Thursday, November 8, 2012

"Disclosure, Apology and Offer" and You

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INTRODUCTION

            In August of this year, Massachusetts governor Deval Patrick signed into law a bill designed to control the state’s healthcare costs.  Among its provisions is the so called “DA&O” or “Disclosure, Apology and Offer” mechanism—based off of a similar program instituted in the University of Michigan Health System ten years ago, and piloted earlier this year in several Massachusetts hospitals in a program funded at least in part by several insurers—that stands to radically change how instances of medical malpractice are prosecuted here in Massachusetts [1, 2].

            While under the current system someone who has been harmed by medical malpractice ornegligence could, theoretically, and provided they had a meritorious case, file a lawsuit at any time within the statute of limitations, DA&O institutes a mandatory six-month “cooling-off” period during which no lawsuit can be brought against the medical provider [2].  During this cooling-off period, aimed at securing a resolution to the matter without resort to litigation, the provider would undertake a “‘root cause analysis’ to determine if caregivers or hospital policy or systems were at fault.  If they were, caregivers will apologize, and the hospital will work with hospital and physician malpractice insurers to determine the amount of compensation to offer the patient for injuries and follow-up care,” [2].  

IMPLICATIONS

            While some laud the new law on the basis that it would provide closure to patients and families in the form of an apology from the offending physician or institution and, if settlement is reached, could potentially expedite compensation to patients, it entails a number of drawbacks.

·      Compensation awarded at a mere three to six months out from an injury due to physician error may not be adequate for the full range of medical expenses the individual may incur over his or her lifetime; [1]

·      While the “root cause analysis” could be used for litigation purposes if a settlement is not reached during the cool-down period, the crucial physician apology would be inadmissible; [3]

·      As yet, the new law “[carries] no penalties if ignored,” [4] and physicians, fearing a blemish on their record, may resist the opportunity to settle; [1]

·      Some fear the law may “too liberally assume that the bulk of malpractice suits are without merit,” when the state already has a mechanism in place for weeding out frivolous suits—the Medical Malpractice Tribunal; [3]

·      Finally, in the experience of veteran trial attorneys like Kenneth M. Levine, who has tried malpractice cases in a number of states across the country where similar laws are in effect, “the six-month waiting period ‘just gives physicians more time to work with their insurance companies and prepare their defenses… they haven’t found a great increase in settlements and they haven’t had an increase in discussions [4].

            If you have been injured as a result of physician malpractice, you need an experienced attorney to fight for your rights to fair and adequate compensation.

            Call Kenneth M. Levine and Associates today.

Kenneth M. Levine & Associates, LLC
32 Kent Street
Brookline Village, MA 02445
617-566-2700
klevine@klevinelaw.com

[1] http://protectpatientsnow.org/content/massachusetts-hospitals-undertake-new-approach-malpractice-cases

[2] http://www.boston.com/news/local/massachusetts/articles/2012/04/18/mass_hospitals_promise_openness_apologies/

[3] http://www.patriotledger.com/topstories/x643675261/Optimism-caution-from-local-hospitals-attorneys-on-proposed-medical-malpractice-reforms

[4] http://www.masslive.com/business-news/index.ssf/2012/08/medical_malpractices_reforms_in_massachu.html

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