04/27/2021 03:00 PM House HEALTH & SOCIAL SERVICES

        SB  65-LIABILITY CONSULTING HEALTH CARE PROVIDER                                                                    
                                                                                                                                
4:51:29 PM                                                                                                                    
                                                                                                                                
CO-CHAIR SNYDER announced that the  final 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."                                                                                       
                                                                                                                                
4:51:53 PM                                                                                                                    
                                                                                                                                
SENATOR JESSE KIEHL, Alaska State  Legislature, as prime sponsor,                                                               
introduced  CSSB  65(JUD).   He  turned  to  his intern,  Ms.  CJ                                                               
Harrell, to present the bill.                                                                                                   
                                                                                                                                
4:52:26 PM                                                                                                                    
                                                                                                                                
CJ   HARRELL,  Intern,   Senator   Jesse   Kiehl,  Alaska   State                                                               
Legislature, presented  CSSB 65(JUD) on behalf  of Senator Kiehl,                                                               
prime sponsor.   She  explained that  when health  care providers                                                               
need advice on  how to treat a  patient it is common  for them to                                                               
casually reach out to other  health care professionals.  She said                                                               
it is considered a "curbside"  consultation when the conversation                                                               
is  uncompensated and  informal, and  the consulting  health care                                                               
provider  has  no  relationship   with  the  patient.    Curbside                                                               
consultations  happen regularly  in  Alaska and  other states  as                                                               
they are a  fast and effective way for a  health care provider to                                                               
get advice.                                                                                                                     
                                                                                                                                
MS.  HARRELL stated  that should  a civil  liability case  occur,                                                               
CSSB 65(JUD) answers a new question  of who would be liable   the                                                               
patient's health care  provider or the professional  who gave the                                                               
advice.   She  said  current liability  remains  with the  direct                                                               
health care provider.   However, she continued, there  was a case                                                               
in 2019 in Minnesota where  a consulting health care provider did                                                               
have to  defend himself.   The  Minnesota Supreme  Court's ruling                                                               
threatened to upend this important  part of American health care.                                                               
Medical  professionals  need  to  feel  comfortable  giving  this                                                               
valuable  advice to  their colleagues,  she  explained, and  CSSB
(JUD) would  allow curbside  consultations to  continue without                                                               
fear of the  consulting health care provider  becoming subject to                                                               
civil   liability  for   a  patient   with  whom   they  had   no                                                               
relationship.    At  the  same  time,  she  said,  it  keeps  the                                                               
longstanding rule  clear that the  treating health  care provider                                                               
is the one responsible if a civil liability case occurs.                                                                        
                                                                                                                                
4:54:08 PM                                                                                                                    
                                                                                                                                
SENATOR KIEHL  provided a sectional  analysis.  He said  the bill                                                               
is a single section with  the initial nine subsections describing                                                               
situations   where   under   current   law   and   under   common                                                               
understanding a doctor-patient relationship,  or duty of care, is                                                               
established.   In  these situations,  he  explained, [the  health                                                               
care  professional] giving  advice  is  still potentially  liable                                                               
because of having  a duty to the patient through  laying hands on                                                               
the patient,  being paid, and  being part  of a practice  that is                                                               
treating  the patient.    A curbside  consult  and the  liability                                                               
shield  under  CSSB 65(JUD)  only  occur  when [the  health  care                                                               
professional] does  not have  that duty of  care.   Senator Kiehl                                                               
pointed out that subsection (b)  is also important and is written                                                               
so  that if  the  rare case  happens  where there  is  harm to  a                                                               
patient and a liability, the patient  is able to recover the full                                                               
amounts allowed  under Alaska law; the  patient's recovery cannot                                                               
be reduced  because there was  a curbside  consult.  He  said the                                                               
bill also provides definitions for all the terms.                                                                               
                                                                                                                                
4:55:57 PM                                                                                                                    
                                                                                                                                
[CO-CHAIR SNYDER opened invited testimony on CSSB 65(JUD).]                                                                     
                                                                                                                                
4:56:28 PM                                                                                                                    
                                                                                                                                
ROBERT CRAIG, CEO, Alaska Heart  and Vascular Institute, provided                                                               
invited testimony in support of  CSSB 65(JUD).  He explained that                                                               
the institute's physicians  take calls at any time of  the day or                                                               
night   from  physicians   elsewhere  in   the  state   who  have                                                               
cardiology-related questions  or tests to interpret  for patients                                                               
in their  care.   Since the  institute's doctor  will not  have a                                                               
patient  record  and  will  be unfamiliar  with  the  patient  in                                                               
question, a  special burden is  placed on the  institute's doctor                                                               
to  be open  to potential  civil liability,  but the  institute's                                                               
physicians  are   interested  in   giving  timely   and  accurate                                                               
information to  the calling physician  in order to care  for that                                                               
patient.  The other option to  this, he pointed out, is to advise                                                               
the calling physician to send the  patient to Anchorage or make a                                                               
formal request by  way of consultation, but the  downside is that                                                               
this can  delay care  as well as  increase potential  health care                                                               
cost.   He  said  the goal  of the  institute's  providers is  to                                                               
continue to  provide a high  level of  cardiology-related service                                                               
in a  high quality and  low-cost manner to the  state's providers                                                               
calling  for that  service.   He  concluded by  stating that  the                                                               
institute supports CSSB 65(JUD).                                                                                                
                                                                                                                                
4:58:27 PM                                                                                                                    
                                                                                                                                
JACOB KELLY, MD, MHS, FACC,  Alaska Heart and Vascular Institute,                                                               
provided invited testimony  in support of CSSB 65(JUD).   He said                                                               
he is  one of two  advanced heart failure and  cardiac transplant                                                               
cardiologists in  Alaska.   He related that,  in general  when on                                                               
call,  an  institute doctor  is  on  call throughout  the  entire                                                               
state,  and during  a 24-hour  period he  has had  as many  as 20                                                               
different   phone  calls   and   curbsides  helping   physician's                                                               
assistants,   nurse  practitioners,   health  aides,   and  other                                                               
physicians so  they can deliver  care timely  and on site.   Very                                                               
few locations  in Alaska have  cardiologists, he added,  so there                                                               
is  no local  option.   He pointed  out that  a lot  of what  the                                                               
institute's doctors do  isn't remunerated and is  to provide care                                                               
because the first  oath a doctor takes is to  not harm people and                                                               
afterwards  doctors want  to help  patients  extend their  lives,                                                               
reduce suffering, and improve quality of life.                                                                                  
                                                                                                                                
DR. KELLY noted  that in the Lower 48 it  is oftentimes easy when                                                               
receiving  these calls  to request  the  patient be  sent to  the                                                               
emergency  room  and the  doctor  being  consulted will  see  the                                                               
patient there, whereas  in Alaska that could mean a  boat or snow                                                               
machine ride  followed by a plane  ride.  He stated  that some of                                                               
his colleagues at the institute  see a lot of potential liability                                                               
in providing  care for  someone that  the doctor  being consulted                                                               
cannot see  or touch but is  trying to help as  best as possible,                                                               
and an  added challenge is  that this could be  at 2:00 a.m.   He                                                               
said the  simplest and easiest way  would be to ask  for transfer                                                               
of  the patient,  but this  may  not be  the best  thing for  the                                                               
patient,  so  this  bill  would   allow  for  the  doctors  being                                                               
consulted to  relax and  use their brains  and skillsets  to help                                                               
other providers  and doctors  and their  patients in  their local                                                               
space to  get the best  care.  Sometimes  the best care  may mean                                                               
transferring into  Anchorage, he continued, but  sometimes it may                                                               
mean keeping  patients where  they are  at.   He advised  that in                                                               
Alaska  there is  currently a  transfer  of the  "old school"  of                                                               
doctors who  understand the remote way  of life in Alaska  to new                                                               
practicing doctors who are very  fearful of litigation.  The bill                                                               
would  reduce  that  barrier so  the  institute's  doctors  could                                                               
continue to  help give the  outstanding care that has  been given                                                               
over the  last 30 years  in Alaska.   He concluded  by expressing                                                               
his support for CSSB 65(JUD).                                                                                                   
                                                                                                                                
5:02:52 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  KURKA stated  that it  looks  like a  lot of  new                                                               
language is being  added to statute regarding who  "duty of care"                                                               
would  apply  to.   He  asked  whether  this is  already  defined                                                               
elsewhere in statute or regulation.                                                                                             
                                                                                                                                
SENATOR KIEHL replied that if  a definition of what constituted a                                                               
"duty  of care"  was had  in Alaska's  statutes it  would be  the                                                               
preferable drafting approach.  But,  he explained, the concept of                                                               
a "duty of  care" is a common law concept  built through hundreds                                                               
of  years of  precedent  in Western  law;  the Minnesota  Supreme                                                               
Court case put things into an  upset situation by creating a very                                                               
different standard.   While Alaska's  courts are in no  way bound                                                               
by Minnesota's courts,  he continued, various states  look to one                                                               
another  and so  this bill  would protect  Alaska's medical  care                                                               
system and  the curbside consults  that are an important  part of                                                               
it.   The text in  the bill is  an attempt to  capture everything                                                               
that  could be  thought  of  where there  really  is  a duty,  an                                                               
obligation,  a  doctor-patient  relationship, or  a  remuneration                                                               
relationship, he stated.  The  bill does not apply this liability                                                               
exemption  to any  place that  would commonly  be understood  for                                                               
there to be a duty of the health care provider to the patient.                                                                  
                                                                                                                                
REPRESENTATIVE KURKA  noted that  Alaska currently  has liability                                                               
for doctors  who do  malpractice.   He said  it seems  that there                                                               
should be something  beyond precedent of case law in  terms of an                                                               
establishment of  what constitutes a doctor's  responsibility and                                                               
who is responsible when tending a patient.                                                                                      
                                                                                                                                
5:06:10 PM                                                                                                                    
                                                                                                                                
PAM   VENTGEN,   Executive   Director,   Alaska   State   Medical                                                               
Association (ASMA), responded  that ASMA supports the  bill.  She                                                               
noted that the  bill applies to other specialists  in addition to                                                               
cardiologists.   She  explained that  the duty  of care  has been                                                               
understood  for centuries  and  it  is part  of  the practice  of                                                               
medicine.  She said the  bill's language was carefully crafted to                                                               
support what  has been happening  without the protections  in the                                                               
bill.                                                                                                                           
                                                                                                                                
5:07:07 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  PRAX  said  he   is  concerned  that  by  stating                                                               
something  it will  be  allowing something  else,  given the  way                                                               
Alaska's  laws  are  written.     He  asked  whether  plaintiff's                                                               
attorneys  have  been  consulted   regarding  how  this  type  of                                                               
attorney might look at it.                                                                                                      
                                                                                                                                
SENATOR  KIEHL confirmed  that conversations  have been  had with                                                               
personal  injury attorneys  in  Alaska.   He  related that  their                                                               
concerns center  around the precise  language that  prevents "the                                                               
empty  chair," which  is what  he described  in not  reducing the                                                               
treating  health care  provider's liability  by virtue  of having                                                               
gotten advice  from someone  whom the bill  would not  subject to                                                               
liability.    He  allowed  that  conversation  is  ongoing  about                                                               
whether  this needs  a fine-tune  adjustment.   In  terms of  the                                                               
broader issue, he  continued, the state of the law  today is that                                                               
if [a  provider] doesn't have a  doctor-patient relationship [the                                                               
provider] is not understood to have  a duty of care, which is why                                                               
the  Minnesota  Supreme Court's  decision  was  such an  upending                                                               
event.    Regarding doing  a  harm,  Senator Kiehl  related  that                                                               
several  medical  professionals  have  been  worked  with  and  a                                                               
situation of  harm has not yet  been identified, but he  would be                                                               
amenable if a situation presents itself.                                                                                        
                                                                                                                                
5:10:15 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  PRAX  recalled  one  of  the  previous  witnesses                                                               
stating that  he got  up to  20 calls  in a  24-hour period.   He                                                               
inquired whether  it could be  argued that part of  that person's                                                               
job if  making that  many consultations  in a  day is  to provide                                                               
consultations.                                                                                                                  
                                                                                                                                
SENATOR KIEHL replied that he  doesn't think so because these are                                                               
uncompensated calls.  It is  a service that medical professionals                                                               
are providing  to one another, he  stated, and they are  under no                                                               
legal obligation, nor would this  bill create a legal obligation,                                                               
to take those calls.  He said  the only goal, and he believes the                                                               
only effect,  of CSSB 65(JUD) is  to free them up  to continue to                                                               
do so when they choose to do so.                                                                                                
                                                                                                                                
5:11:31 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SPOHNHOLZ  surmised  CSSB 65(JUD)  would  provide                                                               
support by  protecting the provider-to-provider  relationship and                                                               
would not create something more than that.                                                                                      
                                                                                                                                
SENATOR KIEHL agreed.                                                                                                           
                                                                                                                                
5:12:44 PM                                                                                                                    
                                                                                                                                
CO-CHAIR  SNYDER  asked whether  there  is  precedence for  other                                                               
occupations where they  would be held liable; for  example, if an                                                               
electrician  called another  electrician about  what to  do in  a                                                               
special circumstance.                                                                                                           
                                                                                                                                
SENATOR KIEHL responded that none come to mind.                                                                                 
                                                                                                                                
5:13:47 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SPOHNHOLZ  posited that  one thing  distinct about                                                               
this   scenario  from   other  scenarios   of  one   professional                                                               
consulting   another  professional   is   that   there  is   time                                                               
sensitivity to  a health care  decision.   An answer to  a health                                                               
care malady  is needed  quickly and  it is  desired to  make sure                                                               
that the person  who is picking up  the call on the  other end is                                                               
going  to be  comfortable.   It is  a sad  state of  affairs, she                                                               
opined,  that there  is  a  need to  create  this protection  for                                                               
something that isn't described anywhere  because there is no duty                                                               
of care.   However, if providers  are saying that they  feel this                                                               
concern, there is merit to  addressing it; the letters of support                                                               
for it are broad in the  health care community.  She related that                                                               
a physical  therapist has  suggested adding  physical therapists.                                                               
She   asked  whether   this  has   been  discussed   in  previous                                                               
committees.                                                                                                                     
                                                                                                                                
SENATOR KIEHL  answered that there have  been conversations about                                                               
other  disciplines   within  the  medical  field   with  curbside                                                               
consults.   He advised that  it is  important to be  very precise                                                               
and specific when granting a  shield from liability, specifically                                                               
because of the risk of unintended  consequence.  So, he said, the                                                               
list of  providers in the  bill was tailored toward  the greatest                                                               
need for these  curbside consults and with an eye  toward some of                                                               
the   broader  physical   health  scopes   of  practice.     Each                                                               
professional  has  a  scope  of  practice  that  allows  them  to                                                               
independently evaluate  the advice they are  given, he continued.                                                               
The treating health care professional  remains entirely liable to                                                               
be  sued  and held  responsible  in  court.    That is  why,  for                                                               
example, registered  nurses (RNs) are  not on  the list.   When a                                                               
nurse communicates  with a doctor  there is not a  parallel scope                                                               
of practice,  scope of training, and  that is why the  bill is as                                                               
narrowly tailored as it is.                                                                                                     
                                                                                                                                
REPRESENTATIVE  SPOHNHOLZ   pointed  out  that  a   [health  care                                                               
provider] might  consult with  a physical  therapist to  find out                                                               
whether something  is treatable  via physical therapy  as opposed                                                               
to a higher level of intervention such as surgery.                                                                              
                                                                                                                                
SENATOR KIEHL  offered his appreciation to  committee members for                                                               
their consideration and questions about CSSB 65(JUD).                                                                           
                                                                                                                                
5:19:37 PM                                                                                                                    
                                                                                                                                
CO-CHAIR SNYDER  opened public  testimony on  CSSB 65(JUD).   She                                                               
closed  public  testimony after  ascertaining  no  one wished  to                                                               
testify.                                                                                                                        
                                                                                                                                
[CO-CHAIR SNYDER held over CSSB 65(JUD).]