Massachusetts Passes Health Care Cost Control Bill

A newly enacted law in Massachusetts will adopt the "disclosure, apology and offer (DA&O)" approach to help resolve malpractice cases. The Healthcare Cost Control Bill recently passed by the Massachusetts legislature and signed by Gov. Deval Patrick on August 6 contains specific language that facilitates a DA&O approach to medical malpractice claims.

Under the DA&O model healthcare professionals and institutions and their insurers:

• Disclose to patients and families when unanticipated adverse outcomes occur
• Investigate and interpret what happened
• Establish systems to improve patient safety and prevent the recurrence of such incidents
• Apologize, where appropriate, 
• Offer fair financial compensation without the patient  having to resort to legal action.

Changes include provisions for a six-month, pre-litigation resolution period that affords the time to go through a DA&O process with sharing of all pertinent medical records by the patient, full disclosure by providers, and for statements of apology by providers to be inadmissible in court.

Under the DA&O model, healthcare professionals and institutions and their insurers 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 without the patient having to resort to legal action. Patients will always have the right to consult an attorney to advise them of their rights and to evaluate the fairness of any offer or to bring legal action if they so choose.

New Hampshire Considers Early Offer Settlement Bill

Former NH Superior Court and Supreme Court judge Chuck Douglas has weighed in on the controversial SB 406 a bill to provide "early offer" settlements as a way to expedite medical malpractice settlements. According to Douglas in an opinion piece in SeacoastOnline.com, the legislation,

"runs counter to the way we value life in this state. Under the proposal, a hospital or other provider can kill a patient and the compensation is only $117,500.... Furthermore, the bill is premised on the fact that elderly folks on Social Security who have no earned income, or stay-at-home moms who have no income, are not worth paying for pain and suffering. The bill covers payments only for lost wages. If you have no lost wages, your loss of enjoyment of life is worth zero."

Douglas further writes...

"The bill was drafted by a Virginia professor and has a payout formula like workers' compensation schedules. An example of what would probably be considered a low-end payment under the formula for a "permanent injury involving minor harm" ($29,750) is an article that appeared in the Union Leader on March 30 describing how a nurse cut off a child's finger after the 8-month-old arrived at a hospital with a chest infection. They could not reattach the tiny finger that the nurse mistakenly cut off. That permanent life-long mutilation would only be worth $29,750 according to SB 406 — less than $500 per year over the life (expectancy) of the child. That does not begin to compensate the child, in my opinion."

You can read his full opinion here: Hard to make choices blindfolded.

Mass. Hospitals Look To Promote Culture of Openess and Apologies Regarding Medical Errors

A coalition of seven Massachusetts hospitals are undertaking an intiative to transform a culture of "secrecy and denial" regarding medical errors according to a report in The Boston Globe. The hospitals in the coalition include Beth Israel Deaconess Medical Center in Boston, Beth Israel Deaconess Hospital-Needham, Beth Israel Deaconess Hospital-Milton, Baystate Medical Center in Springfield, Baystate Franklin Medical Center in Greenfield, Baystate Mary Lane Hospital in Ware, and Massachusetts General Hospital. As outlined in the Globe article:

"The plan calls on doctors and nurses to fully disclose mistakes to patients and apologize. Three large insurers and a medical group have donated about $1 million to underwrite the initial work at the seven test hospitals, and the coalition hopes to implement the improvements statewide over the next several years."

Under the plan, patients who accept a financial settlement forfeit their right to sue. To read the full Boston Globe article, Mass. hospitals promise openness, apologies.

Wrongful Birth Medical Malpractice Award is $2.9 Million in Oregon

Usually when reporting medical malpractice verdicts and settlements it is the phrase 'wrongful death' that comes up, not 'wrongful birth'. But a rare 'wrongful birth' trial reached a conclusion for the parents of child who was born with Downs Syndrome claiming doctors for medical negligence in pre-natal care, in the amount of $2.9 million for the lifetime care of the child. See article on OregonLive.com.

This of course stirs debate with anti-abortion forces. The Daily Beast details the conflict rising over The Legal Claims of Wrongful Birth vs. the Right to Lie Over Abortion...

When anti-abortion activists defend mandatory ultrasound rules, they often speak about a pregnant woman’s right to know. “Women have a right to know all the available medical and legal information surrounding the abortion decision before giving legally effective informed consent,” said Virginia Gov. Bob McDonnell when he signed such a rule into law last week.

In some states, though, anti-abortion activists are pushing legislation to protect doctors who don’t give women all available information about their pregnancies. Arizona and Kansas are considering bills that would ban lawsuits in cases where doctors fail to warn their patients about birth defects.

Read more on The Daily Beast.

 

State Lawmakers Blast House GOP's Medical Malpractice Reform Plan

In today's The Hill's Healthwatch the article — State lawmakers blast House GOP's medical malpractice reform bill - mentions a letter from the National Conference of State Legislatures (NCSL), expressing strong, bipartisan opposition to attaching federal medical malpractice legislation to the Medicare accountability bill as a "State's rights issue."

"Medical malpractice, product liability and other areas of tort reform are areas of law that are regulated by the states," says the letter from the NCLS. "Since the country's inception, states have addressed the myriad of substantive and regulatory issues regarding licensure, insurance, court procedures, victim compensation, civil liability, medical records and related matters."

Read more on thehill.com.

Sanjay Gupta Writes Novel on Inside World of Medicial Errors

Every time surgeons operate, they're betting their skills are better than the brain tumor, the faulty heart valve, the fractured femur. Sometimes, they're wrong. At Chelsea General, surgeons answer for bad outcomes at the Morbidity and Mortality conference, known as M & M. This extraordinary peek behind the curtain into what is considered the most secretive meeting in all of medicine is the back drop for the entire book.

Monday Mornings: A Novel, by Dr. Sanjay Gupta, follows the lives of five surgeons at Chelsea General as they push the limits of their abilities and confront their personal and professional failings, often in front of their peers at M & M. It is on Monday mornings that reflection and introspection occurs, usually in private. It is Monday Mornings that provides a unique look at the real method in which surgeons learn — through their mistakes. It is Monday Mornings when, if you're lucky, you have a chance at redemption.

Patient Safety: How To Reduce Your Chance of a Medical Error

Here’s what Consumer Reports and Dr. Peter Pronovost, senior vice president for patient safety and quality at Johns Hopkins Medicine, say patients can do to keep themselves safe when they go to a hospital.

• Do your homework. Go to the Web sites Hospital Compare and the Joint Commission and look up hospitals in your Zip code. Based on that information, ask your doctor which ones they trust.
• Ask a malpractice lawyer which hospitals are safe.
• Find out if the procedure you’re having is one that both your physician and the hospital do often. “You don’t want a doctor or hospital that dabbles in your procedure,” Pronovost says.
• Ask if the physician and hospital use a checklist.
• When you go to the hospital, have a list of all your medications and medical problems and give it to the doctors and nurses caring for you.
• Ask if physicians and nurses have washed their hands before they touch you. You may feel uncomfortable asking this, but it’s for your own safety.
• If you have an invasive device in your body, such as a catheter, either you or a family member or a friend should ask every day if you need to have it in your body and when it can be taken out.
• Bring a friend or family member with you to be your advocate, ask questions, and record the answers.

This article was reprinted from kaiserhealthnews.org with permission from the Henry J. Kaiser Family Foundation. Kaiser Health News, an editorially independent news service, is a program of the Kaiser Family Foundation, a nonpartisan health care policy research organization unaffiliated with Kaiser Permanente.