HB 250-MEDICAL MALPRACTICE ACTIONS  CHAIR KELLER announced that the next order of business would be HB 250, "An Act making an expression of apology, responsibility, liability, sympathy, commiseration, compassion, or benevolence by a health care provider inadmissible in a medical malpractice case; requiring a health care provider to advise a patient or the patient's legal representative to seek legal advice before making an agreement with the patient to correct an unanticipated outcome of medical treatment or care; and amending Rules 402, 407, 408, 409, and 801, Alaska Rules of Evidence." REPRESENTATIVE GRUENBERG moved to adopt CSHB 250(HSS) 28LS0967\P as the working document. There being no objections, Version P was before the committee. 1:35:24 PM ERIKA O'SULLIVAN, Staff, Representative Kurt Olson, Alaska State Legislature, offered the following statement: My named is Erika O'Sullivan, Staff to Representative Kurt Olson. Before you today is HB 250, "An Act making an expression of apology, responsibility, liability, sympathy, commiseration, compassion, or benevolence by a health care provider inadmissible in a medical malpractice case; requiring a health care provider to advise a patient or the patient's legal representative to seek legal advice before making an agreement with the patient to correct an unanticipated outcome of medical treatment or care; and amending Rules 402, 407, 408, 409, and 801, Alaska Rules of Evidence." Before I get into the presentation of the bill, I would like to acknowledge that Mr. Mike Haugen, the Executive Director of the Alaska State Medical Association is online, as is Ms. Megan Wallace from [Legislative Legal Services], and hopefully Mr. Doug Wojcieszak, the author of Sorry Works, will be attempting to call in, but he is on the East Coast and has some prior commitments so we'll see if we can get him online as well. So they will be available to testify or answer questions. We'll start by addressing the intent of the bill and then go into an explanation of changes. House Bill 250, also known as the "I'm sorry" bill, would render expressions of apology or sympathy by a health care provider to a patient related to an unanticipated outcome of treatment inadmissible as evidence in a malpractice case. This is similar to legislation that has passed in over 30 states. As you saw in your bill packets, there is a state-by-state breakdown of the legislation in a document assembled by the American Medical Association. As addressed in the sponsor statement, the bill is intended to clear up the gray area which now exists between apologies and admissions of neglect, and to improve doctor/patient relationships, especially in cases ending in a less than favorable outcome. Unfortunately, health care providers often cut off communication after adverse events, which can lead to anger and the perception that there is a lack of caring, or that a mistake was made even if in reality no error occurred. It is not negligence but rather a failure in communication between the provider and patient that often results in malpractice lawsuits. This bill will by no means prohibit malpractice lawsuits, but to quote Bioethicist Arthur Caplan, whose full interview you saw in your bill packets, "You can talk about your feelings without having that held against you or being the trigger to a lawsuit." This legislation will enable health care providers to better fulfill their moral and ethical responsibilities to patients and their families for expressions of compassion and sympathy without fear of retribution in the form of a lawsuit. And, I can now go into an explanation of the changes in Version A to Version P, if that is what the committee is interested in. Okay. 1:38:09 PM So, the changes from the original bill version to the version you see in front of you, Version P, are as follows: on page 1, line 1, of the bill title the word liability was deleted. It was also deleted under Section 1(a) on page 1, line 12, and under Section 2(1) on page 3, line 6. The sponsor felt that including the word liability undermined the intent of the bill and that an expression of liability was in fact closer to an admission of negligence and should not necessarily be excluded in the civil case or arbitration. Under Section 1(a) on page 2, line 14, subsection (5) was added. And, this subsection was added with the intent of closing a potential loophole should an indirect offer to compromise, write off, or furnish payment occur. Under Section 1(a) page 2, line 18, subsection (b) was added. And, this subsection, basically, the sponsor felt this was necessary to clarify that if a statement prefaced by or made in conjunction with an admission of negligence or liability be subject to additional scrutiny and not necessarily be deemed inadmissible. On page 3, line 7, of the Section 09.55.545, the word "to" was deleted and "in writing that the patient or patient's legal representative may" was added. This addition of "in writing" remedies a potential proof problem; it was something that was brought forth by co-sponsor Representative Gruenberg, so this way everyone has their bases covered, everyone is informed of their rights, and changing the word "to" to the word "may" again insured that patients or their representatives were made aware of their rights but this was not a directive to seek legal counsel. So again, making aware versus a directive. 1:40:11 PM And finally, under Section 4, page 4, line 4, the CONDITIONAL EFFECT was amended to include Section AS 09.55.545. This was basically a language cleanup because in the original bill only AS 09.55.544 would require a 2/3 majority to take effect, and this left open the possibility that should the bill pass with a simple majority that one section would be added and the other section would not. So, this was to ensure that those sections were added. 1:41:19 PM REPRESENTATIVE GRUENBERG questioned if there is a technical difference between an "admission" and a "statement against interest," and he requested the citation for the two issues in the Rules of Evidence. 1:42:14 PM MEGAN WALLACE, Attorney, Legislative Legal Counsel, Legislative Legal and Research Services, Legislative Affairs Services, explained that an admission is considered not hearsay under Alaska Rules of Evidence 801, and a statement against interest is an exception to the Hearsay Rules under Alaska Rules of Evidence 804. 1:43:12 PM REPRESENTATIVE GRUENBERG surmised that located on page 2, lines [20-22], are expressions of sympathy that are inadmissible, but if it is legally an admission [of liability] that is admissible. He suggested the language be changed to "an admission or a statement against interest," since they are legally two different [issues]. 1:44:24 PM MS. WALLACE said that HB 250 does not define admission as only an admission under Alaska Rules of Evidence 801, and she thought it might clarify whether the statement is construed as an admission or a statement against interest. She opined that the legislature can't determine every statement that this rule will apply to as to whether a court would construe it to be an admission or just a statement against interest. She said that admission of liability or negligence is just a general term, and it was not intentionally meant to be constrained to the definition of admission by party opponent under Alaska Rules of Evidence 801. REPRESENTATIVE GRUENBERG, as co-sponsor, said they would take a few days to look at this issue, as a sharp lawyer might say he or she is not offering this as an admission, but a statement against interest, and that is not the intention of HB 250. He expressed that he thinks it is a very good bill. CHAIR KELLER agreed, and he said that the fact that it is law in over 30 tells us that most of these questions have probably been vetted many times. "So we shouldn't have a whole lot of trouble getting the bugs out of it," he added. 1:47:19 PM REPRESENTATIVE LYNN noted his understanding about a doctor telling a relative of someone who passed away that they are sorry for their loss and they have his or her sincerest sympathy, but how would HB 250 address a doctor saying "I'm really sorry I left the sponge in your lungs?" He asked if that would be admissible evidence. MS. O'SULLIVAN advised that the addition of subsection (b) [page 2, lines 18-22] was attempted to address that concern exactly. There is precedence in 20 other states where similar subsections exist to clarify that if an admission of negligence is made in conjunction with an apology, without expression of benevolence, that that statement is subject to additional scrutiny. 1:49:10 PM REPRESENTATIVE GABRIELLE LEDOUX asked for the purpose of HB 250, because a statement of apology, sympathy, commiseration, or compassion has nothing to do with a statement of liability. She questioned why it would be introduced as the plaintiff would not introduce it to make the doctor look good, "if all you're talking about is if the doctor said, 'I'm really sorry this happened.'" 1:51:12 PM MS. O'SULLIVAN responded that there is a strong precedence for these bills in other states as members of the medical community have expressed it feels like there is a gag order on them in that they cannot communicate effectively with their patients; they feel hindered by the fear of lawsuits. She opined that HB 250 attempts to get the conversation going and stop lawsuits before they happen. She then referred to the Journal of Health & Life Sciences Law contained within each member's packet on page 133-134, wherein a survey was performed and 37 percent of respondents said that if there had been an apology or explanation of what had happened that they would not have sued. These laws are an important component in the bigger picture of malpractice reform, and she explained that she has spoken with doctors and their representatives and they feel HB 250 is necessary. Ms. O'Sullivan deferred to the Executive Director of the Alaska State Medical Association [Mike Haugen] to speak in more detail. 1:52:20 PM REPRESENTATIVE LEDOUX speculated that [physicians] may be hamstrung by the actual statute, or they may be hamstrung because their insurance company gives them strict orders to keep their mouths shut. 1:55:23 PM MIKE HAUGEN, Executive Director, Alaska State Medical Association, stated that the Alaska State Medical Association supports HB 250. Physicians feel it should lead to improved communications between patients and physicians, and it should lessen the chance for miscommunication which results in fear of litigation, he opined. 1:56:09 PM CHAIR KELLER announced HB 250 was set aside.