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HB 472: "An Act relating to claims for personal injury or wrongful death against health care providers; and providing for an effective date."

00 HOUSE BILL NO. 472 01 "An Act relating to claims for personal injury or wrongful death against health care 02 providers; and providing for an effective date." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. The uncodified law of the State of Alaska is amended by adding a new section 05 to read: 06 LEGISLATIVE FINDINGS AND INTENT. (a) The legislature finds that the 07 national medical malpractice crisis continues to affect the state, and patient access to 08 physicians will be dramatically affected if physicians cannot afford, or obtain at any price, 09 malpractice insurance. 10 (b) It is the intent of this Act to 11 (1) alleviate a medical malpractice insurance crisis that the legislature believes 12 will, if not corrected, threaten the quality of the state's health care; the legislature believes that 13 the continuing availability of adequate medical care depends directly on the availability of 14 adequate insurance coverage, which in turn operates as a function of costs associated with

01 medical malpractice litigation; the legislature believes that decreasing the limits on 02 noneconomic damages will help to contain the costs of malpractice insurance by controlling 03 damages and will significantly help to provide for a stable malpractice insurance market for 04 health care providers, thereby maximizing the availability of medical services to meet the 05 state's health care needs; 06 (2) modify the decisions of the Alaska Supreme Court in Marsingill v. 07 O'Malley, 58 P.3d 495 (Alaska 2002) and Korman v. Mallin, 858 P.2d 1145 (Alaska 1993); 08 and 09 (3) clarify the law of informed consent in medical malpractice cases. 10 * Sec. 2. AS 09.55.548 is amended by adding new subsections to read: 11 (c) In an action to recover damages for personal injury or wrongful death 12 based upon the provision of services by a health care provider, damage claims for 13 noneconomic losses shall be limited to compensation for pain, suffering, 14 inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment 15 of life, loss of society and companionship, loss of consortium, injury to reputation, and 16 other nonpecuniary damage. 17 (d) Notwithstanding AS 09.17.010, the damages awarded by a court or a jury 18 for claims allowed under (c) of this section, including a loss of consortium or other 19 derivative claim, arising out of a single injury or death may not exceed $250,000 20 regardless of the number of health care providers against whom the claim is asserted 21 or the number of separate claims or causes of action brought with respect to the injury 22 or death. 23 (e) The jury may not be informed about the limitation on damage claims for 24 noneconomic losses in (c) of this section, but an award for noneconomic losses in 25 excess of $250,000 shall be reduced before the entry of judgment. 26 (f) Multiple injuries sustained by one person as a result of a single incident 27 shall be treated as a single injury. 28 * Sec. 3. AS 09.55.556 is amended to read: 29 Sec. 09.55.556. Informed consent. (a) A health care provider is liable for 30 failure to obtain the informed consent of a patient if the claimant establishes by a 31 preponderance of the evidence that the provider has failed to inform the patient of the

01 common risks and reasonable alternatives to the proposed treatment, [OR] procedure, 02 or course of action, and that, but for that failure, the claimant would not have 03 consented to the proposed treatment, [OR] procedure, or course of action. 04 (b) It is a defense to any action for medical malpractice based upon an alleged 05 failure to obtain informed consent that 06 (1) the risk not disclosed is too commonly known or is too remote to 07 require disclosure; 08 (2) the patient stated to the health care provider that the patient would 09 or would not undergo the treatment, [OR] procedure, or course of action regardless 10 of the risk involved or that the patient did not want to be informed of the matters to 11 which the patient would be entitled to be informed; 12 (3) under the circumstances, consent by or on behalf of the patient was 13 not possible; or 14 (4) the health care provider, after considering all of the attendant facts 15 and circumstances, used reasonable discretion as to the manner and extent that the 16 alternatives or risks were disclosed to the patient because the health care provider 17 reasonably believed that a full disclosure would have a substantially adverse effect on 18 the patient's condition. 19 * Sec. 4. AS 09.55.556 is amended by adding new subsections to read: 20 (c) A health care provider, when informing a patient of the common risks and 21 reasonable alternatives to a proposed treatment, procedure, or course of action, shall 22 disclose a known risk of death or serious bodily harm and explain the most common 23 serious complications that may occur. A health care provider is required only to 24 disclose that information that a skilled health care provider of the same or reasonably 25 similar specialty would disclose under similar circumstances. 26 (d) A health care provider is not liable for advice given to a patient by 27 telephone, radio, electronic mail, telemedicine, or other electronic communication if 28 the advice is that the patient seek further care or evaluation at the health care 29 provider's office, a clinic, an emergency room, or a hospital, and the patient elects not 30 to follow that advice. 31 * Sec. 5. The uncodified law of the State of Alaska is amended by adding a new section to

01 read: 02 APPLICABILITY. This Act applies to suits against health care providers initially 03 filed on or after the effective date of this Act. 04 * Sec. 6. This Act takes effect July 1, 2004.