Medical Malpractice News from Massachusetts

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New Mass. law changes malpractice procedures
By Shannon Young, Associated Press | Aug 14, 2012 04:38 PM

Massachusetts doctors who make medical errors while treating patients are now required to disclose their mistakes and are allowed to apologize without facing lawsuits under a new health care law that overhauls the state’s approach to medical malpractice cases.

Physicians and attorneys have both expressed support for the changes, saying they will help reduce unnecessary lawsuits and improve patient safety.

The changes, which were included in high-profile legislation recently signed by Gov. Deval Patrick to reduce health care costs, include establishing a 182-day “cooling-off’’ period as both sides try to reach a settlement, requiring the plaintiff and defendant to exchange information and allowing health care providers to acknowledge making a mistake without it being used as an admission of liability.

Additionally, it will increase the maximum amount of compensation for patients who are legitimately injured by a non-profit hospital and not a doctor or nurse from $20,000 to $100,000.

It also includes a provision to create a task force to study the overuse of medical testing, as well as “defensive medicine,’’ where doctors often prescribe excessive tests for patients in an effort to avoid malpractice lawsuits.

Recently, the Massachusetts Medical Society, Massachusetts Bar Association and Massachusetts Academy of Trial Attorneys issued a joint statement praising the law for reaching an “unprecedented’’ agreement amongst the groups.

In discussions that began last fall, the three groups worked to hash out differences and produce compromise legislation that would improve medical malpractice processes by focusing on patient safety.

Dr. Alan Woodward, the former president of the Massachusetts Medical Society, said he believes the law’s provision of requiring doctors to disclose mistakes will also go a long way to improve patient safety. He said previously, doctors fearing retribution would underreport or not report medical errors.

Woodward said a tradition of fear has been built up where physicians are told by their attorneys that they cannot discuss medical malpractice lawsuits with anyone, including their spouses or partners.

He said the previous way of dealing with medical malpractice lawsuits created negative experiences for both doctors and their patients, and that the new law will improve safety as physicians will be able to admit their mistakes, and prevent them in the future.

“If you take the fear out of the system…then you get people to stop practicing defensive medicine and to start practicing evidence-based medicine,’’ Woodward said.

Meanwhile, Jeffrey Catalano, vice president of the Massachusetts Bar Association, said he is optimistic that the new changes will encourage cases to resolve in a more of a timely and just fashion than in the past.

But, Catalano said there needs to be a “good faith effort’’ on both sides, particularly during the cooling-off period, to ensure that pre-litigation discussions are meaningful and not just another added delay.

He said while it is too early to predict what the effects of these changes will be on medical malpractice lawsuits, he is optimistic that the changes “will do a lot for patient rights and patient safety.’’

According to data from the Massachusetts Superior Court system, 485 medical malpractice cases were filed in 2011. The state does not track how many of those cases were won by plaintiffs or how much they received in compensation, said Supreme Judicial Court spokeswoman Joan Kenney.