Legislature(1993 - 1994)
02/18/1994 01:15 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
February 18, 1994
1:15 p.m.
MEMBERS PRESENT
Rep. Brian Porter, Chairman
Rep. Jeannette James, Vice-Chair
Rep. Pete Kott
Rep. Gail Phillips
Rep. Joe Green
Rep. Cliff Davidson
Rep. Jim Nordlund
COMMITTEE CALENDAR
HCR 28: Relating to requesting the Governor to direct the
Attorney General to undertake all available means
to have the partial settlements agreed to by the
state in Cleary v. Smith and the court orders
issued in that case that impose required
conditions of confinement and continued monitoring
and oversight of the correctional system by the
courts dissolved or modified.
MOVED OUT OF COMMITTEE WITH INDIVIDUAL
RECOMMENDATIONS
HB 323: "An Act authorizing the Bureau of Vital Statistics
to release certain information for the purpose of
organ and tissue donations."
CSHB 323(JUD) WAS AMENDED AND MOVED OUT OF
COMMITTEE WITH INDIVIDUAL RECOMMENDATIONS AND ZERO
FISCAL NOTES
HB 319: "An Act relating to the training of law
enforcement and corrections officers; to the
establishment of surcharges to be assessed for
violations of certain traffic offenses; creating
the Alaska Peace Standards Training Fund; and
providing for an effective date."
CSHB 319(JUD) WAS AMENDED AND MOVED OUT OF
COMMITTEE WITH INDIVIDUAL RECOMMENDATIONS
HB 292: "An act relating to civil actions; amending Alaska
Rules of Civil Procedure 49 and 68; and providing
for an effective date."
HEARD AND HELD FOR FURTHER CONSIDERATION AND
ACTION
WITNESS REGISTER
REP. CYNTHIA TOOHEY
Alaska State Legislature
Capitol Building, Room 104
Juneau, Alaska 99811
465-4919
POSITION STATEMENT: Prime Sponsor of HB 323
JENS SAAKVITNE, Director
Life Alaska
P.O. Box 230785
Anchorage, Alaska 99523
Phone: 562-5333
POSITION STATEMENT: Testified in favor of HB 323
JACK PHELPS, Legislative Aide
Rep. Pete Kott
Alaska State Legislature
Capitol Building, Room 409
Juneau, Alaska 99811
Phone: 465-3777
POSITION STATEMENT: Testified against portions of HB 323
PETER NAKAMURA, MD, MPH
Director, Division of Public Health
Department of Health and Social Services
P.O. Box 110610
Juneau, Alaska 99811
Phone: 465-3090
POSITION STATEMENT: Testified in favor of HB 323
LADDIE SHAW, Executive Director
Alaska Police Standards Council
P.O. Box 111200
Juneau, Alaska 99811
Phone: 465-4378
POSITION STATEMENT: Testified in favor of HB 319
DANIELLA LOPER, Committee Counsel
House Judiciary Committee
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99811
Phone: 465-6841
POSITION STATEMENT: Testified regarding HB 292
PREVIOUS ACTION
BILL: HCR 28
SHORT TITLE: GET CLEARY ORDERS DISSOLVED OR CHANGED
SPONSOR(S): REPRESENTATIVE(S)
BARNES,Phillips,Williams,Toohey,
Vezey,James,Martin,Foster,Porter,Mulder,Olberg,Green,Bunde,
Sanders,Hudson,Larson,Kott,MacLean,Hanley,
JRN-DATE JRN-PG ACTION
01/19/94 2108 (H) READ THE FIRST TIME/REFERRAL(S)
01/19/94 2108 (H) JUDICIARY
01/26/94 2159 (H) COSPONSOR(S): HANLEY
02/09/94 (H) JUD AT 01:15 PM CAPITOL 120
02/09/94 (H) MINUTE(JUD)
02/14/94 (H) JUD AT 01:15 PM CAPITOL 120
02/16/94 (H) MINUTE(JUD)
BILL: HB 323
SHORT TITLE: RELEASE OF CERTAIN DEATH CERT. INFO
SPONSOR(S): REPRESENTATIVE(S) TOOHEY
JRN-DATE JRN-PG ACTION
01/03/94 2011 (H) PREFILE RELEASED
01/10/94 2011 (H) READ THE FIRST TIME/REFERRAL(S)
01/10/94 2011 (H) HES, JUDICIARY
02/07/94 (H) HES AT 03:00 PM CAPITOL 106
02/07/94 (H) MINUTE(HES)
02/09/94 2309 (H) HES RPT CS(HES) NEW TITLE 7DP
1DNP 1NR
02/09/94 2309 (H) DP: BUNDE,VEZEY,G.DAVIS,TOOHEY
02/09/94 2309 (H) DP: B. DAVIS, NICHOLIA, BRICE
02/09/94 2309 (H) DNP: KOTT
02/09/94 2309 (H) NR: OLBERG
02/09/94 2309 (H) -2 ZERO FISCAL NOTES (DHSS,
COURT) 2/9/94
02/16/94 (H) JUD AT 01:15 PM CAPITOL 120
BILL: HB 319
SHORT TITLE: ALASKA POLICE STNDS TRAINING FUND
SPONSOR(S): REPRESENTATIVE(S) PHILLIPS,MacLean,Sanders,Kott
JRN-DATE JRN-PG ACTION
01/03/94 2010 (H) PREFILE RELEASED
01/10/94 2010 (H) READ THE FIRST TIME/REFERRAL(S)
01/10/94 2010 (H) JUDICIARY, FINANCE
01/13/94 2054 (H) COSPONSOR(S): SANDERS, KOTT
01/19/94 2113 (H) COSPONSOR(S): MACLEAN
01/24/94 2140 (H) FIRST COSPONSOR: MACLEAN
02/04/94 (H) JUD AT 01:15 PM CAPITOL 120
02/04/94 (H) MINUTE(JUD)
BILL: HB 292
SHORT TITLE: CIVIL LIABILITY
SPONSOR(S): LABOR & COMMERCE
JRN-DATE JRN-PG ACTION
04/23/93 1459 (H) READ THE FIRST TIME/REFERRAL(S)
04/23/93 1459 (H) L&C, JUDICIARY, FINANCE
09/10/93 (H) L&C AT 09:00 AM CAPITOL 17
11/22/93 (H) MINUTE(L&C)
01/27/94 (H) L&C AT 03:00 PM CAPITOL 17
01/27/94 (H) MINUTE(L&C)
02/01/94 (H) L&C AT 03:00 PM CAPITOL 17
02/01/94 (H) MINUTE(L&C)
02/03/94 (H) L&C AT 03:00 PM CAPITOL 17
02/03/94 (H) MINUTE(L&C)
02/07/94 2280 (H) L&C RPT CS(L&C) NEW TITLE 3DP
4NR
02/07/94 2280 (H) DP: HUDSON, MULDER, PORTER
02/07/94 2280 (H) NR: GREEN, WILLIAMS, SITTON,
MACKIE
02/07/94 2280 (H) LETTER OF INTENT WITH L&C
REPORT
02/07/94 2280 (H) -ZERO FISCAL NOTE (LAW) 2/7/94
02/16/94 (H) JUD AT 01:15 PM CAPITOL 120
02/18/94 (H) JUD AT 01:15 PM CAPITOL 120
ACTION NARRATIVE
TAPE 94-24, SIDE A
Number 000
The House Judiciary Standing Committee was called to order
at 2:10 p.m., on February 18, 1994. A quorum was present.
An executive session on HCR 28 was held prior to calling the
Committee to order. CHAIRMAN PORTER announced that the
committee would take action on HCR 28 as the first order of
business.
HCR 28 - GET CLEARY ORDERS DISSOLVED OR CHANGED
Number 022
REP. PHILLIPS made a motion to move HCR 28 out of committee
with individual recommendations. Without objection it was
so moved.
HCR 28 WAS MOVED FROM COMMITTEE WITH INDIVIDUAL
RECOMMENDATIONS.
Number 034
CHAIRMAN PORTER announced the committee would take up HB
323.
HB 323 - RELEASE OF CERTAIN DEATH CERTIFICATE INFORMATION
CSHB 323(JUD) am: "An Act relating to requests for
anatomical gifts and to the release of certain information
for the purpose of facilitating anatomical gifts."
Number 049
REP. CYNTHIA TOOHEY, Prime Sponsor of HB 323, referred to
the committee substitute (CS) and explained it changed one
word on page 1, line 13, deleting "statistics" and adding
"records." She gave the following statement to the
committee:
"Thank you for the opportunity to discuss HB 323. For
purposes of presentation and discussion, I would ask that
the committee adopt the CS which all members have in their
file.
"This bill would help facilitate organ and tissue donation.
Over 300 tissue and organ transplants are anticipated this
year. This includes tendon, bone, tissue, corneal, heart
valve, and bone transplants. For the families who have
donated the tissue or organs of their loved one, this can
provide great consolation for that family to know one or
several individuals have had quality of life improve because
of the donation.
"Currently, statute restricts the release of information
from death certificates in the Bureau of Vital Statistics.
In the case of organ and tissue donations, this may mean
that potential donors are lost due to delay, since time is
of the essence in harvesting the tissue.
"HB 323 would enable a bank, storage facility, or person who
handles procurement of anatomical gifts to obtain the
necessary information from the Department of Health and
Social Services (DHSS) within a time frame allowing for
successful donation.
"The information would be contained:
1. On the certificate
2. Collected by the Department for completing the
certificate or,
3. In information from other vital human records.
(The supplemental coroner's report is an example.)
"To assure the most expedient process, obtaining this
information from the medical examiner or the bureau prior to
its officially appearing on the death certificate
necessitates the broader definition. When a death occurs,
the medical
examiner is one of the first to know. The pertinent
information would consist of:
1. The name of the person who could execute the
anatomical gift.
2. The medical suitability of the potential donation.
"In other words, this information would allow the person
potentially procuring the donation to know:
1. If the tissue or organ was healthy.
2. Who to contact to obtain permission in a timely
manner to allow successful harvesting.
"The DHSS and the court system are strongly supportive of
this legislation. It has two zero fiscal notes. The
proposed CS is technical in nature and consists of changing
one word. I believe the committee received an information
sheet regarding the change, but I would be happy to address
the proposed change if the committee wishes."
REP. TOOHEY stated that JENS SAAKVITNE from Life, Alaska
(via teleconference), DR. NAKAMURA from DHSS, and CHRIS
CHRISTENSEN from the court system were there to respond to
questions, too.
Number 151
JENS SAAKVITNE, Director, Life Alaska, which is an Alaska
based nonprofit tissue bank serving Alaska, testified in
favor of HB 323. Mr. Saakvitne indicated that in 1993
Alaska had 87 tissue donors and they supplied a little over
200 tissue transplants to the state along with approximately
800 out-of-state, and some of the transplants included 40
corneal transplants, 150 tendons, a heart valve and a lower
leg bone for transplant, along with knee and shoulder
repair. Mr. Saakvitne said that of the decedents family
Life Alaska has talked to and presented the option of
donation, between 75 and (inaudible) agreed to donation, and
those that agree to donation enter into a two year
bereavement support group. He concluded that Life Alaska
would make every opportunity to serve the community of
Alaska, both as far as recipient needs and giving whatever
support they can to the decedent's family.
Number 208
JACK PHELPS, Legislative Aide, Rep. Pete Kott, testified on
behalf of himself in opposition to certain portions of HB
323. Mr. Phelps indicated he was not testifying against the
concept of organ donations; however, he shared with the
committee his qualifications for why he wants to speak on
another area of HB 232. Mr. Phelps explained that he is an
ordained minister, although he's not currently working in
that field, and he spent 15 years of his life as a minister
and was commissioned as a Lt. Colonel in Brigade Chief of
Chaplains in the Alaska State Militia and was appointed by
Governor Cowper to serve on the general staff for two years
as advisor on religious issues.
MR. PHELPS said that during those 15 years he had a number
of opportunities and the responsibility of dealing with
families of the bereaved, and his concern with HB 323 as
written is that one of its primary effects would be to allow
organ banks or storage facilities direct access to the names
of next of kin within the first 24 hours to ask them to
agree to donate parts of their beloved loved one. Mr.
Phelps indicated this is an extremely sensitive time for
these people, and it worries him what effect this type of
intrusion could have on their privacy at a time when they
are in a very vulnerable situation. He said he wanted the
committee to be aware of the fact that in current statute we
require medical personnel to speak to the next of kin and
let them know it is one of their options to donate organs
and other tissues. He concluded that it is not as if people
are not aware of this option, and it causes him a great deal
of concern to think of organ and tissue bank personnel
contacting people in their time of bereavement.
Number 317
REP. TOOHEY commented that the speaker before her had hit on
what the bill is, exactly; the object of the bill is to
allow tissue procurement to happen within a viable time.
She said if you wait for two or three days the tissue is no
longer viable. Rep. Toohey asked Mr. Saakvitne to speak to
this issue after hearing testimony from Dr. Nakamura.
Number 328
DR. PETER NAKAMURA, Director, Division of Public Health,
Department of Health and Social Services (DHSS), testified
in support of HB 323. He said they have had, not only in
the state of Alaska, but across the nation, a great deal of
difficulty in getting enough human tissue for all surgical
replacement needs. Dr. Nakamura explained that the reason
they have not been able to participate in this program much
in the past is that there is language within our legislation
that doesn't allow the release of information that would
allow the tissue program to have early access to the tissue
in time to salvage the usable tissues. Dr. Nakamura said HB
323 allows the state of Alaska and Bureau of Vital
Statistics to release the necessary information to allow
this tissue to be harvested in time.
Number 364
CHAIRMAN PORTER asked if current state law requires or
allows a medical person that is attendant at the death to
advise the next of kin of the opportunity to donate tissue.
MR. PHELPS responded that the law requires it.
REP. TOOHEY explained that she doesn't think Mr. Phelps is
aware of the time frame, and sometimes getting the
information on the death certificate takes up to four days
or longer. She said as an emergency room nurse she has
never had the opportunity to tell [the next of kin of]
someone who has died that they need to consider tissue
transplant. Rep. Toohey said it is not something the
hospital does necessarily, although it is supposed to be
policy, but to her knowledge it has never been done.
Number 399
CHAIRMAN PORTER indicated that the bill would provide that a
tissue facility would be able to have this information and
consequently make a inquiry of the next of kin. He asked if
that would be generally done in circumstances where there is
a needy recipient, or if it would be done in general terms.
Number 405
MR. SAAKVITNE replied that they do not need to tissue match
and type tissues that way. There is normally not a specific
recipient that the tissue is designated for, but there is a
waiting list, and there is a sure guarantee that if humanly
possible it would be used for transplant.
Number 412
REP. KOTT indicated that state law requires hospitals to
inquire about tissue donations, and a policy should already
be in place for hospital personnel. He asked if next of kin
are listed, and if so, what are the procedures for notifying
the next of kin.
Number 429
MR. SAAKVITNE responded that first, there are indeed
statutory requirements for all hospitals to have policies
and procedures that require donation information at the time
of a death, but they are carried out rather infrequently,
and it also doesn't address those individuals that die
outside of a hospital. He indicated that of 41 families he
spoke with over the last year and a half, 31 of those
families have agreed to some type of donation, and he has
yet to have a family for the request. Mr. Saakvitne pointed
out the statute says the coroner may release the
information, but is not required to do so, so if they start
receiving complaints from families, the coroner can stop
releasing the information.
Number 464
CHAIRMAN PORTER asked how, step by step, it would work.
Number 467
MR. SAAKVITNE replied that the coroner's office would
continue to inform him of coroner's deaths, and they would
make an assessment as far as age and medical suitability.
Next, he or another trained counselor would contact the
family and act as an information resource. He continued by
saying they go over what decisions will be taking place over
the next few days and inform them there may be an option of
tissue donation, but inform them there is no wrong decision,
and then leave a phone number and leave it to the family to
call back. Mr. Saakvitne said about half the families
immediately say donation is something they want; another 25
percent call back within a few hours; and the remainder
either don't call at all, or they call for other
information, but decide against donation.
Number 492
REP. GREEN indicated he had a number of questions and asked,
if they are short of tissue, how many people who might be
potential donors die in the hospital as opposed to
elsewhere? What is the prime age group for donors? What
assurances are there that HB 323 won't become a body parts
shop? How is the program working in other states? If the
most likely group to provide tissue is the younger
population, what happens if you can't find the next of kin
in a timely manner? Is it reasonable to expect that you
would receive the information in a timely manner?
Number 533
MR. SAAKVITNE responded that not enough people are made
aware of the tissue donation option. Although many people
may have a donor card, out of the 87 donors last year, only
four had donor cards that could be located.
Number 501
DR. NAKAMURA responded, saying as far as the number of
deaths outside a hospital, he couldn't give a figure, but
the major causes of death in the state would be cancer,
heart disease, and accidents. He continued by saying that
if you go to the healthy population, those under 45, a
disproportionate number die from accidents and violence
outside of hospitals.
Number 533
MR. SAAKVITNE indicated that more tissues can be used for
plasma surgery from younger patients, and the overall age
ranks from full term birth to 70, but age 45 or younger,
many more tissues can be used. He responded in regards to
the body shop question: of other states that have
incorporated this, about 15 states, they have a coroner
call-in system, and in all of those states it is never
mandated that the coroner has to release the information.
If families start to be abused or complaints come in, then
it becomes the moral obligation of the coroner or
departments of health to clean up their act or shut the
organization down and no longer give out information.
MR. SAAKVITNE said the only state he had personal
involvement with was Colorado. The only problem he is aware
of is that at times the coroners felt it was extra work and,
once in awhile, viewed them as a minor pain bothering them
for information. When he left there in 1989, he was unaware
of any complaints from families.
MR. SAAKVITNE then discussed the time question, and said in
some cases they will not be able to reach the families in
time to harvest tissue. Currently, there are a lot of cases
where they don't have the chance at all, and HB 323 would
probably double the number of cases where they are able to
offer the families a reasonable donation option in a
reasonable amount of time.
Number 593
REP. KOTT suggested that if hospitals were in fact following
the procedures in statute, wouldn't that take care of the
back load?
Number 610
MR. SAAKVITNE indicated that it would help, but would still
not be enough.
Number 615
REP. TOOHEY said if there is no immediate need in Alaska for
tissue, it goes to a bank in Seattle and then it is sent
everywhere in the Northwest, so the tissue does not go to
waste.
Number 630
MR. SAAKVITNE concurred and said all tissue is held for 30
days on reserve for Alaska; the exception is corneas, which
have to be used within five days. There are certain tissues
that are used 100 percent of the time in Alaska, such as
tendons, but other tissues, such as heart valves, get used
in the Northwest.
Number 657
REP. KOTT asked Mr. Saakvitne what he was doing to ensure
that he was not violating a person's religious beliefs.
Number 665
MR. SAAKVITNE responded there are no major religions that
are against organ or tissue donation; there are some
cultural beliefs with the Gypsies and certain American
Indian tribes, but no religious beliefs per se. He said,
beyond that, they never try and talk a family into it. They
simply inform them they have several options and donations
is one of them, and there is no wrong decision.
Number 670
REP. KOTT said if an individual was to carry a card at the
time of death, indicating they did not want to be a donor,
what would the subsequent action be.
Number 673
MR. SAAKVITNE replied that they would never contact the
family about donation if that was the case.
Number 675
REP. GREEN asked if Alaska was considered an importer or
exporter of tissues.
Number 683
MR. SAAKVITNE responded that Alaska is an exporter of most
tissues, but with certain things, such as corneas and
tendons, we become importers. With heart valves, we are an
exporter. He noted that within the next six months,
Providence Hospital is going to start transplanting heart
valves, rather than sending patients to Portland, and at
that point Alaska will become an importer of heart valves
also.
REP. GREEN asked what the rejection rate is for tissue.
Number 701
MR. SAAKVITNE said just about all the tissue they are
transplanting does not have blood vessels, which reduces
rejection by about 95 percent. Most of the other five
percent is taken care of by freezing or freeze drying, which
tends to destroy the immunological identity of tissues so
when they are transplanted they are not recognized as
foreign.
REP. PHILLIPS moved to adopt the committee substitute.
Hearing no objection, it was so moved.
Number 720
REP. PHILLIPS moved that the committee move CSHB 323 out of
committee with individual recommendations and zero fiscal
notes. Hearing no objection, it was so ordered.
CSHB 323(JUD) WAS MOVED OUT OF COMMITTEE WITH INDIVIDUAL
RECOMMENDATIONS AND ZERO FISCAL NOTES
Number 738
CHAIRMAN PORTER indicated the next order of business was
revisiting HB 319.
HB 319 - ALASKA PEACE STANDARDS TRAINING FUND
Number 738
REP. GAIL PHILLIPS, Prime Sponsor of HB 319, indicated that
the bill was held over from the last meeting until the issue
of collection of the funds could be resolved. She asked
Laddie Shaw to comment on that.
Number 742
LADDIE SHAW, Executive Director, Alaska Peace Standard's
Council, testified that they have resolved the collections
issue and he was available to answer questions.
Number 751
CHAIRMAN PORTER indicated there was some discussion about
the difference between the municipalities that have their
own traffic codes as opposed to others, and asked if Mr.
Shaw saw any problems there.
Number 754
MR. SHAW replied, "None whatsoever." He indicated he talked
to some municipalities that do collect on municipal code,
and with the chiefs of police and finance, and they said
collection would be pretty basic to deal with. They would
collect it every three months and write a check to the State
of Alaska.
Number 758
REP. JAMES indicated she wanted to reinstate her interest in
the funds for education to be considered for education of
auxiliary police forces that are maybe on a volunteer basis
and will not now be able to because of no available
education.
Number 764
CHAIRMAN PORTER responded that the training that would be
made available with these funds is for in-service kinds of
training, just the kind auxiliary and reserve police forces
need and can attend, and certainly would be in the purview
and benefit from HB 319.
Number 790
REP. GREEN moved and asked unanimous consent to pass HB 319
out of committee as amended, with individual recommendations
and with accompanying fiscal note. Hearing no objection, it
was so moved.
CSHB 319(JUD) WAS MOVED FROM COMMITTEE WITH INDIVIDUAL
RECOMMENDATIONS.
Number 805
CHAIRMAN PORTER announced the next order of business was HB
292.
HB 292 - CIVIL LIABILITY
CSHB 292(JUD): "An Act relating to civil actions; amending
Alaska Rules of Civil Procedure 16.1, 26, 49, 68, and 82;
and providing for an effective date."
Number 805
CHAIRMAN PORTER announced the next order of business was
HB 292, relating to civil court reform. He noted that legal
counsel to the committee was prepared to review numbered
amendments and that all members should have these numbered
amendments. He said considerable public testimony was given
in the Labor and Commerce Committee. He suggested bringing
the committee up to speed by going through amendments
adopted by the Labor and Commerce Committee. Chairman
Porter introduced Daniella Loper.
Number 807
DANIELLA LOPER, Legal Counsel, House Judiciary Committee,
began with Amendment 1. She stated the intent behind
Amendment 1 concerned a case from 1990, Lake v. Construction
Machinery, which involved an employee injured in the course
of his employment who brought damages against several third
parties. These third parties asserted as a partial defense
that the plaintiff's employer was negligent.
TAPE 94-24, SIDE B
Number 000
DANIELLA LOPER continued her discussion of Amendment 1:
Amendment 1 codifies intent so that "basically we are going
to go by, on a percentage of fault basis; and so,
tortfeasors should not be held responsible for the
negligence of an employer, and to this extent this act is
intended to overrule the case of Lake v. Construction
Machinery." She referred to page 10, line 6, of the bill
which refers to 16 regarding where the percentage at fault
should be allocated and noted that after "other persons" the
phrase "including an employer" was put in to clarify the
point.
Number 038
CHAIRMAN PORTER cited a 1988 initiative which was passed
that indicated that as a result of the process of our
initiative, responsibility should be apportioned for tort
liability, proportionately. In other words, if there were
four people who contributed to the responsibility of a
liability for an injury or property damage or something
similar, the court should apportion by whatever percentage
they determine is correct the responsibility among these
four people. The wording of the initiative was such that it
said "parties to the suit" instead of "all parties
responsible." Consequently, what was discovered was that if
you named three out of the four people in this hypothetical
situation, then that's all there would be to apportion the
responsibility between... because you didn't name this other
person and, consequently, he wasn't a party to the suit.
The specific wording of the initiative was such that there
was a loophole. This is one of the things that is being
used to close the loophole.
CHAIRMAN PORTER entertained a motion on Amendment 1.
Number 086
REP. PHILLIPS moved Amendment 1.
CHAIRMAN PORTER welcomed discussion.
Number 108
REP. NORDLUND inquired about the case cited and asked if it
was a Supreme Court decision.
Number 112
MS. LOPER replied that it was.
REP. NORDLUND asked for confirmation that the committee was
not making a decision on this specific resolution involving
the facts of the particular case. He noted that he was
unfamiliar with the case and was uncomfortable voting on an
amendment involving a case where the facts and circumstances
were unknown to him.
MS. LOPER requested clarification of Rep. Nordlund's wish --
an explanation of the case.
MS. LOPER explained that copies of the brief were in the
packet. She explained the employee injury case further.
She said an employee was hurt on the job and was compensated
by workman's compensation by the employer and wanted to
pursue litigation against the machinery's manufacturer,
Construction Machinery. She named several third parties in
the suit. Ms. Loper referred to the third parties and said
that the employer had a certain percentage of fault. She
asked, "Why should the rest of us pay 100% when the employer
has a percentage of fault?"
MS. LOPER continued, "And so... the trial judge ruled that
the employer's fault should be taken into consideration,
along with the rest of the third parties. They appealed.
It went up to the Supreme Court, and the Supreme Court took
a look at the statute, at 91780, which was part of the
initiative, and what the voters had voted on, which was a
percentage of fault basis. But the court system is sort of
strict on the way they look at it. Half of the court views
this statute as still joint and several liability. The
other half view it as a percentage at fault. And because
they say that the intent of this legislation is not very
clear, and they didn't want to override the Workers'
Compensation Act, and so basically what they have done is
said, `We're not going to take a look at the employer's
fault in this.' And so, since we are clarifying that in HB
292, and clarifying exactly what the initiative was about,
and what the voters have voted on, and that was a percentage
of fault basis, we are saying that, now we're making this
legislation clear, with clear intent. And so, therefore, if
an employer was at fault, we're going to bring it in.
Because the rest of the third parties shouldn't be held
accountable for that percentage... And so that is why in
this amendment we are saying that we're going to overrule
the case of Lake v. Construction Machinery; we are making it
clear that this is a percentage of fault basis."
REP. NORDLUND asked for clarification of effect on damaged
individuals in this particular case upon adopting the
amendment. He was told there would be none.
Number 188
REPRESENTATIVE PHILLIPS inquired, "Mr. Chairman, in view of
the fact that this is a paragraph in the findings, is the
other portion of the amendment that's made on page 10...
that one phrase then, clarifies?" She was told, "Yes, it
would clarify how the law needed to be changed."
Number 196
Amendment 1 was adopted with no objection.
Number 243
CHAIRMAN PORTER raised discussion of Amendment 2.
Number 252
MS. LOPER explained Amendment 2. "Again, we're taking... a
look at the findings and purposes section that is on page 3,
line 4. This particular section deals with asking the
Division of Insurance to compile useful information and
report back to the legislature exactly how HB 292 is going
to affect the civil justice system and the insurance
system."
MS. LOPER continued, "And so, therefore, we deleted the
phrase `[victims and where the disproportionate amount of
compensation dollars is absorbed by the system]' and deleted
health care, as well, because we're looking at the general
overall scope of the insurance systems, not just the health
care industry. And so we looked at the language
compensation dollars as absorbed by the system. We felt
that the language was very ambiguous and reflected -- and we
wanted to reflect a much more precise language and simply
just put residents of the state. So it would be reading,
basically, `accumulate additional information concerning the
cost to society of the civil justice system as it is
presently constituted by having the Division of Insurance
compile useful information and present a report to the
legislature. This information is necessary to determine
whether the civil justice and insurance systems as they are
presently constituted are fairly serving the residents of
the state.' Which is much more to clarify...
"And then, in order to reflect the same issue, we looked at
page 15, just to clean up shop on line 31, and as you can
see, the word `report'... and it's mentioned in another
issue, and that is the medical practice parameters report,
and that was just to clarify -- it's the civil justice
report.
"And, basically, what 35 does is, it just simply implements
this issue that we're stating in the findings and facts. We
clearly state it in the bill now that the Division of
Insurance shall compile information. And then, as you can
see on the third, basically the fourth issue on this
amendment... to determine if the Civil Justice System and
the Insurance System in the state are fairly serving the
residents of the state... our findings and intent are going
to mirror exactly what we want to implement in the bill."
Number 283
REP. PHILLIPS moved that Amendment 2 be adopted.
CHAIRMAN PORTER stated that Amendment 2 had been moved and
asked for discussion. An inquiry followed concerning
whether the Division of Insurance would be asked to provide
information at the conclusion of the process concerning the
effect on rates.
MS. LOPER responded that this issue makes the bill
constitutional. She said, "The courts have always looked at
this and seen the state's interest in maintaining reasonable
liability insurance... This is economic legislation...
They try and take a look at the equal protection... and the
due process challenges. And this is basically what makes
the cap on damages constitutional. Because the state is
legitimately interested in lowering insurance rates, that
connects it all."
CHAIRMAN PORTER asked if there was any objection to
Amendment 2. There being none, the amendment was adopted.
Number 307
MS. LOPER discussed Amendment 3 concerning medical practice
parameters. She said, "They've completely removed the
language that is in the bill on page 3, and as you can see,
we've proposed new language. For some background
information, we would be one of the only three states in the
Union to implement practice parameters. This clearly will
be very significant in lowering insurance rates."
Number 334
REP. PHILLIPS requested a legal definition of "practice
parameters."
Number 339
MS. LOPER responded that practice parameters defines a
physician's medical treatment in certain instances. The
State Medical Board will develop blanket practice
parameters, minimum standards physicians must follow. This
will decrease malpractice suits.
Number 355
CHAIRMAN PORTER added that the section that was had in the
bill was a little presumptuous. He said rather than be
presumptuous, maybe we ought to make sure that the medical
profession says that this is going to do what we think it's
going to do. The presumption is that medical practice
parameters will reduce defensive medicine. Defensive
medicine is something that's come to pass because of
malpractice exposure where doctors feel required to give
tests so as to preclude somebody coming back to them saying
that they failed to... omitted a test that could have
resulted in saving a life. That has driven up the cost of
medical insurance and health care costs. Chairman Porter
said the presumption is that practice parameters
establishing what tests should be given under certain
circumstances or symptoms will reduce the requirement for
defensive practice.
Numbers 392 - 413
REP. NORDLUND, CHAIRMAN PORTER, REP. JAMES and REP. GREEN
discussed the medical parameters and the way the medical
community would respond to them.
CHAIRMAN PORTER stated that the medical community was a
little happier with the newer version of the bill containing
the parameters.
There was further general discussion concerning the possible
"stickiness" of establishing guidelines or practice
parameters.
REP. GREEN expressed support for the amendment. Possible
problems concerning language and numbering were discussed.
Number 433
MS. LOPER directed questions to bill drafters.
CHAIRMAN PORTER suggested that the amendment be passed and
have the drafter appropriately number it.
CHAIRMAN PORTER moved that Amendment 3 be adopted. There
being no objections, Amendment 3 was adopted.
Number 460
MS. LOPER discussed Amendment 4. She explained Amendment 4
clarified the Statute of Limitations on health care
providers did not conflict with the time period in the
Statute of Repose.
Number 477
REP. PHILLIPS moved Amendment 4. There being no objection,
Amendment 4 was adopted.
Number 481
MS. LOPER discussed Amendment 5. She said the intent of the
amendment was to refer to injury or death as an accident.
She continued discussion and explanation of the amendment.
Number 483
CHAIRMAN PORTER remarked that Amendment 5 covers a loophole.
Number 541
Amendment 5 was moved by REP. JAMES. There being no
objection, Amendment 5 was adopted.
Number 553
MS. LOPER began to discuss Amendment 6. Discussion and
clarification amongst the representatives followed.
CHAIRMAN PORTER explained that "in the existing law, there
is a $500,000 cap on noneconomic damages. There is an
exception to that that says you can exceed it if there is
disfigurement or severe physical impairment. This is the
loophole in the $500,000 cap... With the idea of having
reasonable caps, we have taken the $500,000, left that in
place, and said, `Okay, we'll recognize that there's
something over and above that, we'll cap it at $750,000, and
we'll define what severe physical impairment is.' And
that's what this does...." He noted that though such a
measure might be viewed as "draconian," it was a far more
generous cap than others being tendered in other tort reform
bills across the country.
Number 728
REP. NORDLUND moved that Amendment 6 be adopted. Amendment
6 was adopted with the understanding that necessary clerical
and numerical modifications would be made in the text of the
amendment.
Number 735
MS. LOPER presented Amendment 7. She said a victim of any
felony, not just a Class A or unclassified felony, shall be
exempt from any caps on damages. She said the law, as
presently constituted, holds a $500,000 cap on noneconomic
damages.
Number 745
CHAIRMAN PORTER stated that by adopting the amendment, it
will allow victims of felonies to not have the caps on their
potential recovery.
Number 766
REP. JAMES moved that Amendment 7 be adopted.
Number 779
REP. NORDLUND raised the issue of parity, asking for insight
on the rationale behind the section. He said, "From the
standpoint of an injured party, if you sustain noneconomic
damages, what difference does it make if you sustained the
damages by a person who committed a felony or a person who
didn't commit a felony? He said he didn't see why
additional awards would be made to somebody just because it
was done in a crime situation."
CHAIRMAN PORTER replied, "I think it recognizes the notion
that in many cases, accidents are just that. While there is
somebody responsible for them, it is not through an
intentional act -- no one ever considered that they would be
in a position of having injured someone. In most felony
cases, or all felony cases, there is an intent to commit the
crime and there is an inherent recognition that there is a
potential for harming someone."
Number 813
After general discussion, Amendment 7 was adopted.
Number 815
MS. LOPER presented Amendment 8, dealing with periodic
payments. She said the bill would allow either party to
choose the periodic payment schedule by merely placing a
threshold of $50,000 before a party can opt to go on a
periodic payment schedule.
Number 829
There being no objection, Amendment 8 was adopted.
Number 831
MS. LOPER presented Amendment 9. She said the parties shall
submit to the court a proposal containing the periodic
payment schedule in order to be included in the court's
judgement.
CHAIRMAN PORTER clarified that this section was suggested by
the court system to cut down on the court time. The bill
provides that either the defendant or the plaintiff can
elect periodic payments.
TAPE 94-25, SIDE A
Number 000 - 196
CHAIRMAN PORTER presented an explanation of the amendment's
language and rationale. He explained it is protection for
the injured party. It is there to guarantee these payments.
Number 220 - 316
CHAIRMAN PORTER suggested the committee address Amendment 9
at greater length on the following Monday.
Discussion continued, with REP. NORDLUND expressing both
support for the intent of the bill but concern that the
settlements would be structured out of the court and the
plaintiff would not be able to participate in that
structure.
MS. LOPER interjected that a mediator would be present in
structuring this settlement between the defendant and the
plaintiff.
Number 317
CHAIRMAN PORTER proposed that the committee hear testimony
the following Monday and continue reviewing the amendments.
This was acceptable to committee members.
There being no further business, the meeting was adjourned
at 3:45 p.m.
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