Legislature(2005 - 2006)BUTROVICH 205

05/03/2006 08:30 AM Senate JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved CSHB 442(JUD) am Out of Committee
Moved CSHB SCS 190(JUD) Out of Committee
Moved CSHB 322(JUD) am Out of Committee
Heard & Held
Heard & Held
                  HB 442-HEALTH CARE DECISIONS                                                                              
8:39:06 AM                                                                                                                    
CHAIR  RALPH  SEEKINS  announced  CSHB  442(JUD)  to  be  up  for                                                               
REPRESENTATIVE BRUCE  WEYHRAUCH offered  to answer  questions for                                                               
the committee.                                                                                                                  
CHAIR  SEEKINS  informed  him that  previous  testimony  from  an                                                               
attorney  representing  the   Alaska  Trial  Lawyers  Association                                                               
suggested that  the committee add  the word "negligence"  on page                                                               
5, line  16 just  before the words  "gross negligence."  He asked                                                               
Representative Weyhrauch to comment.                                                                                            
REPRESENTATIVE   WEYHRAUCH  responded   that  the   bill  already                                                               
replaces the  words "reasonable" with  "good faith." Part  of the                                                               
reason for  that is  because the  family is  usually in  a highly                                                               
emotional state  when the  physician is  giving them  options for                                                               
the  patient, while  recognizing that  the patient  is terminally                                                               
ill. The patient  has already communicated their  desire to their                                                               
"agent" that  there be  no extraordinary  measures taken  to keep                                                               
them alive.  Often family members  insist that  every conceivable                                                               
measure be taken and so the  physician and the agent need to have                                                               
that good  faith reliance that the  advanced healthcare directive                                                               
has been specific and legally executed.                                                                                         
The intent of  the bill is not to relieve  anyone from liability,                                                               
it is  to ensure that the  healthcare provider operate in  a good                                                               
faith manner when making decisions.                                                                                             
8:43:48 AM                                                                                                                    
SENATOR GRETCHEN  GUESS recognized  that there  is not  a working                                                               
definition of "good faith" in statute  and yet there is a working                                                               
definition of "reasonable."                                                                                                     
REPRESENTATIVE  WEYHRAUCH responded  that the  working definition                                                               
of  "reasonable"  is the  same  as  "good  faith." He  said  that                                                               
"reasonable"  isn't always  a defined  term and  can't always  be                                                               
specifically  defined because  a  case will  always have  factual                                                               
SENATOR  GUESS asked  whether it  was his  opinion that  there is                                                               
enough case law to establish a standard for "good faith."                                                                       
REPRESENTATIVE WEYHRAUCH said yes.                                                                                              
JACQUELINE TUPOU  added that she  reviewed three  different cases                                                               
where "good faith" had been a  standard; it was up to the defense                                                               
to prove that there was no ulterior motive.                                                                                     
8:46:53 AM                                                                                                                    
SENATOR HOLLIS FRENCH  said from a patient's point  of view, they                                                               
generally would want  a healthcare provider to  correct any error                                                               
that they caused  through negligence and not just use  the DNR as                                                               
an "out."                                                                                                                       
REPRESENTATIVE  WEYHRAUCH asserted  the  bill would  not let  any                                                               
physician off the  hook for negligently causing  a terminally ill                                                               
patient to die before their time.                                                                                               
MS. TUPOU added  that anesthesiology is not an  exact science and                                                               
too much can  often cause a person to "flat-line."  She said that                                                               
would  be a  qualifying reason  for  the physician  to bring  the                                                               
patient back to life.                                                                                                           
8:51:27 AM                                                                                                                    
SENATOR FRENCH  asked whether this  was an emerging issue  in the                                                               
area of healthcare directives.                                                                                                  
REPRESENTATIVE WEYHRAUCH  said HB 442  was due to an  omission in                                                               
the  original  bill  and   healthcare  providers  recognized  the                                                               
omission  late  in the  process.  He  said  he  did not  want  to                                                               
introduce  HB 442  until he  knew that  enough research  had been                                                               
done and that it was necessary.                                                                                                 
SENATOR GUESS said she did  not understand the reason the sponsor                                                               
was hesitant  to add  "negligence" to the  exemptions on  page 5,                                                               
line 16.                                                                                                                        
REPRESENTATIVE WEYHRAUCH  explained his resistance was  to ensure                                                               
that the agent and the healthcare  provider act in good faith and                                                               
that they  have the comfort level  to implement the terms  of the                                                               
advanced healthcare directive.                                                                                                  
8:55:35 AM                                                                                                                    
SENATOR GUESS noted  that Section 9 doesn't have  "good faith" in                                                               
it anywhere. It says that  the immunity doesn't apply under gross                                                               
negligence   or   recklessness   or  intentional   actions.   The                                                               
discussion is whether to add  negligence and, she said, she still                                                               
didn't understand the reluctance.                                                                                               
SENATOR FRENCH  referred to Section  15 and asked the  reason for                                                               
the retroactivity to 2005.                                                                                                      
MS. TUPOU  said that  was added in  House Health,  Education, and                                                               
Social  Services   Committee  (HESS).   They  decided   that  the                                                               
liability pertaining  to the "Healthcare Act,"  should begin with                                                               
inception of the Act.                                                                                                           
8:57:44 AM                                                                                                                    
JOHN DAWSON, Partner  in the law firm Davis  Wright Tremaine LLC,                                                               
representing  Providence  Anchorage   Anesthesia  Medical  Group,                                                               
testified.  He said  the  essence of  Section 9  is  that "it  is                                                               
fundamentally unfair  to tie  a doctor's hands  with a  DNR order                                                               
and then to sue  him when his hands have been  tied." In the case                                                               
of mere  negligence, there is  a patent unfairness  in preventing                                                               
the doctor  from giving CPR yet  putting him liable for  suit. He                                                               
noted  the  retroactivity  was   added  in  the  House  Judiciary                                                               
SENATOR FRENCH  asked for clarification on  which House committee                                                               
made the amendment.                                                                                                             
MS. TUPOU stood  corrected. She said initially it  was offered in                                                               
HESS   by   Representative   Paul   Seaton   but   didn't   pass.                                                               
Representative  Max  Gruenberg  then  offered  it  in  the  House                                                               
Judiciary Committee and it was accepted.                                                                                        
9:01:17 AM                                                                                                                    
Senator Gene Therriault joined the meeting.                                                                                     
MIKE SCHNEIDER,  Attorney, testified  that the  emotional context                                                               
of  the decisions  is a  reality.  The bill  is an  institutional                                                               
disregard  of  jury trial  and  the  reasonability of  juries  to                                                               
decide when  people act reasonably,  he accused. "That is  a path                                                               
that shouldn't  be trodden." It  takes rights away  from citizens                                                               
and gives healthcare  providers more protection than  the rest of                                                               
the population. He  said he was pleased to hear  from the sponsor                                                               
that the intent  of the bill is not to  excuse the physician from                                                               
any  negligent acts  leading  up to  the  need for  resuscitative                                                               
9:04:35 AM                                                                                                                    
CHAIR  SEEKINS  closed public  testimony  and  held the  bill  in                                                               

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