Massachusetts' New Disclosure, Apology and Offer Law

Man Giving Patient Flowers The new “Disclosure, Apology and Offer Law” from Massachusetts is unprecedented. It has doctors and lawyers working together! It’s a good day. If you follow this blog, you know that we are big fans of tort reform and innovative attempts at lowering medical malpractice costs and streamlining the claim process. The new Disclosure, Apology and Offer provision is part of a larger health care cost control bill that was passed on August 6 by the Massachusetts legislature and signed into law by Governor Deval Patrick. The Disclosure, Apology and Offer approach is endorsed by the Massachusetts Medical Association, the Massachusetts Bar Association and the Massachusetts Academy of Trial Lawyers.

Essentially, this provision is a “less hostile” way for physicians and lawyers to work together to address medical mistakes and claims of medical malpractice. Its simple approach is this:
1. Disclose mistakes.
2. Apologize to the patient and family if appropriate.
3. Offer compensation as a means to avoid litigation when possible.

The provision provides a six-month, “pre-litigation resolution period” for the three-step process above which allows for full disclosure, sharing of medical records and an apology that would be inadmissible in court. Essentially, the Disclosure, Apology and Offer provision allows for total transparency by physicians and health care institutions.

We have seen this model employed by larger health care systems with success. To see it on a state-wide level will be interesting to watch. Both sides say it will reduce some unnecessary and drawn-out lawsuits and help to improve patient safety. This approach makes Massachusetts the first state in the US to have comprehensive legislation to support a disclosure, apology and offer program across multiple practice environments with multiple insurance arrangements.

We will keep you posted on this new program and look forward to seeing the anticipated results it should bring. If you are a physician looking for Massachusetts liability insurance, or would like to check in and see what the rates are doing, don’t hesitate to call us.