Legislature(2005 - 2006)BUTROVICH 205
05/02/2006 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB414 | |
| HB190 | |
| HB258 | |
| HB442 | |
| HB258 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 414 | TELECONFERENCED | |
| += | HB 190 | TELECONFERENCED | |
| + | HB 258 | TELECONFERENCED | |
| += | HB 442 | TELECONFERENCED | |
HB 442-HEALTH CARE DECISIONS
10:22:50 AM
CHAIR RALPH SEEKINS announced CSHB 442(JUD) to be up for
consideration.
JACQUELINE TUPOU, Staff to Representative Bruce Weyhrauch,
introduced the bill. HB 442 would make a minor change to the
Health Care Decisions Act ("Alaska Act") of 2004 and would
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. The
bill would amend current statute to conform the language in the
Alaska Act to that of the Uniform Act, thus requiring a doctor
to act in "good faith" when time is critical for the patient.
The bill substitutes the word "physician" for "attending
physician." It clarifies when CPR can be used, and indicates
under what circumstances a Do Not Resuscitate" (DNR) order may
be revoked.
10:25:03 AM
SENATOR GRETCHEN GUESS asked Ms. Tupou to explain the new
additions in Section 5.
MS. TUPOU reported that was to address a specific situation,
such as a person with terminal cancer with a DNR order. She
posed a hypothetical situation where that person breaks their
hip and during anesthesia and surgery the person "flatlines."
The bill would allow for the doctor to administer CPR in that
case because he would be just "correcting his own mistake."
Section 5 identifies that in a secondary matter, and nothing to
do with the initial qualifying condition; the healthcare
provider could perform resuscitation.
SENATOR HOLLIS FRENCH asked whether there was a cleaner way to
write subsection (i).
MS. TUPOU said she thought it was relatively clear. She
suggested that a representative from Providence Alaska Medical
Center could explain it further. She added that (i) was
clarifying that a healthcare provider could perform CPR if it
has nothing to do with the initial condition and (j) says that
an emergency medical technician is not held to making that
decision.
10:28:48 AM
JOHN DAWSON, Attorney with Davis, Wright, Tremaine, LLC,
testified that he represents Providence Anchorage Anesthesia
Medical Group. He said that provision (j) under Section 5 is an
exception to an exception to an exception and the reason for
that structure is that the original exception referenced in (e)
simply says that a physician may not, for reasons of conscience,
refuse to abide by DNR orders.
In other circumstances, the physician may refuse to abide by an
individual instruction based on conscience but DNR orders were
not one of those types of instructions. Subsection (i) basically
says notwithstanding what (e) says a physician may refuse to
abide by DNR instructions if necessary to remedy complications
arising out of the physician's services. Subsection (j) is an
exception to that exception and was a request by the people in
the field who do not want to have that discretion.
10:30:54 AM
SENATOR FRENCH said for the record, people in the field
(paramedics, firefighters, police officers) are always allowed
to perform CPR on an ailing person but once the person gets to
the hospital, the DNR order kicks in.
MR. DAWSON countered that a person in the field must abide by a
DNR order as well unless an online physician indicates
otherwise.
SENATOR FRENCH asked how a person in the field would know about
a DNR order.
MR. DAWSON said there is generally a bracelet or other
identifying item on the person.
MS. TUPOU interrupted to inform the committee that Alaska
participates in the "Comfort One Program" and people wear
bracelets to make healthcare officials aware of their wishes.
10:32:28 AM
MIKE SCHNEIDER, Attorney, testified that he practices law in
Anchorage, mainly with personal injury. He said he has done very
few medical negligence cases in over 30 years in practice and
there have been about a dozen plaintiff's verdicts cases in the
history of the State and Territory of Alaska. He said the bill
was basically a "solution in search of a problem" and speculated
what the sponsor's intent was. He stated that he has never heard
of a verdict based on the kinds of liability theories that the
bill seeks to address.
10:35:18 AM
MR. SCHNEIDER criticized Section 8 and said if a healthcare
provider, through a medical screw up, makes an error that
initiates a life saving effort, that provider could choose to
allow that person to die and be immunized if that decision is
made on a "good faith basis." He took issue with deleting the
language in AS 13.52.080(a) and suggested that it lessens a
healthcare provider's responsibilities to the patient.
10:37:45 AM
CHAIR SEEKINS said the way he reads it the phrase "good faith
basis" refers to determining the validity of the advanced
healthcare directive and not in how the provider delivers the
medical services.
MR. SCHNEIDER agreed but said as he reads Section 9 it gives a
healthcare provider the ability to allow a patient to die in
order to cover up a negligent act, and under Section 8 their
interpretation is subject only to a good faith standard.
CHAIR SEEKINS said he interprets Section 9 to say if a DNR
prevents them from attempting to resuscitate a patient because
of complications, there is no criminal or civil liability. But
subsection (c) doesn't apply if the complications suffered by
the patient are caused by gross negligence or reckless actions.
MR. SCHNEIDER agreed but suggested the committee add the word
"negligence" in front of "gross negligence" on line 16.
MR. DAWSON added Section 9 begins with a premise that there is
in place a valid DNR order. A physician should not be sued if he
honors a DNR order that has been put in place by the patient, he
said. The "good faith" requirement pertains to whether the DNR
order is valid or not.
10:43:41 AM
SENATOR FRENCH asked Mr. Dawson to comment on a hypothetical
situation of a simple act of negligence that results in the
death or impairment of a patient. He asked the reason for
excluding that scenario from a DNR action.
MR. DAWSON responded:
If we were to include the exception for negligence we
would essentially swallow up the ability of a doctor
ever to comply with a DNR order. The very nature of
the Act to begin with is that we want doctors to honor
the wishes of their patients. At the same time we want
them to honor that, we don't want them to be worried
about liability when they do so. The reason why we
allow this particular scenario where you have mere
negligence is so that a doctor will not be worried
about getting sued every time that there is a DNR
order in place.
MS. TUPOU argued that Representative Weyhrauch is very aware of
the need for litigation and protecting the consumer and the bill
is not a "doctor exoneration bill." It is meant to address the
existing problem that people who have DNR's can't find doctors
who will operate on them. She contended that a doctor would
never want to perform surgery on a DNR person due to the
excessive liability.
10:47:43 AM
MR. SCHNEIDER replied, "Name one verdict. Name two claims. Ain't
there."
SENATOR GUESS said she could not formulate her response yet but
she could not support the bill on that premise.
CHAIR SEEKINS held CSHB 442(JUD) in committee.
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