Disclosure, Apology and Offer

Authors: Starlett M. Miller and Stephanie F. Hedrick

“I’m sorry” – One of the most powerful phrases a person can say.  However, when it comes to medical errors, doctors have been reluctant to admit to mistakes when they inevitably happen due to the potential for a patient or their family bringing a legal action.  Many states are now passing laws commonly referred to as “apology legislation” which is designed to allow medical professionals to express empathy for and take ownership of an unforeseen outcome without the risk of retaliatory litigation based solely on the statements made at the time of the apology.

Recently, Massachusetts joined the growing list of states that have enacted the “Apology Approach” to facilitate the early resolution of medical malpractice cases.  On August 6, 2012, Massachusetts Governor Deval Patrick signed the healthcare cost control bill, known as “Disclosure, Apology and Offer” (“DA&O”), a joint initiative by Massachusetts physicians and lawyers to utilize a more remorseful approach to handling medical errors and malpractice.  “The new initiative is a fundamental shift from the culture of blame and denial that plagues the medical liability system,” said Alan Woodward, MD, chair of the Massachusetts Medical Society’s (“MMS”) Committee on Professional Liability and a past MMS president.  Woodward stated, “It will encourage transparency and honesty, protect the rights of patients who have been harmed by avoidable events, improve patient safety, reduce litigation, and ultimately cut health care costs.”   The new model includes provisions for a six-month, pre-litigation resolution period that affords the time to go through a DA&O process with the sharing of all pertinent medical records by the patient, full disclosure by providers, and makes inadmissible all statements of apology in litigation.   Finally, the organizations work with their liability insurers to give patients a fair and timely offer of financial compensation.  By giving patients the opportunity to receive transparent information and prompt financial recourse, the hope is that the court system would be used only as a last resort.

The enactment of state laws protecting healthcare providers’ apologies in the event of a medical error not only lend more credibility to the profession, but have also shown to provide “the greatest reduction in average payment size and settlement time in cases involving more severe patient outcomes.”   More states may follow the example set by Massachusetts and enact laws that preclude the admissibility of apologies by providers in medical malpractice actions in order to reduce the costs associated with medical malpractice because apologies are a “mitigating factor in whether patients decide to litigate” and allowing these statements without fear of repercussions, “expedites the settlement process.”

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