A New Approach to Medical Malpractice Claims in Massachusetts

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Aug 30, 2012

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New legislation was recently passed in Massachusetts regarding how medical malpractice cases are handled. The healthcare cost control bill, known as the “Disclosure, Apology, Offer,” affects how patient malpractice claims are resolved by allowing doctors to say they are sorry and steer the situation clear of litigation.

In summary, with this new system, health care providers and hospitals will be required to tell patients immediately upon realizing if a mistake has been made. The doctors or responsible party will then be required to determine exactly what happened and take measures to prevent it from happening again. Next, injured patients will receive an apology and be offered appropriate compensation for their injuries. All of this handled outside of court. Massachusetts State House

Patients, of course, still have the option of taking their case to trial if they so choose. Although medical professionals and hospitals will have some peace of mind from potentially fewer lawsuits, they will not be absolved from the possibility of being taken to court. If an apology is extended, but the injured party proceeds with bringing suit, this apology will not be considered in evidence of liability at trial.

Another element of Disclosure, Apology, Offer is that each episode of malpractice will be followed by a 6-month “cooling off period”, as they are calling it. In this time, the hope is that doctor and patient can resolve the issue amicably, without the cost and trouble of litigation; a more careful doctor emerges and a safer, more fine-tuned procedure is established.

Will the new method make for a better overall system? This remains to be seen, but it seems to be a step in the right direction. It allows doctors to get everything out on the exam table, instead of behind a witness stand, ultimately facilitating a better, more honest relationship between health care provider and patient.

Standard approaches to malpractice law, where lawsuits are all too common, have led many physicians to employ defensive tactics in their practice, such as exhausting potentially unnecessary tests, in order to avoid lawsuits. Disclosure, Apology, Offer could eliminate fear of lawsuits from the equation and establish better medical standards in Massachusetts.

On the other hand, will it allow doctors to get off too easily? Or will it stifle public awareness of medical malpractice claims? When important injury trials make headlines, it brings the conversation into the public forum and in a way brings doctor accountable under scrutiny; will this happen if cases of malpractice are resolved without trials?

In any case, patients have more options under the law, and this is perhaps the most important point. Lawsuits can be exhausting for anyone, and especially for someone who is physically injured and emotionally drained; trials can drag on, become complex and sometimes even end without the Plaintiff receiving the compensation they deserve. But if a sincere apology and financial compensation offered outside of court is enough, an injured party won’t have to wait for a judge’s decision to get on with their lives.

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