Doctors' protections under Massachusetts "apology" law are limited

April 27, 2013 (Press-News.org) Doctors' protections under Massachusetts "apology" law are limited

Article provided by Adler, Cohen, Harvey, Wakeman and Guekguezian, L.L.P.
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In November 2012, the Health Payment Reform Act went into effect in Massachusetts. Widely heralded by supporters, the new law was intended to help reduce health care costs and improve the quality of health care available in Massachusetts. One of the most highly publicized aspects of the new law, however, may also be among the least understood.

Disclosure, Apology and Offer

A provision of the Health Payment Reform Act known as the Disclosure, Apology and Offer (DA&O) law affects conversations that take place between doctors and patients (or patient's families) when so-called "unanticipated outcomes" occur in the course of medical treatment. The DA&O law is intended to promote transparency and communication in these situations by allowing doctors to speak freely without fear that their statements may be used against them in the event of a medical malpractice lawsuit.

Supporters say the DA&O law will improve communication and reduce unnecessary litigation by allowing patients' questions and concerns to be addressed directly. However, there are a number of important exceptions to the law, which have not been widely publicized. In addition, the language in relevant portions of the statute has not yet been clearly defined, which means that judges in Massachusetts are likely to vary in their interpretations of the law until more precise definitions are established through legal precedent.

As a result of these issues, many Massachusetts physicians may have an incomplete understanding of the new law and may incorrectly believe that their statements of apology or regret will be protected under all circumstances. In fact, there are a number of circumstances in which such statements may still be admissible in court.

Ambiguitiesin the statute provide a lack of clarity to doctors faced with a patient's adverse outcome

The Massachusetts DA&O law requires physicians and other health care providers to inform patients of any "unanticipated outcome with significant medical complication resulting from the provider's mistake."

The statute defines "unanticipated outcome" as an outcome that "differs from an intended result," but it does not specify from which perspective such a determination should be made. For instance, it remains to be seen whether the disclosure provision applies in the event that a patient has not fully accepted a poor prognosis and "anticipates" a more positive outcome than his or her doctor.

In addition, the term "significant medical complication" is not defined within the statute, leaving it open to interpretation exactly when the duty to disclose may apply.

Exceptions allow doctors' statements in court

The DA&O law provides that a doctor's statements of apology or admissions of error are inadmissible as evidence in the event of a medical malpractice lawsuit -- but a powerful exception included in the statute means that many such statements could nevertheless end up being used as evidence in a medical malpractice lawsuit.

Under the DA&O law, a physician's expression of apology, sympathy, regret, mistake or error is inadmissible "unless the maker of the statement, or a defense expert witness, when questioned under oath . . . makes a contradictory or inconsistent statement[.]" However, the law provides no standards by which to determine whether a statement is contradictory or inconsistent. As a result, judges are likely to interpret the statute in different ways until a clear precedent can be established. In the meantime, doctors cannot be certain whether a statement of apology will be protected under the DA&O law.

Contact an attorney

Physicians and other medical providers in Massachusetts are encouraged to speak with an experienced medical malpractice defense attorney to learn more about how they may be affected by the DA&O law and to discuss strategies for minimizing their legal risks when talking with patients about unanticipated outcomes.