The Massachusetts Apology Law – the Injured Patient’s Perspective
In 2012, the Massachusetts Legislature passed the Health Payment Reform Act, also known as the “Apology Law,” to provide a vehicle by which health care providers could try to reduce medical malpractice litigation by communicating early with injured patients about poor medical outcomes. The law contemplates that health care providers will disclose to injured patients what happened and will apologize for any mistakes made. It also contemplates that health care insurers will offer reasonable settlements to resolve malpractice matters, and that the apology, explanation and offer will occur within six months after an injured patient notifies the provider of the alleged medical error.
The law is also known as the “Disclose, Apologize, and Offer” Law (“DAO”). Under the DAO model, health care providers are given the opportunity to apologize without fear that their words will be used against them in court. The apology is inadmissible in a court proceeding unless the provider later contradicts statements made in the apology. Research conducted before the Legislature passed the Apology Law suggests that for patients, an admission of responsibility and an apology are the most valued parts of the reconciliation process. The expectation is that frank communication will promote forgiveness and an early resolution of disputes, reducing the legal and emotional costs of litigation.
This firm represents patients injured by medical error, and unfortunately in our experience the Massachusetts Apology law is not working to meaningfully reduce medical malpractice litigation. While the law permits health care providers the opportunity to disclose and apologize, it does not require it, and in the vast majority of cases brought by this firm, the health care providers do not take advantage of the opportunity afforded by the law. Rather, its business as usual, with individuals and organizations reverting to the “deny and defend” strategy that has long defined medical malpractice litigation.
When a provider does not take responsibility and apologize in a case in which there has been medical neglect, the practical effect of the Apology Law is to delay and prejudice the injured patient’s ability to vindicate her rights. The Apology Law requires the injured patient to give six month’s notice to the health care provider before commencing a lawsuit. While waiting for an apology not forthcoming, the patient suffers physically and emotionally from the medical neglect, which naturally creates frustration and even anger, hardening feelings against the provider, the medical system, and the legal system. When the six months pass and the patient is permitted to file suit and use the litigation process to compel the provider and others to disclose relevant information about what happened, memories may have faded, witnesses may have relocated, and relevant information may be lost.
It has been seven years since the Legislature passed the law and a comprehensive study of its effects is warranted. If this firm’s experience is indicative of patient experience more generally, and the law is not serving but is undermining its purpose of promoting prompt reconciliation and resolution, then the law should be reconsidered.