SB 65-LIABILITY CONSULTING HEALTH CARE PROVIDER  1:03:28 PM CHAIR CLAMAN announced that the first 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." [Before the committee was HCS CSSB 65(HSS).] 1:03:55 PM SENATOR JESSE KIEHL, Alaska State Legislature, introduced SB 65 as prime sponsor. He said that SB 65 is a proposed tort bill pertaining to health care. He explained that health care providers regularly consult formally and informally with colleagues. He characterized the informal, uncompensated consultations as "curbside consultations" which take place both in person and telephonically. He further qualified a curbside consultation as one in which there exists no financial or business relationship between providers, and the consulted provider as having no doctor/patient relationship with the patient. He explained that a case had been brought before the Minnesota Supreme Court in which it had been ruled that a healthcare provider who had no doctor/patient relationship was required to defend his/herself against a medical malpractice claim. He stated that the effect of the ruling in the case had resulted in providers ceasing to provide uncompensated consultations or reconsidering whether to establish a doctor/patient relationship in such cases. He suggested that SB 65 would limit liability to the treating physician or provider. He added that SB 65 would further limit that liability and would not be shifted [from a treating physician] nor would it be reduced. 1:08:54 PM CATHY SCHLINGHEYDE, Staff, Senator Kiehl, Alaska State Legislature, on behalf of prime sponsor, presented a sectional analysis during the hearing on SB 65, [included in the committee packet] which read as follows: [original punctuation provided]: Sec. 1 of the bill creates a new section in AS 09.55: Sec. 09.55.552(a): Consulting physicians, osteopaths, podiatrists, advanced practice registered nurses, physician assistants, chiropractors, dentists, optometrists, pharmacists, physical therapists, and occupational therapists are not liable for providing a consultation if they meet a list of requirements that establishes the consultant was not compensated and had no doctor-patient relationship. Sec. 09.55.552(b): The health care provider cannot use the consultant's advice to reduce his or her own liability in a medical malpractice case. Sec. 09.55.552(c): Defines the health care providers and health care facilities covered by this bill 1:09:38 PM CHAIR CLAMAN introduced invited testimony. 1:09:49 PM ROBERT CRAIG, Chief Executive Officer, Alaska Heart and Vascular Institute, testified in support of SB 65. He explained that the members of the Alaska Heart and Vascular Institute were cardiologists who remain on call to treating physicians throughout the state for uncompensated consultations pertaining to cardiovascular care. He stated that the institute remained committed to provide timely and accurate medical expertise for patients under another physician's care to aid in care and transportation decisions. He stated that the alternate to uncompensated consultations would be for the consulted physician to instruct the treating physician to either refer the patient for a paid consultation or to transport the patient to the consulting physician, either of which could delay care and increase costs. He stated that the goal of the institute's physicians is to provide high quality and low-cost cardiac service to the state's healthcare providers. 1:11:39 PM} JACOB KELLY, M.D., Alaska Heart and Vascular Institute, testified in support of SB 65. He stated that he was a heart failure cardiologist at the Alaska Heart and Vascular Institute and had been practicing medicine and providing consultation during his four years in Alaska. He explained that requests for consultation, occasionally in excess of 20 per day, occurred during all hours and from all areas of the state. He explained that physicians calling for consultations represent a variety of different practitioners who may need consultation to aid the safety and comfort of their patients. He explained that, should physicians become wary of the risk of litigation, inappropriate and costly requests for [patient] transfers and care may occur for common conditions. He suggested that allowing for curbside consultation is helpful to all fields of medicine to increase the safety and quality of all local patient care. 1:16:04 PM REPRESENTATIVE EASTMAN stated his support for immunity for the professions listed in the bill, and asked whether family therapists, acupuncturists, ophthalmologists, and massage therapists, among others should also receive immunity should SB 65 pass. SENATOR KIEHL answered that it had been considered to use the term "health care providers," and a more specific list had been determined to be most appropriate. He added that ophthalmologists are licensed physicians and would be included. He further explained that the immunity granted with the passage of SB 65 pertained to the scope of practice, potential risk to patients, and the ability of the treating health care professional to independently evaluate and analyze the advice that he/she is given [during a curbside consultation]. He stated that the list had been adjusted through the hearing process and includes professions that he deemed appropriate, and that immunity granted should be carefully considered when making tort reform. 1:18:50 PM REPRESENTATIVE EASTMAN noted that occupational therapists are listed in the bill; however, family therapists are not. He recalled that there had been a situation in which a supervisor at a youth detention facility was unable to be prosecuted for a sexual relationship with a minor due to [the category of the detention officer] not being included in the list of those who may be prosecuted. He asked whether a court would be likely to rule that the immunity as proposed in SB 65 would not apply to family therapists. 1:19:55 PM MS. SCHLINGHEYDE answered that courts in Alaska have ruled that medical malpractice cases are treated differently than other cases of alleged negligence. She referred to the ruling in Smith vs. Radecki in which it was established that a special relationship exists between a physician and a patient. She further explained that other cases of alleged negligence are evaluated on a "foreseeability" test. She added that individuals not listed in SB 65 would still be subject to potential liability for negligence under foreseeability and duty of care. 1:20:46 PM REPRESENTATIVE EASTMAN asked why a family therapist was not included in the list of professions. 1:21:05 PM CHAIR CLAMAN offered that the categories of professions listed in SB 65 specifically relate to medical malpractice and that a family therapist would never fall into that category. 1:21:24 PM SENATOR KIEHL explained his intent was to address liability among physical health practitioners and not mental health practitioners, the dichotomy of which exists elsewhere in statute. 1:21:49 PM CHAIR CLAMAN referred to a case in the State of Minnesota [included in the committee packet] entitled "SB 65 Additional Document - Warren v. Dinter Supreme Court of Minnesota April 17, 2019 (Distributed by HJUD Committee)," in which the court was specific in its ruling that the case did not pertain to curbside consultations. He asked why the perception following the ruling was that it did pertain to curbside consultations. 1:22:22 PM SENATOR KIEHL explained that, while a dissenting opinion in the ruling did not have precedential value, the matter of the ruling having no pertinence to the curbside consultations was a controversial one. He stated that the ruling having pertinence to cases in which there did not exist a doctor/patient relationship likely contributed to the perception that there exists a risk in consultation when no such relationship exists. He suggested that HB 65 would further define boundaries which remained unclear following the ruling in the State of Minnesota. 1:23:28 PM CHAIR CLAMAN postulated that the ruling in the Minnesota case, including case precedent in Alaska, had taken into consideration the foreseeability of harm and he asked why the ruling in the State of Minnesota would have an effect different from those upon which the courts in Alaska had already ruled. 1:24:09 PM MS. SCHLINGHEYDE stated that the ruling in Smith vs. Radecki held that a doctor/patient relationship must exist [to allow for litigation for malpractice] and that footnotes in the case address but do not fully explore fact patterns which may result in the existence of a doctor/patient relationship. She noted that another case in the State of Rhode Island that held a similar ruling to Smith vs. Radecki did not offer any additional clarity on when the doctor/patient relationship exists. 1:24:55 PM REPRESENTATIVE VANCE asked at what point a doctor/patient relationship exists in telehealth consultations. MS. SCHLINGHEYDE answered that telehealth consultations would be categorized the same as in person visits with the passage of SB 65, and that the question of malpractice liability exists when a provider consults another provider. She added further that legal malpractice precedents existed in which liability to an attorney could occur despite a client not having formally retained the attorney. She stated that, in cases of medical malpractice liability, the precedent of the legal liability could be applied similarly to medical malpractice liability. 1:26:54 PM SENATOR KIEHL added that SB 65 proposed to broadly define that a doctor/patient relationship shall exist if a doctor is paid by the patient, and immunity would not apply. 1:27:19 PM REPRESENTATIVE CLAMAN recalled, in reference to Representative Vance's line of questioning, that, during the COVID-19 pandemic, health care providers had encountered difficulties in providing care via telehealth and in establishing a doctor/patient relationship due to travel restrictions, and telehealth consultations had resulted in doctor/patient relationships and would not be considered the curbside consultation that was contemplated in SB 65. 1:28:04 PM REPRESENTATIVE VANCE asked whether, similar to attorneys providing consultations pro-bono, doctors have an equivalent, uncompensated consulting relationship with certain patients. SENATOR KIEHL stated that SB 65 pertained only to uncompensated consultations between health care providers and not to those between physicians and patients. 1:29:40 PM REPRESENTATIVE EASTMAN asked, should SB 65 pass, what other professions may be affected, such as immunity for structural engineers such as in the case of a building collapse. SENATOR KIEHL answered that tort statutes treat medical malpractice differently than other cases involving malpractice. He added that there exist several court rulings in Alaska which address medical malpractice as separate from other forms of malpractice. 1:31:18 PM CHAIR CLAMAN opened public testimony on HCS CSSB 65(HSS). After ascertaining that there was no one who wished to testify, he closed public testimony. 1:32:13 PM The committee took a brief at-ease. 1:32:59 PM CHAIR CLAMAN announced that HCS CSSB 65(HSS) was held over.