The Massachusetts Medical Society is a professional association of over 23,000 physicians, residents, and medical students across all clinical disciplines, organizations, and practice settings. The Medical Society is committed to advocating on behalf of patients, to give them a better health care system, and on behalf of physicians, to help them provide the best care possible. To that end, the MMS wishes to be recorded in support of H.2514, An Act Relative to the Definition of Disclosure, Apology and Early Offer Programs.
When a patient files a claim against a physician, the toll it can take on the patient and the physician, including on their practice, is profound. On average, it takes about five and a half years for a medical malpractice case to come to a complete resolution in Massachusetts. In 2012, Massachusetts passed a proactive model of disclosure, apology and offer (“DA&O”) (MGL Chapter 233 Section 79L) and a “cooling off” period before a patient can file a claim (MGL Chapter 231 Section 60L). The DA&O model is meant to strip away the long standing “deny and defend” culture, and encourage honesty and transparency between health care providers and patients. The DA&O approach benefits patient safety by encouraging open discussion of error, leading to improved reporting and deeper understanding of safety risks.
The DA&O model is designed to help resolve medical malpractice cases by allowing healthcare professionals and institutions and their insurers to disclose to patients and families when unanticipated adverse outcomes occur; investigate and explain what happened; establish systems to improve patient safety and prevent the recurrence of such incidents; and, where appropriate, apologize and offer fair financial compensation before a patient resorts to legal action.
More specifically, under the DA&O model, when unanticipated adverse outcomes occur, patients and their families are provided full disclosure of what happened, what it means for the patient medically, and what will be done to prevent the error from reoccurring. Physicians and health care organizations are given the opportunity to apologize without fear of their words being later used against them in court. Organizations work with their liability insurers to give patients a fair and timely offer of financial compensation when appropriate. By giving patients the opportunity to receive transparent information and prompt financial recourse, the DA&O model has successfully reduced the time for resolution of adverse medical outcomes and promotes improved patient safety.
H.2514 would expand on the existing DA&O law. Section 1 of this bill would define the DA&O program within the Board of Registration in Medicine as “a program implemented by a physician or healthcare organization where an unanticipated outcome occurs, the incident causing the occurrence is investigated and patients and families are provided a full disclosure of what happened and what will be done to prevent a reoccurrence of the incident and to improve patient safety, the physician and healthcare organization are given the opportunity to apologize and where appropriate, their liability carrier offers a fair and timely offer of compensation.” Currently there is a statutory reference to these programs but there is no definition of such programs.
Section 2 amends provisions relative to medical malpractice insurers and risk management organizations requirements to report malpractice claims to the Board by adding in the definition of DA&O above and to exempt final judgments and settlements made as part of the DA&O program from such reporting requirements, absent a determination of substandard care rendered on the part of the physician, and final dispositions not resulting in payments. This language would be consistent with existing statutory language adopted in Chapter 224 of the Acts of 2012, as noted above, and clarifies that these incidents are not reportable to the Board.
The MMS urges the Committee on Public Health to report H.2514 out of committee favorably.
View a PDF version of this testimony here.
