(H.418, H.421, S.766, S.808) And Other Medical Liability
Legislation
Before The Joint Committee On Judiciary
Physicians' criticisms about our medical liability system have
long been loud and clear: it leads to frivolous lawsuits,
undermines patient safety, reduces access to care, creates a
"culture of silence" between physicians and patients, burdens
doctors with high premiums and encourages defensive medicine,
driving health costs higher. In short, the system is dysfunctional
and ill serves patients, physicians and our health care delivery
system.
Six years ago, The Joint Commission, the independent nonprofit
organization that sets standards and accredits health care
organizations in the U.S., said: "There is in fact a fundamental
dissonance between the medical liability system and the patient
safety movement. The latter depends on the transparency of
information on which to base improvement; the former drives such
information underground. As a result, neither patients nor health
care providers are well served by the current medical liability
system."
The good news is we can fix the system through a DA& O model
- disclosure, apology and offer. H.418, H.421, S.766, S.808,
"An Act Relative to Improving Patients' Access to Timely
Compensation" would make statements by health care providers of
regret, apology, or concern regarding an unanticipated outcome
inadmissible as evidence in any subsequent legal proceeding.
It would also require plaintiffs to provide approximately six
months notice before filing a claim for medical
malpractice.
The DA&O model includes four elements that studies show are
the priorities of patients experiencing harm: setting a "baseline
culture of safety" to prevent the recurrence of adverse events;
full disclosure of what happened and why; and for avoidable events,
an apology and a fair and timely offer of compensation. Such a
system will not deny patients the right to bring a legal action,
but would make tort claims a last resort.
One goal of the DA&O approach is to reduce physicians' fear
of being sued, which has been a consistent finding in local and
national research examining the practice of defensive
medicine.
The Joint Commission has recognized this effect as well: "The
stifling specter of litigation results in the under-reporting of
adverse events by physicians and avoidance of open communications
with patients about error. … An unintended consequence of the tort
system is that it inspires suppression of the very information
necessary to build safer systems of health care delivery."
Interestingly, a recent study demonstrated that the fear of
lawsuit influences even medical students and residents
practices. A summary of that study is attached to this
testimony, but briefly, based on a cross-sectional survey of
fourth-year medical students and third year residents in 2010, the
authors concluded that "medical trainees reported frequently
encountering defensive medicine practices and often being taught to
take malpractice liability into consideration during clinical
decision making."
Last July, the Massachusetts Medical Society and Beth Israel
Deaconess Medical Center received a planning grant from the Agency
for Healthcare Research and Quality - part of the president's
Patient Safety and Medical Liability Initiative - to create a
roadmap to advance a DA&O model in the Commonwealth.
With BIDMC as lead investigator, representatives from all key
stakeholder groups were interviewed, including physicians,
attorneys, legislators, public officials, patient safety experts
and patient advocates. They were asked to identify obstacles in
implementing such a model, as well as appropriate strategies to
overcome those obstacles. Their responses were encouraging and
consistent with experience elsewhere.
The University of Michigan Health System, for example, has
proven the value of this approach. Within six years of establishing
such a program in 2001, UMHS had reduced its annual claims from 262
to 73 and its open cases from 300 to 80. The average time to
resolve cases dropped from 20 months to eight months, with
transaction expenses cut from $48,000 to $20,000 per case. Court
cases were reduced more than 90 percent, and incident reporting -
critical to improving patient safety - multiplied nearly ten fold.
Surveys, including a survey of plaintiffs' attorneys, have
demonstrated overwhelming satisfaction with the program.
Change doesn't come easily, however, and stakeholders
interviewed for the MMS/BIDMC project identified several barriers
to the DA&O approach. Discomfort with disclosure and
apology exists on the part of both physicians and hospitals. Small
and rural hospitals may lack the resources to enact such programs.
Attorneys on both sides may not believe a new model will benefit
their clients.
Insurers have concerns about potential negative economic impact
and cases involving multiple defendants who are covered by more
than one company. The current charitable immunity law in the
state, limiting hospital liability to $20,000, may make physicians,
seeing themselves as the "deep pocket" targets, reluctant to
participate.
Additional obstacles include the lack of "enabling legislation"
to protect apologies from being used in lawsuits and provide for a
mandatory pre-litigation period to complete the DA&O process
and for sharing of pertinent medical records with all involved
parties.
These concerns are understandable but not insurmountable, and
our research led us to conclude that the DA&O model holds wide
appeal among stakeholders in Massachusetts. They believe it has
potential to serve patients better, reduce legal costs and risks,
improve the culture within hospitals and enhance patient safety.
Significantly, the most often cited advantage was ethical and
professional considerations: that it's simply the right thing to
do.
It is time for a better way to serve patients and improve
patient safety. We believe the status quo is unaffordable,
unsustainable and undesirable, and we invite all stakeholders to
join us in fixing a system long overdue for reform.
The high cost of defensive medicine is a significant factor in
Massachusetts' efforts to address healthcare cost
containment. If we are going to get serious about health
reform, it must include measures to facilitate DA&O. The
physician community was pleased that Governor Deval Patrick
included such DA&O measures in his proposed healthcare cost
containment bill, HB1849, "An Act Relative to Improving the Quality
of Health Care and Controlling Costs by Reforming Health Systems
and Payments." That bill is now before the Health Care
Financing Committee. The MMS has been actively discussing
DA&O with that committee, and are pleased to report that so
far, the discussions have gone well and we are hopeful that the
language will be included in that committee's cost containment
proposal.
The MMS would also like to be recorded in support of the
following bills the committee has before it today that would reduce
the cost of defensive medicine and improve patient safety and
access to care:
- H.465, "An Act Relative To EMTALA Providers"
would grant qualified civil immunity to physicians, nurses, and
other healthcare professionals who provide emergency medical
services in compliance with the Emergency Medical Treatment and
Active Labor Act (EMTALA) or as a result of a disaster, except in
the case of willful or wanton misconduct or reckless
disregard.
- H.467/S.701, "An Act Relating to Liability of Health
Professionals in Emergency Response" would protect
physicians and nurses from civil suits when they volunteer or are
called upon to assist during a pandemic or other health
emergency.
- H.1300, "An Act to Improve Quality, Encourage Peer
Review and Reduce Costs in Health Care" would extend the
same statutory framework for peer review which currently exists in
hospitals to new entities such as ACO's; would eliminate the
statutory four percent premium increase on interest paid on
liability claims against healthcare providers; would prohibit
liability claims from being brought against healthcare providers in
situations where the adverse outcome the patient experienced was
likely to have occurred regardless of the quality of the care
provided.
- H.1301, "An Act Relative to Patient Care
Access" would increase reporting requirements for
liability insurers; allow future sources to be included as evidence
of collateral sources; require expert witnesses in actions against
physicians to be board certified in the same specialty as the
defendant physician; grant the Board of Registration in Medicine
authority to review the testimony of expert witnesses from a
clinical perspective as to the standard of medical care; allow for
periodic payments of awards over $50,000; tie prejudgment interest
rates to Treasury Bills rates; and eliminate joint and several
liability.
- H.1302, "An Act Relative to Expert Witnesses in Actions
for Medical Malpractice" would require expert witnesses in
actions against physicians to be board certified in the same
specialty as the defendant physician; would grant the Board of
Registration in Medicine authority to review the testimony of
expert witnesses from a clinical perspective as to the standard of
medical care.
In conclusion, the MMS feels strongly that cumulatively, the
above legislation will go a long way towards improving the
physician practice environment in Mass, reduce the cost of
defensive medicine, and help to reduce the cost of our healthcare
delivery system in Massachusetts. To that end, we urge the
Judiciary Committee to report these bills out of committee
favorably, and support the physician community's efforts to include
the issue of defensive medicine in the upcoming payment reform
deliberations.
