Legislature(2005 - 2006)
03/27/2006 02:03 PM House JUD
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HB 442 - HEALTH CARE DECISIONS 2:46:18 PM CHAIR McGUIRE announced that the final order of business would be HOUSE BILL NO. 442, "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." [Before the committee was CSHB 442(HES).] 2:46:39 PM JACQUELINE TUPOU, Staff to Representative Bruce Weyhrauch, Alaska State Legislature, sponsor, explained on behalf of Representative Weyhrauch that HB 442 makes minor changes to Alaska's Health Care Decisions Act, which was passed in 2004 with the goal of modernizing and improving Alaska's health care laws. Current law imposes a duty of investigation upon physicians who are carrying out the health care [directives of their patients], and HB 442 would conform the language in Alaska's Act to the language in the Uniform Health-Care Decisions Act, providing for the more appropriate standard of acting [with a good faith belief]. MS. TUPOU relayed that the bill also replaces the term "attending physician" with the term "physician" because according to the doctors that the sponsor contacted, the former term is not used much any more; this will clarify the sponsor's intent that all of a patient's physicians should honor the patient's healthcare directives. Furthermore, the bill clarifies when cardiopulmonary resuscitation (CPR) can be used, addresses the issue of the validity of orders from other jurisdictions, and indicates under what circumstances a "do not resuscitate" (DNR) order may be revoked. In conclusion, she characterized Alaska's Health Care Decisions Act as being immensely beneficial in helping terminally ill patients and their families and loved ones, and HB 442 as attempting to very narrowly address certain issues. REPRESENTATIVE GARA referred to the language on page 4, lines 25-26, and asked what the addition of that language will do; that language read: (C) because the patient is a woman of childbearing age and AS 13.52.055 applies; MS. TUPOU offered her understanding that if there is a reasonable belief that a woman could be pregnant, under that language a physician could perform resuscitative measures on the woman; this provision essentially addresses the issue of liability for a physician who undertakes such measures. REPRESENTATIVE GARA said he is supportive of the bill, but is concerned about where the line is drawn between having a DNR order and withdrawing nutrition and other services, and going to the next step, which many call euthanasia. He asked for clarification regarding what a medical professional may do if a patient asks for help dying. MS. TUPOU offered her understanding that in order to be granted a DNR order, one must have a qualifying terminal condition, and current law contains a definition of what would constitute a qualifying terminal condition. CHAIR McGUIRE offered her understanding of the difference between euthanasia and a situation that could involve a DNR order. MS. TUPOU, in response to questions regarding the language pertaining to a woman of childbearing years, indicated that a physician would have a duty to ascertain whether the woman is pregnant, and, if she is, regardless of what stage of her pregnancy she is in, the physician would at that point administer resuscitative measures. 2:53:59 PM SHELLEY OWENS, Health Program Manager, Section of Injury Prevention & Emergency Medical Services, Division of Public Health, Department of Health and Social Services (DHSS), relayed that she administers the Comfort One Program and would be commenting on how Section 5 of HB 442 will impact emergency medical technicians (EMTs) and other emergency responders, and that members' packets contain a letter from section chief Tim Bundy. She offered her understanding that members' packets also contain an amendment by the sponsor that is intended to address the DHSS's concerns. She went on to say: The Comfort One Program has been in effect for 10 years, and it provides a standard procedure for [emergency medical service (EMS)] responders outside of a hospital to identify and honor the wishes of a terminally ill patient not to be resuscitated when his or her heart stops. In order to obtain a DNR order, ... a patient must have a terminal condition or be in a state of permanent unconsciousness. The DNR order must be signed by a doctor, and takes effect only at the time of cardiac arrest. If a DNR patient is choking on a piece of food, breaks a hip, or gets into a car accident, EMS personnel will treat them using standard medical procedures. We're concerned about the use of the term "health care provider" in Section 5, ... and want to thank Representative Weyhrauch for preparing the amendment, which would cure our concerns. The [term] "Health care provider" is defined in [AS 13.52.390(23)] as "an individual licensed, certified, or otherwise authorized or permitted by law to provide health care in the ordinary course of business or practice of a profession". This term would include emergency trauma technicians [ETTs] who have only 40 hours of initial training in advanced first aid. Section 5 would authorize providers with limited medical training to override a physician's DNR order on the basis of a diagnosis which they are not medically trained to make. It wouldn't be possible to train emergency providers, such as an ETT, to diagnose if a person is dying of their terminal condition or as a result of the action of the health care provider. I understand that a concern of the drafters is that if a DNR patient goes into cardiac arrest during surgery for a condition unrelated to the patient's terminal condition, a surgeon or anesthesiologist may want to resuscitate the patient; however, it's possible [the bill drafters] ... didn't anticipate the consequence to the pre-hospital medical providers and the Alaska Comfort One Program. There are over 4,000 emergency medical responders in Alaska, of which 75 percent are volunteers; they have only seconds to make immediate life and death decisions. They're the heart and backbone of our emergency response system in Alaska, but they aren't doctors and shouldn't be given the responsibility to revoke a doctor's DNR order. It wouldn't be fair to either them or the patient. We would urge you to accept ... Representative Weyhrauch's amendment, and we would support the bill if this amendment is adopted. Thank you. 2:57:30 PM REPRESENTATIVE ANDERSON indicated a willingness to offer the aforementioned amendment, labeled 24-LS1618\F.3, Bannister, 3/27/06 [later known as Amendment 1], which read: Page 3, line 10, following "patient.": Insert "This subsection does not apply when a health care provider performs emergency medical services to a patient in the field, unless an online physician orders the health care provider to perform cardiopulmonary resuscitation or other resuscitative measures. In this subsection, (1) "health care provider" does not include a physician; (2) "in the field" does not include in a health care facility, health care institution, hospital, or mental health facility; (3) "online physician" means a physician who is immediately available in person or by radio or telephone, when medically appropriate, for communication of medical direction to health care providers." REPRESENTATIVE GRUENBERG mentioned that Kenneth C. Kirk had written an article for the Alaska Law Review addressing [the Health Care Decisions Act] noting a number of deficiencies in the Act and suggesting [improvements]. For example, according to Mr. Kirk, there is a mis-reference to "conservatorship" when what is actually meant is "guardianship". He indicated a desire to provide members with a copy of that article. 2:59:32 PM JON S. DAWSON, Attorney at Law, Davis Wright Tremaine, LLP, relayed that he represents Providence Anchorage Anesthesia Medical Group, P.C., a group of anesthesiologists that provide anesthesia services to [Providence Alaska Medical Center]. He said he wants to emphasize, "from a real world perspective," the importance of passing [HB 442]. Doctors want to honor the wishes of the patient, comply with the law, and avoid liability. Current statute speaks to a requirement that doctors "act reasonably"; in terms of advanced care directives and DNR orders, this means that doctors are required to investigate whether an order or directive is factually and legally supportable. This is particularly an issue when an order comes from out of state, and a doctor must determine whether an order or directive complies with the laws of the state from which it came; this isn't possible from a practical standpoint, and so doctors are faced with either performing a procedure against the wishes of the patient, or exposing themselves to liability. He opined that [HB 442] does an excellent job of clarifying that "good faith" is what is required. MR. DAWSON offered his understanding that [Section 5] will address situations involving someone with a terminal illness who is having some sort of procedure done in order to make his/her final months more comfortable. For example, if an elderly patient has fallen and broken a hip, it doesn't mean that doctors shouldn't treat the broken hip just because the patient is suffering from a terminal illness. Under current law, however, if an anesthesiologist were to administer too much anesthesia to such a patient during surgery, for example, the anesthesiologist would not be able to correct his/her mistake if the patient has a DNR order. "Presumably people who seek medical assistance, even when they have a DNR order, want that medical assistance to succeed, and if there is a mistake or if there is something else unrelated to that [terminal] condition that needs to be corrected, then it ought to be corrected; [Amendment 1] ... permits that to happen," he remarked, noting that [the bill] also provides some additional protection for a physician honoring a DNR order from being sued for malpractice. 3:05:19 PM MR. DAWSON, in response to a question, relayed that he'd only read the parts of Mr. Kirk's article that pertained to his clients, and noted that the article contains case examples illustrating how nationally recognized cases would have fared under Alaska's Health Care Decisions Act. REPRESENTATIVE COGHILL noted that [Amendment 1] says in part that a "'health care provider' does not include a physician", and asked why that language is included. MR. DAWSON offered his understanding that [Amendment 1] is designed to prevent EMS personnel from being put in the position of having to exercise their discretion regarding DNR orders, but if one is actually a physician in the field, then he/she should have that discretion. REPRESENTATIVE GRUENBERG asked whether the bill should contain a retroactive effective date, retroactive to the date that Alaska's Health Care Decisions Act was effective. MR. DAWSON opined that such would be appropriate. REPRESENTATIVE GRUENBERG remarked that when members have a chance to read Mr. Kirk's article, they may not want every provision of the bill to be retroactive. CHAIR McGUIRE asked Ms. Tupou whether the sponsor has had an opportunity to read Mr. Kirk's article and whether he's considered including any of Mr. Kirk's suggested changes. MS. TUPOU relayed that the sponsor is familiar with Mr. Kirk's article and agrees with some of Mr. Kirk's points but not others, and that the sponsor would like to just address the issues now contained in the bill but may give future consideration to the other points raised in Mr. Kirk's article; therefore, the sponsor would not be amenable to any other amendments. REPRESENTATIVE GRUENBERG pointed out, however, that Mr. Kirk's article addresses technical changes that could be in order. MS. TUPOU reiterated that the sponsor has read that article. The committee took an at-ease from 3:11 p.m. to 3:15 p.m. 3:16:04 PM CHAIR McGUIRE, after ascertaining that no one else wished to testify, closed public testimony on HB 442. CHAIR McGUIRE made a motion to adopt Amendment 1 [text provided previously]. There being no objection, Amendment 1 was adopted. 3:16:47 PM REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 2 to add a retroactive effective date clause effective as of the effective date of Alaska's Health Care Decisions Act. REPRESENTATIVE KOTT sought clarification that such a clause would pertain to the whole bill. REPRESENTATIVE GRUENBERG indicated that that is his intention. CHAIR McGUIRE asked whether there were any objections to Amendment 2. There being none, Amendment 2 was adopted. 3:17:44 PM REPRESENTATIVE KOTT moved to report CSHB 442(HES), as amended, out of committee with individual recommendations and the accompanying zero fiscal note. There being no objection, CSHB 442(JUD) was reported from the House Judiciary Standing Committee.