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After a state medical error disclosure and apology law went into effect in November 2012, health providers in Massachusetts have protections and rules to follow.

It’s called the “Health Payment Reform Act” and the rules were crafted to improve communication between providers and patients after an unexpected adverse outcome. First, the Act attempts to add protections for providers who apologize to patients. Second, the Act requires a “cooling off” period before a patient can bring a lawsuit. It also forces hospitals and doctors to reply to the patient’s request for information during that time.

John Ryan is a medical malpractice defense attorney with Sloane and Walsh in Boston, who has represented clinicians and hospitals during malpractice suits for nearly 40 years.

“I do think that physicians have to be mindful that there is a statutory mandate that this form of full disclosure take place. As a result, I think the physicians have to be more attuned to making certain that the information they are relating is accurate, that is, that they can be comfortable that they’ve looked at the facts and the information and what the health care provider is telling the patient is accurate.”

The law requires disclosure of unanticipated outcomes with significant medical complication. Apologies are given additional protection under the law; the charitable immunity cap on health institutions was raised from $25,000 to $100,000; and the interest rate on dollar awards was lowered.

Beth Cushing is Senior Vice President of Claims for CRICO, the patient safety and malpractice insurance company owned by Harvard Medical School and its affiliated health institutions. Cushing points out that CRICO has worked closely with the Harvard teaching hospitals to teach clinicians how to appropriately talk with patients after a bad outcome or medical error, and apologize.

“The central part of the education that we did in disclosure and apology was to help clinicians understand that their words have great meaning in that situation, and also that they should not be discussing anything that they don’t know to be absolutely certain. And those of us who work in this area, and clinicians know, it’s often very difficult to be certain about anything in the immediate aftermath of an adverse event. And so a lot of our training has been around helping people understand that despite all the emotions that they are having and their desire to make things right, when you’re in that moment, you need to step back and be sure that the information that you are giving to that patient and family at the time is absolutely 100% correct and verifiable.”

The rules offer even more incentive to be accurate in these discussions. Under the statute, apologies and expressions of sympathy cannot be admitted later as evidence in a lawsuit—with one exception. If a provider who apologizes, later contradicts his/her statements to the patient or family, under oath, the original apology and associated statements may be brought in.

“You do not want to be in the position of changing your story from one day to another or having subsequent information come to your attention later that now changes the opinion that you rendered a few days ago. And in the practice of medicine, that’s often the case. Test results need to be explored, and other issues, to get the full clinical picture of what happened to a person. And we need to measure the conversation, not to hold back and create a story or create a reason for why something happened, but to make sure that you are not really adding injury on top of an injury to a patient who is looking for factual important information.”

Attorney Ryan says some physicians may have a difficult time with uncertainty immediately after a bad outcome, including what may have happened before they saw the patient:

“There’s a great natural instinct I believe in highly intelligent people—of which the medical profession is filled—to drive towards a composite impression of what is the answer to a given question. I think it is going to be very important to be careful about that, because they may be inadvertently in these statements tying other people down. And they might find out gee, that isn’t what happened on the last visit before they came to see you.”

Patients will also theoretically benefit from the law’s new requirement for a cooling off period and time to share information. Patients or their survivors are required to notify their provider at least 182 days before filing a lawsuit. The provider must in turn reply within 150 days of a notice from a patient or his/or representative regarding an incident covered by the law.

Beth Cushing of CRICO, says this earlier exchange of information about the contours of a negligence claim will help resolve questions and claims earlier in the process.

“The more information we get up front, obviously the more quickly we can move on whatever the theory or the issue is that we are being presented with. Cases that go directly into lawsuits have a track of their own, and it can take a very long time due to the litigation process to really be able to focus in on what the heart of the issue is. Hopefully, with these letters written by plaintiff attorneys or the patients themselves, we will get a better insight into that sooner and can therefore focus our investigation and evaluation to those points that have been raised.”

Cushing believes the biggest impact of these changes may be on the insurer or the physician’s attorney, rather than the clinician’s themselves. John Ryan says the notification letter from the patient is likely to come from an attorney, and might go to several individual doctors involved in the case. He recommends that practices and hospitals have a protocol whereby the patient letters are forwarded to and processed by a central office at the hospital, probably the risk manager or general counsel. Ryan says that, in the end, the new rules are based on a myth that hospitals and clinicians are not trying to be forthcoming. In this sense, he thinks the Act mostly structures something that’s already taking place.

“I’m a great believer that the medical profession at the end of the day—and here comes the naiveté of a 38-year trial lawyer—ought not to be driven by legalisms and by fear of litigation, it should be driven by what I would call the natural ethical and wonderful instincts of health care providers, which is to care for the patient. A lot of these activities, I believe, would typically be in the ebb and flow of the relationship with patients particularly in these outpatient primary care settings where there is a good relationship that’s built up over time. It’s not a profession of hiding. It’s not a profession that’s covert, at least in my experience.”

Originally published in 2012

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