  of request,  it would  be important  to respect                                                               
that choice  without delaying the  patient's care  while locating                                                               
the attending  physician.  He  stressed the importance  for every                                                               
physician  involved  in a  patient's  care  to be  authorized  to                                                               
adhere  to  a  patient's  DNR  orders  without  constraint.    In                                                               
response to  Representative Gardner,  he said that  the attending                                                               
physician is the primary physician on a patient's chart.                                                                        
4:02:53 PM                                                                                                                    
MICHAEL NORMAN,  Doctor of Anesthesiology, Alaska  Physicians and                                                               
Surgeons,  clarified that  "admitting physician"  is the  correct                                                               
term,  and the  term "primary  physician"  is no  longer used  in                                                               
modern practice.                                                                                                                
4:03:25 PM                                                                                                                    
REPRESENTATIVE  ANDERSON, referenced  page  3,  lines 16-27,  and                                                               
asked whether the  language "the patient requests",  refers to an                                                               
oral  or a  written  request,  and should  it  refer  to an  oral                                                               
directive, how would that directive be verified.                                                                                
DR. NORMAN responded that it  relates to an oral request, notated                                                               
in the patient's chart by whomever  it is provided to, and signed                                                               
by the patient.                                                                                                                 
CHAIR  WILSON drawing  from her  nursing experience  said that  a                                                               
request  of  this  nature  may  be stated  by  a  patient  to  an                                                               
attendant and witnessed by any available second party.                                                                          
4:06:17 PM                                                                                                                    
REPRESENTATIVE ANDERSON  directed the witness' attention  to page                                                               
4, lines 26-31,  and asked Dr. Norman to explain  the addition of                                                               
sub-paragraphs (C) and (D).                                                                                                     
DR.  NORMAN  addressed  sub-paragraph   (D),  stating  that  this                                                               
language is  to provide clarity  in a situation where  someone is                                                               
arriving in surgery  for a reason unrelated to  the condition for                                                               
which  they  have initiated  a  DNR  order,  and he  provided  an                                                               
example.  Further,  he said that sub-paragraph  (C) addresses the                                                               
situation of  a child being  affected by whatever happens  to the                                                               
MS.  TUPOU  added that  sub-paragraph  (C)  provides clarity  for                                                               
secondary conditions  which are not  related to the  original DNR                                                               
order qualifying condition.                                                                                                     
CHAIR WILSON hypothesized,  "Like maybe they broke  their arm and                                                               
it has to be set under anesthesia, ...."                                                                                        
4:09:09 PM                                                                                                                    
REPRESENTATIVE  SEATON requested  further  clarity regarding  how                                                               
the DNR order qualifying condition  effects a secondary condition                                                               
that may arise.                                                                                                                 
DR. NORMAN  stated that at issue  is a doctor's ability  to treat                                                               
whatever condition arises during  a procedure, and to resuscitate                                                               
the patient  appropriately.  Currently,  it is not clear  who can                                                               
revoke a DNR  order.  If a  patient requests that a  DNR order be                                                               
revoked, the  doctor would  like to be  able to  correct anything                                                               
that  is  not related  to  the  qualifying  illness, such  as  an                                                               
anesthetic, or  an error made with  a scalpel.  These  are errors                                                               
which a  doctor can rectify  and then continue with  the intended                                                               
4:11:12 PM                                                                                                                    
REPRESENTATIVE SEATON asked how the  language on page 3, lines 25                                                               
and 26, relates to the revocation of a DNR order.                                                                               
DR. NORMAN  defined a qualifying  condition as an  untreatable or                                                               
incurable disease, and provided examples.                                                                                       
4:12:18 PM                                                                                                                    
REPRESENTATIVE  ANDERSON   noted  that   there  is   a  statutory                                                               
definition of what constitutes a qualifying condition.                                                                          
TERRI  BANNISTER,   Attorney,  Legislative  Legal   and  Research                                                               
Services,   Legislative  Affairs   Agency,  read   the  statutory                                                               
definition of a qualifying condition  which refers to a "terminal                                                               
condition"  or a  "permanent unconsciousness"  in a  patient, and                                                               
stated that statute also defines  a "terminal condition", as well                                                               
as "permanent unconsciousness".                                                                                                 
MS. TUPOU  cited AS  13.52.160 for  further details  and clarity,                                                               
and deferred  to John Dawson,  who worked with the  physicians in                                                               
drafting the bill.                                                                                                              
4:13:56 PM                                                                                                                    
JOHN  DAWSON,   Attorney,  Davis  Wright  and   Tremaine  Limited                                                               
Liability    Partnership   (LLP);    Representative,   Providence                                                               
Anchorage   Anesthesia  Medical   Group,  stated   that  he   was                                                               
significantly  involved in  the preparation  of the  analysis and                                                               
also the drafting of the amendment.                                                                                             
4:14:27 PM                                                                                                                    
REPRESENTATIVE SEATON referred to page  4, lines 28-31, and asked                                                               
whether  a person  undergoing a  procedure unrelated  to the  DNR                                                               
order  qualifying  condition,  who   looses  vital  signs  during                                                               
surgery, could  have the DNR  order disregarded by  the physician                                                               
and thus be inappropriately resuscitated.                                                                                       
MR.  DAWSON confirmed  Representative  Seaton's understanding  of                                                               
the language.   He highlighted,  however, that the  language does                                                               
not require  the physician  to resuscitate,  but rather  that the                                                               
physician will  not be  held liable if  he elects  to resuscitate                                                               
under such circumstances.                                                                                                       
4:16:28 PM                                                                                                                    
REPRESENTATIVE  SEATON  asked whether  the  language  on page  3,                                                               
[lines 25 and 26] also allows  the physician to make a unilateral                                                               
determination and disregard the DNR order.                                                                                      
MR. DAWSON stated:                                                                                                              
     If  he  [a  physician]  believes  reasonably  that  the                                                                    
     patient does not have a  qualifying condition, which is                                                                    
     defined  in  the  statute, then  that  physician  could                                                                    
     rescind  the   DNR  order.  ...   As  opposed   to  ...                                                                    
     performing cardio pulmonary  resuscitation (CPR) in the                                                                    
     face of an order.                                                                                                          
4:17:48 PM                                                                                                                    
REPRESENTATIVE  SEATON asked  that the  qualifying conditions  be                                                               
read once again.                                                                                                                
4:18:01 PM                                                                                                                    
MS. BANNISTER read from statute [AS 13.52.390(42)]:                                                                             
     A "qualifying  condition" means a  "terminal condition"                                                                    
     or "permanent unconsciousness".                                                                                            
          (42) "terminal condition" means an incurable or                                                                       
     irreversible illness or injury                                                                                             
          (A)   that   without   administration   of   life-                                                                    
     sustaining procedures  will result in death  in a short                                                                    
     period of time;                                                                                                            
          (B) for which there is no reasonable prospect of                                                                      
     cure or recovery;                                                                                                          
          (C) that imposes severe pain or otherwise imposes                                                                     
     an inhumane burden on the patient; and                                                                                     
          (D) for which, in light of the patient's medical                                                                      
     condition,  initiating  or  continuing  life-sustaining                                                                    
     procedures will provide only minimal medical benefit.                                                                      
MS. BANNISTER responding to further  inquiry, stated that someone                                                               
who is  aged, exhausted from life,  and ready to pass,  would not                                                               
qualify under statute to hold a DNR order.                                                                                      
4:20:10 PM                                                                                                                    
REPRESENTATIVE CISSNA referred to page  2, lines 7-17, and stated                                                               
that this section appears to be contradictory.                                                                                  
CHAIR  WILSON pointed  out that  this section  represents current                                                               
statute,  and  pertains  to  patients  "in  the  case  of  mental                                                               
illness" where a  guardian or other third party  is involved, and                                                               
needing to make decisions for the principal [patient].                                                                          
MS.  TUPOU confirmed  that  this section  sets  forth a  decision                                                               
making process for a patient who is deemed to be incompetent.                                                                   
4:23:56 PM                                                                                                                    
MR.  DAWSON  stated that  this  bill  does  an excellent  job  of                                                               
remedying a number of significant  issues that were raised by the                                                               
original  statute, which,  given  the situations  faced daily  by                                                               
health care  professionals, effectively requires doctors  to make                                                               
legal decisions.                                                                                                                
4:25:13 PM                                                                                                                    
CHAIR WILSON  requested further clarity  regarding when  a doctor                                                               
can override a DNR order.                                                                                                       
MR.  DAWSON  provided two  examples  to  illustrate key  decision                                                               
situations, which  a doctor  may be  faced with:   A  patient who                                                               
holds  a DNR  order  for  a terminal  cancer  condition, and  who                                                               
arrives in need  of a medical procedure for an  acute reaction to                                                               
a bee  sting, which requires  resuscitative measures; and  when a                                                               
surgeon's  own   actions  precipitate   a  problem  such   as  an                                                               
anesthesiologist administering  too much medication,  requiring a                                                               
reversal  of  procedure.   He  opined  that  in either  of  these                                                               
situations the  physician should be able  to take life-sustaining                                                               
actions, as provided for in HB 442.                                                                                             
4:27:04 PM                                                                                                                    
REPRESENTATIVE  GARDNER requested  further clarity  on whether  a                                                               
family  member, of  an infirm  patient, could  insist that  a DNR                                                               
order be  upheld over the  physician's desire to recover  from an                                                               
error, thus negating the DNR order.                                                                                             
4:28:01 PM                                                                                                                    
REPRESENTATIVE  ANDERSON asked  whether  there  is a  delineation                                                               
between surgical procedures which  may require resuscitation, and                                                               
being sustained on a life support system.                                                                                       
MS.  TUPOU  said that  this  bill  provides permissive  language,                                                               
which  allows for  appropriate medical  action based  on "a  good                                                               
faith belief".                                                                                                                  
4:29:25 PM                                                                                                                    
REPRESENTATIVE SEATON  expressed his concerns that  this language                                                               
continues   to  impose   legal   decisions   on  the   physician.                                                               
Furthermore, he  stated that when  a physician chooses  to ignore                                                               
the  desire of  a  patient  by rescinding  a  DNR  order for  any                                                               
reason, it is  a violation of the patient's wishes.   He said, "I                                                               
don't think that's where we want to be."                                                                                        
CHAIR  WILSON  pointed out  that  a  permit  is signed  prior  to                                                               
surgery  which  provides  for certain  assumptions  of  procedure                                                               
while a patient  is undergoing anesthesia.   However, current law                                                               
is not clear when a doctor is  to be held liable and in violation                                                               
of a DNR order, if they resuscitate for certain circumstances.                                                                  
4:31:48 PM                                                                                                                    
DR.  NORMAN  confirmed  that  two  separate  contexts  are  being                                                               
addressed  here namely,  the  OR surgical  release,  and the  DNR                                                               
order for a qualifying condition.  He explained:                                                                                
     The decision of  what we are going to do  in surgery is                                                                    
     made before we enter the  operating room.  [As] pointed                                                                    
     out ... where the person  did not want to have anything                                                                    
     done no matter  what, that was honored.   If the person                                                                    
     says I  want to have  anything done that's  not related                                                                    
     to my illness,  if I have ... a cardiac  arrest or if I                                                                    
     have one of these events  I want you to resuscitate me.                                                                    
     I  don't believe  the intent  of the  law is  to change                                                                    
     your  plan  of  attack  after  you're  already  in  the                                                                    
     operating room,  ... before we  start we have  rules of                                                                    
     engagement established.   We're trying to  clarify what                                                                    
     those rules are,  ... these things are  gray areas, and                                                                    
     we're trying to change that.                                                                                               
4:33:05 PM                                                                                                                    
REPRESENTATIVE  SEATON  said  that  if a  patient  has  signed  a                                                               
surgical order which stipulates  resuscitative measures are to be                                                               
taken, then that would negate  the implementation of a DNR order.                                                               
However, this  language allows  a doctor  to make  an independent                                                               
decision outside of these established qualifications.                                                                           
4:33:38 PM                                                                                                                    
MR. DAWSON highlighting the crux of the issue, stated:                                                                          
     If a physician is not  permitted to correct his mistake                                                                    
     ... the fact [that] there's  a DNR order in place, does                                                                    
     not  mean   that  the  physician  can't   be  sued  for                                                                    
     malpractice ....   So you've  put the physician  in the                                                                    
     untenable  position  of  ...  [not  being]  allowed  to                                                                    
     correct his own  error, and yet he can then  be sued by                                                                    
     the  family for  that error.    There does  seem to  be                                                                    
     something  unfair about  that. ...  When somebody  goes                                                                    
     into surgery,  ... the game  plan is to bring  them out                                                                    
     of  surgery. ...  It seems  ... to  be against  medical                                                                    
     practice and  medical common sense to  suggest that, if                                                                    
     somebody because of something  the surgeon does, is put                                                                    
     in  a  position  where  they need  CPR,  that  ...  the                                                                    
     physician  should   be  helpless  to  ...   [perform  a                                                                    
     corrective  procedure].   Obviously, the  patient hopes                                                                    
     to be  able to  come out  of this  surgery ...  and the                                                                    
     physician  expects to  be able  to do  his job  without                                                                    
     being  afraid  of being  sued.  ...  It's important  to                                                                    
     remember that we're only talking  about patients with a                                                                    
     qualifying  condition,  and  ...  dementia  [previously                                                                    
     mentioned] ...  is not in fact  a qualifying condition.                                                                    
     ...  The places  where this  is  going to  come up  are                                                                    
     going to be very few, and  ... in those places we ought                                                                    
     to err  on the  side of good  medicine. ...  That's ...                                                                    
     what the doctor's  who are hoping to  see these changes                                                                    
     come  about ...  are hoping  that the  legislature will                                                                    
     look to:   what's  good medicine; what  makes practical                                                                    
     sense  when  we're  trying   to  actually  minister  to                                                                    
4:35:36 PM                                                                                                                    
REPRESENTATIVE GARDNER  restated her concern, that  if a conflict                                                               
should arise  for the physician,  for philosophical  or liability                                                               
reasons, that his/her needs should  not "trump the express desire                                                               
of the patient and the patient's family."                                                                                       
MR.  BROOKS explained  that an  ethical matrix  exists to  ensure                                                               
that a  physician is chosen  who is able  to go into  surgery and                                                               
appropriately  honor  the  patient's or  the  guardian's  wishes.                                                               
Furthermore, this occurs everyday,  and upholding DNR requests is                                                               
a priority in the profession, he said.                                                                                          
REPRESENTATIVE GARDNER pointed  out that what Mr.  Brooks does in                                                               
his own practice may not be  what is upheld across the board, and                                                               
therein lies the importance of passing this legislation.                                                                        
4:38:31 PM                                                                                                                    
CHAIR WILSON announced that HB 442  would be held in committee to                                                               
allow for  further testimony  and amendment  opportunities, prior                                                               
to moving it to the Judiciary Committee.                                                                                        

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