The New Medical Negligence Apology and Notice Laws: A Bold New Frontier for Newborn Safety

BOSTON, MA, March 28, 2013

Introduction.

When a child is born with severe birth injuries such as kernicterus (brain damage) due to extreme jaundice, parents often do not realize that anything is wrong with their baby until days, months, or sometimes years later. That is because jaundice in a newborn baby is too often considered a harmless condition by health care providers. Parents walk out of the hospital smiling broadly, with a yellow newborn in their arms, believing that she is perfectly healthy with a nice tan. They frequently are told by nurses just to stick the baby in the sun for a while. Days later, when the parents notice that their child is not eating, arching her back and screaming, or sleeping constantly, they quickly return to their pediatrician with their concerns. It is then that they are confronted for the first time with that strange, nefarious sounding word "Kernicterus".

Kernicterus is a very devastating birth injury that is entirely preventable, but occurs much too often. It results from very high levels of bilirubin (hyperbilirubinemia), which is a yellow pigment that is created in the body as part of the recycling of old blood cells. When the bilirubin levels become too high, the skin can look yellow, or jaundiced. The Centers for Disease Control estimates that at least 60 percent of babies display symptoms of jaundice. It can be easily diagnosed and treated. Unfortunately, too often it is untreated or undertreated because of failure to test and properly treat the condition leading to kernicterus.

When parents inquire as to how this happened, they are frequently confronted with a wall of silence or a led down a path of misinformation. The health care providers know kernicterus is preventable, but do not disclose this to the parents out of fear of being sued, or of causing someone else to get sued. This tragic scenario prevents health care providers from addressing the problem head on and learning from their mistakes. Unfortunately, this is a scenario endemic to all areas of medicine.

When a medical mistake happens, our present culture does not encourage disclosure. The prevailing attitude in the medical field has been to deny and defend. Of course, health care providers have an ethical imperative to disclose medical errors under the American Medical Association Code of Ethics and are required to do so under The Joint Commission (TJC) standards. They are also strongly encouraged to do so by a National Patient Safety Foundation's Statement of Principle. Yet, too few do. The reason for these frightening statistics is multifold. Health care providers are often inhibited from apologizing and admitting mistakes out of guilt, embarrassment, and fear of retribution from the hospital or fear of being sued.

1 American Medical Association. Current Opinions of the Council on Ethical and Judicial Affairs: E-8.12 Patient Information. 1994.
2 See Joint Commission, Revisions to Joint Commission Standards in Support of Patient Safety and Medical/Health Care Error Reduction. Oakbrook Terrrace, IL: JCAHO 2002.
3 National Patient Safety Foundation. Talking to Patients About Health Care Injury: Statement of Principle. 2000.

Certainly, this is not a healthy environment for breeding innovative patient safety measures. And it does nothing to help the victims of medical negligence such as parents of infants with birth injuries, who feel abandoned and betrayed when the hospital and providers respond in ways designed to protect themselves.

The Potential of Apology and Notice Laws.

It is well known that safety is the child of transparency and disclosure. The new medical negligence laws that are part of the Massachusetts Health Care Reform Act strongly promote that maxim. These new laws are described succinctly as the "Apology Law" and "Notice Law." These laws are the result of an unprecedented collaboration between the medical and legal communities following numerous meetings over the course of a year that included dramatic last-minute negotiations. These statutes, which are described more fully in this article, encourage transparency and disclosure when medical errors occur, paving the way for improvements in patient safety and earlier resolution and compensation for those who have been harmed. They also create means for both the health care provider and the patient to begin early emotional healing following medical errors and injuries.

As a trial lawyer, I am a defender of the legal process and firmly believe litigation serves a valuable role in helping to alleviate the substantial burdens incurred by those who are injured by medical errors. I also believe litigation can improve the quality of health care by allowing providers and hospitals to learn from mistakes. Lawsuits can often provide the answers the patients are seeking. However, lawsuits alone are not the answer. They are expensive for both sides and take an emotional toll on both the patient and physician. They also delay, and sometimes deny, much needed compensation for the patient in circumstances of legitimate errors. Those of us who represent victims and families of children who suffer birth injuries are too familiar with the pain of clients delayed or denied justice; they end up feeling betrayed by both the medical and legal systems.

For all of these reasons, the Massachusetts Bar Association, Massachusetts Academy of Trial Attorneys, and the Massachusetts Medical Society worked diligently for more than a year to create a law that puts patients first and promotes patient safety. The new apology and notice laws are a remarkable accomplishment that promotes more transparency and disclosure, which may ultimately lead to improved patient safety and just compensation without infringing upon patient rights.

The Apology Law requires that when an error or mistake occurs, the health provider must inform the patient of what happened. In particular, it requires that, "In situations where a patients suffers an unanticipated outcome with significant medical complications resulting from the provider's mistake, the health care provider, facility or an employee or an agent of a health care provider or facility shall fully inform the patient and, when appropriate, the patient's family, about said unanticipated outcome." A law that requires "full" disclosure of mistakes to the patient is something to exalt. It codifies what the AMA Code of Ethics and TJC have attempted to achieve on a widespread basis. It also enhances, not inhibits, patients' legal rights.

This law also allows for an apology and admission of mistake or error to be excluded from evidence at trial. An important part of the law, however, says that if the health care provider or the defense expert testifies inconsistent with, or contradictory to, what was told to the patient by the provider, then the apology and admission of the mistake is admissible for any purpose. In short, the health care provider must convey the truth, always.

The Notice Law now requires that before a patient may bring a lawsuit, he or she must provide written notice to the health care provider detailing the deviation from the standard of care and how that caused the patient injury. In situations such as a baby with birth injuries, this will often require the assistance of medical experts. The health care provider then has 150 days to respond by detailing how the provider did, or did not; comply with the standard of care. Here again is an objective to encourage early disclosure leading to early compensation for legitimate injuries. While some attorneys are concerned that this will only delay compensation for patients, the hope and expectation is that representatives for both the patient and the provider will comply not only with the letter, but with the spirit of the law to unearth and disclose the truth before going to court. While this notice requirement inhibits attorneys for patients from filing meritless suits, it also prevents attorneys for health care providers from defending the indefensible cases. Instead, it licenses both parties to facilitate just resolutions for deserving victims.

Remaining Challenges.

To be sure, there are many remaining challenges to fulfilling the goals of these new laws. The first is to properly education physicians and hospitals on when and how to apologize and disclose the error and when and how much compensation to offer. It is also important that health care providers avoid making value judgments as to who is worthy of disclosure and compensation and who is not based on personality, character, finances, social status, age, race, gender, etc.

Additionally, it is important to understand that at the moment parents learn that their baby who has been harmed by a preventable medical error, there are swarming emotions that impede rational and detached decision making by the parents. This creates an imbalance of power between the provider and parents. Therefore, to protect patient rights and to ensure the integrity of this process, the hospital must encourage parents to seek independent advice from an attorney. Attorneys play an important and necessary role, for example, in analyzing how much compensation the child will need for medical equipment, treatment, and medications for the rest of his life. This requires experts such as a life-care planner and an economist. The lawyer also must inform the parents of the impact of health care liens, which will reduce the amount that is going to the child after the offer is accepted. The lawyer must inform them of these lien totals (which may be substantial) before the offer is accepted, and assist them with negotiating these down after it is accepted.

Conclusion.

Massachusetts has taken the lead among many states that have considered the issue of transparency in health care. Already, this law is proving to be a model for other states concerned about patient safety and the cost of medical malpractice both financially and in terms of human lives. It also promotes a unique environment of trust between medical professionals, patients, and attorneys. Most important, by requiring full disclosure and transparency, it will foster an environment for learning, not secrecy, to terrible consequences, like kernicterus, from happening to other patients.

Jeffrey Catalano, Esq., is a medical negligence attorney with Todd & Weld, LLP, and former vice president of the Massachusetts Bar Association.