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 65(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).]