On August 6, 2012, Massachusetts Governor Deval Patrick signed into law extensive changes to Massachusetts’ health care law that includes significant changes to Massachusetts’ medical malpractice law. In particular, the new law includes specific language regarding an approach to resolving medical malpractice claims known as Disclosure, Apology, and Offer (“DA&O”).
The DA&O Model
The DA&O model of medical malpractice resolution permits health care providers and their medical malpractice insurance companies to investigate, disclose, and explain to patients what happened when unanticipated adverse outcomes occur and, if appropriate, to apologize and offer compensation to patients without resorting to litigation and without concern that the apologize or the offer of compensation will be admitted into evidence during trial (if the claim does not settle). The DA&O model also establishes systems to improve patient safety and to prevent recurrence of adverse outcomes (at least in theory). Patients retain the right to consult with their own attorneys regarding their legal rights, to help evaluate the fairness and adequacy of any offer(s) of compensation, and to begin medical malpractice litigation if they choose to do so.
The new law in Massachusetts provides a DA&O period of six months prior to engaging in medical malpractice litigation during which the parties share relevant medical records pertaining to the patient, the health care providers provide full disclosure to the patient, and the health care providers are given the opportunity to apologize without the fear that the apology will be admissible in court.
Agreement As To New Law’s Language Led To Its Passage
Passage of the new DA&O provisions was made possible by agreement as to the law’s language reached among the top three groups whose members would be effected by the new law: the Massachusetts Medical Society, the Massachusetts Bar Association, and the Massachusetts Academy of Trial Attorneys.
The current Chair of the Massachusetts Medical Society’s Committee on Professional Liability, who is a past president of the Massachusetts Medical Society, stated in reference to the inclusion of the DA&O provisions in the new law as follows: “This agreement is an extraordinary accomplishment. It will encourage transparency and honesty, protect the rights of patients who have been harmed by avoidable events, improve patient safety, reduce litigation, and ultimately cut health care costs. I applaud the members of the legal profession for their collaboration to bring about this agreement and thank the legislature and the Governor for their support. This is yet another example of Massachusetts national leadership in health care reform.”
The Vice President of the Massachusetts Bar Association commented on the DA&O provisions as follows: “Fairness is the child of transparency. Too many victims of medical errors are delayed or denied needed compensation due to lack of transparency. The MBA is pleased and honored to have worked with MMS, the governor, and the legislature to create a law that is in the best interests of patients in that it requires full disclosure, and encourages early resolution while also protecting a patient’s right to seek legal assistance to ensure fair compensation. Hopefully, full disclosure will also nurture learning that will reduce medical errors in Massachusetts that cost too many injuries and deaths each year. Importantly, this collaborative effort resulted from the fact that both doctors and lawyers appreciate that disclosure of mistakes also allows healing for both the patient and the physician.”
The President of the Massachusetts Academy of Trial Attorneys stated his group’s position with regard to the changes as follows: “This legislation is intended to ensure that patients will be provided with full disclosure regarding their medical treatment and why they were harmed by avoidable events. Honesty and transparency are paramount to the success of this bill and improving patient safety. We applaud the Massachusetts Medical Society’s commitment to these important goals. MATA thanks the Legislature and governor for their incredible effort on this bill.”
If you may be the victim of medical malpractice in Massachusetts or in another U.S. state, you should promptly contact a local medical malpractice attorney who may agree to investigate your possible medical malpractice claim for you.
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