Category Archives: Massachusetts

October 2017 Newsletter

Oklahoma Supreme Court ruling could lead to medical lawsuit abuse Patients and physicians in Oklahoma could face a deteriorating liability climate in the coming years, as the state Supreme Court recently ruled against an effective liability reform. This setback to accessible and affordable care is the third time the Supreme Court has ruled against a certificate of merit requirement, following several revisions to past legislation which had also been invalidated by the Court. The latest version of the reforms included expanding the scope of expert witness affidavits to include all civil negligence actions which required testimony by an expert, following previous rulings that the law put a higher burden on victims of professional negligence than victims of general negligence. “We believe the certificate of merit has been an important legal reform that helped prevent baseless lawsuits, and we will look carefully at our options and next steps to address today’s ruling,” said Wes Glinsmann, executive director of the Oklahoma State Medical Association. Without an umbrella of federal reforms, medical liability at the state level has too often been a game of one step forward, two steps back, as reforms are passed and then continuously challenged by the personal injury lobby….

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‘Sorry’ doesn’t mean they’ll sue: How hospitals avoided lawsuits after adverse events

Communication-and-resolution programs (CRP) at four Massachusetts hospitals led to lower medical liability costs and improvements in patient safety after adverse events, countering concerns that telling patients about errors would motivate more to file lawsuits. Led by Stanford University health law professor Michelle Mello, PhD and published in the October issue of Health Affairs, the study evaluated programs implemented at six hospitals run by either Beth Israel Deaconess Medical Center or Bayside Medical Center. Their CRP protocol, called CARe (Communication, Apology and Resolution) was introduced in their large level 1 trauma centers (Beth Irael’s 672-bed Boston facility and Baystate’s 716-bed facility in Springfield, Massachusetts) as well as two Baystate community hospitals. The protocol was used in all clinical settings for all adverse events. When events met (or when a patient alleged they met) a severity threshold, it was included in the evaluation. That threshold was any event which caused harm to a patient which either led to or extended a hospitalization, necessitated an invasive procedure or resulted in at least three outpatient visits. If an investigation finds significant violations in the standard of care, the CARe protocol calls for providers and liability insurers apologize to patients and proactively offer compensation. The…

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September 2017 Newsletter

Liability concerns drive up defensive medicine, cost of care Providing treatment above what is medically necessary to fend off the threat of a lawsuit continues to be a trend – and a major driver of health care cost increases. A study of over 2100 physicians conducted by Johns Hopkins University found that more than two-thirds of respondents believe that 15-30% of tests, procedures, and prescriptions were unnecessarily recommended. The reason? Liability concerns. Over 80% of the physicians surveyed cited the fear of medical liability lawsuits as the justification for practicing defensive medicine. “Addressing overtreatment can have a major impact on rising healthcare costs in the U.S.,” the authors wrote. “Using the Institute of Medicine’s estimate of excess costs arising from overtreatment, a 50% reduction in ‘unnecessary services’ would result in $105 billion in savings each year, or about 4% of total national healthcare spending.” With a patchwork of laws leaving uncertainty about the liability climate from state to state, physicians surveyed recommended a series of changes that could help in the interim, including improved training on appropriate criteria for care, more accessible medical records, and evidence-based practice guidelines. To read more about the Johns Hopkins study on defensive medicine, click…

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Advances in Patient Safety and Medical Liability

Research in patient safety and medical liability in recent years has widened our definition of these terms. Patient Safety improvement is no longer a preventive strategy to protect medical facilities from lawsuits—it is a serious and wide-reaching effort to measurably improve the safety culture among staff in medical institutions, to find lasting and systemic prevention strategies for adverse events, and to work with patients—and with their families and caregivers—as equals to both address their care needs and to earnestly reconcile when their care does not go as planned. Working with patients as partners has become increasingly important in our rapidly changing medical landscape. Patients are experts in their own care and their own needs. Too often, we medical professionals ignore their expertise and opinion. In addition, caregivers and family members have knowledge and perspectives about the patient and his or her condition that can contribute to better care and improved patient safety. Transparency between and among medical colleagues and a supportive just culture are also central aspects to improving safety and creating a climate less prone to medical liability in health care facilities. The articles included in this publication demonstrate a wide variety of studies that investigate the importance of openness and…

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July 2016 Newsletter

New Mexico Legislators Find Solutions to Out-of-State Liability Concerns Patients in New Mexico who seek treatment from neighboring states now have more assurance that care will available to them without physicians feeling threatened by out-of-state liability laws. The change in the law was necessitated following a case where a New Mexico patient who, after receiving treatment in Texas from a Texas physician, brought forward litigation under New Mexico tort laws, which do not include similar tort liability protections as Texas laws. Without addressing the issue, patients faced limits in seeking care from out-of-state physicians. “There were large practices [in Texas] where 60 percent of their patients are from New Mexico, and they were going to stop seeing those patients,” said Randy Marshall, executive director of the New Mexico Medical Society. “Some practices were already turning away patients.” The bill, which took effect earlier this month and sunsets in three years, allows doctors in other states to request patients to sign a form stating that they would file any lawsuits in the state where the treatment was provided. The document would be admissible in court in both the home state of the patient and the state where any lawsuit is filed….

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A Flawed Medical Malpractice System

New York’s medical malpractice system needs comprehensive reforms. The writers note that many states allow patients to file suit based on when they discover that there was a medical error, but, unlike New York, most of those states also have caps on damages and other laws that balance the effects of wider discovery rules. Pegging New York’s statute of limitations to a patient’s subjective knowledge will potentially lead to far more claims and greater financial exposure for the state’s doctors and hospitals. Despite scoring high on various quality indicators, New York’s hospitals and doctors have among the highest medical malpractice costs in the United States. Many doctors logically conclude that the state is simply too hostile an environment to practice medicine. Finally, the same study that the writers cite to blame hospitals and doctors (“To Err Is Human”) emphasizes that improving patient safety requires a shift away from a culture of blame. Other studies have concluded that the drivers of malpractice liability are varied and not necessarily related to the quality of care. Medical malpractice is a complex issue that deserves thoughtful discourse. Only through comprehensive reform — not narrow, piecemeal legislation — can we achieve appropriate balance and minimize…

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Mass. Malpractice Reforms Offer Faster, More Open Process For Injured Patients

When a woman had gall bladder surgery at a Massachusetts hospital in 2013, doctors noticed something suspicious on a CT scan that they thought could be ovarian cancer. But the recommendation that the patient get a pelvic ultrasound fell through the cracks. Months later, she was diagnosed with stage 3 ovarian cancer. Normally, this type of medical mistake could mark the start of a protracted malpractice lawsuit. But in Massachusetts, where medical, legal and consumer groups have worked together in support of a recently enacted law that tries to preempt litigation by establishing a process and timeframe for discussing mistakes, that’s not what happened, according to her attorney who recounted the case in an interview. The law mandates that people give health care providers six months notice if they intend to sue. The woman’s lawyer notified the hospital of the mistake and the harm it had caused her: A delay in diagnosis that may have led to more extensive cancer treatment and, arguably, a higher risk that the cancer will recur. Hospital officials, who had 150 days to respond, determined that their actions hadn’t met the standard of care. The hospital arranged a meeting between the woman and one of…

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News Flash: Doctors, Lawyers Work Together on Med-Mal Reform

It may not seem like big news, but if you’ve followed the long-running, stubborn and mostly dug-in debate over reforming medical malpractice in the U.S., you know that when doctors and lawyers issue a joint news release, something is really going on. (As Carey put it: “Talk about the lions lying down with the lambs!”) Formally, it’s called “Disclosure, Apology and Offer” and it’s a key provision of the new state health cost law. Massachusetts doctors and lawyers have agreed to work side by side on this less hostile (and potentially cost-saving) approach to dealing with medical errors and malpractice. It essentially boils down to disclosing mistakes, apologizing to the patient and family when appropriate and offering compensation as a way to avoid litigation when possible. From the Mass. Medical Association, Mass Bar Association and Mass. Academy of Trial Lawyers news release: An historic and unprecedented partnership between physicians and attorneys in Massachusetts has led to significant reforms to the medical liability system, allowing for improvements to resolving malpractice cases that both sides say could greatly benefit patients by reducing some unnecessary and protracted lawsuits while improving patient safety. The health care cost control bill recently passed by the Massachusetts…

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Physicians, Patients Face Long Road in Liability Lawsuits

(Reuters Health) – Malpractice claims against U.S. doctors are often dismissed, and when they go to trial, the verdict is usually in the doctor's favor, according to a new study. But even when a case is dismissed, the road is typically long for both doctors and the patients suing, researchers said. "Most claims go in favor of the physician, and they take a long time to resolve," said lead researcher Dr. Anupam B. Jena, of Massachusetts General Hospital and Harvard Medical School in Boston. Medical malpractice claims have become a hot-button issue in the U.S., coming up repeatedly in debates about healthcare reform. Some specialists must pay a couple hundred thousand dollars a year in premiums for insurance against malpractice claims — though rates vary by state. But not much has been known about how long malpractice claims take to resolve, or what proportion of them actually end in a payment to patients, according to Jena. For their study, he and his colleagues looked at more than 10,000 malpractice claims against U.S. doctors closed between 2002 and 2005. They found that of all claims, about 55 percent resulted in an actual lawsuit. Of those litigated claims, more than half were…

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Massachusetts hospitals undertake new approach to malpractice cases

In an effort to improve the state’s malpractice system, seven Massachusetts hospitals are participating in a pilot program designed to offer patients harmed by medical errors prompt apologies and financial settlements, reports the Boston Globe. The alliance of hospitals taking part in the new initiative include Massachusetts General Hospital, 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, and Baystate Mary Lane Hospital in Ware. Striving for an environment of openness Championed by the Massachusetts Medical Society (MMS) and patterned after a plan successfully implemented by the University of Michigan Health System 10 years ago, the initiative, called “Roadmap to Reform,” proposes a process of disclosure, apology and offer (DA&O). The new system is meant as an alternative to the current system of litigation, considered by many health professionals as inefficient and responsible in part for driving health costs higher, stated the MMS in a news release. “The current approach to medical liability is onerous for both patients and physicians,” said Alan Woodward, MD, chair of the MMS Committee on Professional Liability and past president of the organization. “It discourages transparency, inhibits communication between caregivers and patients, burdens physicians with excessive premiums,…

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