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On April 18, 2012, a coalition of seven Massachusetts hospitals, physician groups, and patient groups released a report describing their initiative to address their proposed medical malpractice reform measures in Massachusetts. Their report, entitled “A Roadmap for Removing Barriers to Disclosure, Apology and Offer in Massachusetts,” discusses their proposals that they hope will increase the reporting of medical mistakes and reduce medical malpractice litigation that adds to health care costs in Massachusetts.
The so-called “DA&O” approach (disclosure, apology, and offer) has as its goals the prompt disclosure of unanticipated medical outcomes to patients coupled with prompt investigations of claims, a system to avoid similar unanticipated outcomes in the future that would improve patient safety, apologies to patients regarding the avoidable injuries sustained by them, and a prompt and fair offer of monetary compensation to patients who suffered unintended medical outcomes without resorting to lengthy and expensive medical malpractice litigation.
As stated in “A Roadmap,” the Massachusetts initiative has four aims: “1) to identify the barriers to implementation of a DA&O model in Massachusetts, 2) to develop strategies for overcoming these barriers, 3) to design a roadmap for DA&O program implementation in this state, and 4) to assess applicability of the roadmap to other states.”
Twelve barriers were identified in “A Roadmap” with regard to implementing the DA&O approach in Massachusetts:
1. Fairness and Accountability — medical malpractice victims and medical malpractice lawyers may be suspicious of the DA&O approach including the fear of under-compensating victims of medical malpractice, while physicians and other medical providers may have concerns regarding the legal protections (confidentiality) provided in the peer review process that examines the unintended medical outcomes in detail.
2. Physician discomfort with disclosure — doctors dislike publicly admitting their mistakes and may also have difficulty and are not trained in apologizing to their patients for unintended medical outcomes.
3. Concern for increased liability — the DA&O approach may alert patients to medical mistakes and injuries that they were unaware of, the disclosure of medical mistakes may result in medical malpractice claims that would not otherwise have been made, and patients who were injured may have heightened expectations regarding the compensation they may receive as a result of the unintended medical outcomes.
4. Physician name-based reporting — physicians fear the required reporting to the National Practitioner Data Bank of medical malpractice payouts and the potential harm to their personal/professional reputations.
5. Charitable immunity law – many hospitals and health care organizations in Massachusetts have limited financial responsibility for medical malpractice under current law and therefore fear that the DA&O approach will cost them more.
6. Difficulty coordinating insurers — if all of the defendants and their medical malpractice insurers in a medical malpractice claim do not participate in the DA&O approach, then some of them may attempt to manipulate the system to their advantage.
7. Opposition by liability insurers — medical malpractice insurance companies, like all liability insurance companies, are uncomfortable with change — they are used to and comfortable with the present medical malpractice system and the predictable costs associated with medical malpractice claims.
8. Concern that the DA&O model may not be replicable in certain settings — smaller hospitals and health care organizations, especially in rural areas, and situations where the physicians are not employed by the hospitals or the health care organizations may make it difficult and costly to fully and successfully integrate and implement a DA&O model.
9. Attorneys’ interest in maintaining the status quo — both plaintiffs’ attorneys and defendants’ attorneys have a financial interest in maintaining the present medical malpractice system, and there are concerns that the DA&O system would negatively impact patients’ rights.
10. Difficulty of getting supporting legislation passed — whenever there is a proposed change in the law, those opposing the change will make their opposition known to those who are in the position to change the law.
11. Forces of inertia — the fear of change, and those who have a stake in maintaining the medical malpractice system in its present form, will make it difficult to change to the DA&O approach.
12. Insufficient evidence that the DA&O approach works — there is little evidence from other U.S. states involving the benefits of a DA&O approach to medical malpractice claims.
One of the most discussed benefits of a DA&O approach to medical malpractice claims is the possible benefit to patient safety — including better communications between physicians and other health care providers and their patients, potentially less hostility between health care providers and their patients, and benefits associated with better and more complete reporting of unintended medical outcomes that lead to patient safety improvements and that can help avoid similar events in the future (that is, learning from one’s mistakes (and from the mistakes of others)).
Whether you are a resident of Massachusetts or you live in another U.S. state, if you are the victim of possible medical negligence, you should promptly consult with a medical malpractice attorney in your state to learn about your rights.
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