Lead Sponsor: Senator Jamie Eldridge

Summary:  This bill proposes two ways to address the issue of medical professional liability in the Commonwealth, with the goal of promoting solutions that benefit all stakeholders, patients and providers alike:  timely notice and ability to apologize. This bill represents the middle ground solution to the medical malpractice crisis that meets the most important needs of all stakeholders in the debate:  fewer lawsuits, swift justice with no constitutional infringements for patients and lawyers, and fewer medical errors.

Why This Matters: The high cost of medical professional liability premiums in Massachusetts negatively impacts the Commonwealth’s ability to recruit and retain physicians, leading to shortages of clinicians, particularly in high risk specialties.  Some physicians, wary of litigation, have limited their areas of practice.  Others engage in “defensive medicine”, wherein costly diagnostic or therapeutic measures are conducted more as a safeguard against possible malpractice liability than to ensure the health of the patient.   All of these outcomes contribute to the high cost of health care. 

What this Bill Would Do: This bill proposes two approaches to address the issue of medical professional liability in the Commonwealth.

• First, the bill would encourage patients and health care providers to share information prior to potential malpractice claims in the hopes that a settlement might be reached without the need for costly litigation. Patients would be required to file a notice of intent to sue, with a time clock running, and providers would be given the opportunity to respond before a suit is filed. 

If this process is successful in leading to settlements, claimants will benefit in that they would not have to wait the average 5 year period it takes for a medical malpractice case to go to trial.  Physicians may benefit in terms of reduced premiums.  This part of the legislation is modeled after the Michigan law.

• Second, the bill would establish a procedure for health care providers to acknowledge medical errors and other bad results to their patients.   The bill provides that statements, gestures, or conduct expressing regret, apology, mistake, or error are inadmissible as evidence in any judicial or administrative proceeding and are not an admission of liability.  If signed into law, this bill would encourage physicians, nurses and other allied health professionals, hospitals and health systems to take extra steps toward fair negotiations with patients and their families with the help of the words:  “I’m sorry.” 

This section is based on the premise that apologies for medical errors along with upfront compensation may lead to a reduction in medical malpractice lawsuits and associated defense litigation expenses.