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January 2013 Bulletin: Malpractice

Is It Safe To Apologize? An Analysis of the "Disclosure, Apology, & Offer" Law

Michael Barkley

— Michael Barkley, Attorney

On August 6, 2012, Governor Deval Patrick signed into law the Health Payment Reform Act. The law, which became effective on November 4, 2012 and is considered by many to constitute groundbreaking legislation, is aimed at reducing health care costs and improving the overall quality of healthcare provided in the Commonwealth.

The law includes multiple provisions that will substantially impact the landscape of medical malpractice litigation in Massachusetts. One of the most discussed, but perhaps least understood, of these provisions is the new section 79L added to chapter 233 of the Massachusetts General Laws, commonly referred to as the "Disclosure, Apology & Offer" or "DA&O" law.

Proponents of the law state that it benefits both patients and physicians by improving communication between providers and patients regarding "unanticipated outcomes" occurring in the process of medical treatment, thereby allowing for a patient's questions and concerns to be addressed head-on and avoiding the need to investigate the root cause of an unanticipated outcome through litigation. In order to promote transparency and encourage physicians to speak freely and honestly with their patients, in those situations where a patient decides to pursue litigation, the law protects a physician's statements of apology or regret or admissions of "mistake or error" from being admissible in Court against the physician, or in administrative proceedings, with important exceptions.

Print media has misleadingly described the DA&O law as "allowing doctors to disclose and apologize for errors without fear it will be used against them in malpractice suits." 1The law's exceptions to the rule of inadmissibility have rarely been publicized. As a result, many physicians may have an incomplete understanding of the law and may incorrectly believe that statements of apology or acknowledgement of mistake are protected from being used against them in Court under any and all circumstances.

When is Disclosure Required?

The new DA&O law requires that:

"in situations where a patient suffers an "unanticipated outcome with significant medical complication resulting from the provider's mistake, the health care provider, facility or an employee or agent of a health care provider or facility shall fully inform the patient, and, when appropriate, the patient's family, about said unanticipated outcome."

The law defines "unanticipated outcome" as an outcome that "differs from an intended result of such treatment or procedure." The law is silent, however, as to the perspective from which the "unanticipated" nature of the outcome will be determined. For example, it is unclear whether disclosure is mandated in a situation where a patient may have difficulty facing the realities of a poor prognosis and may "anticipate" a different outcome following surgery or medical treatment than a treating physician. The law does not define a "significant medical complication," leaving subject to interpretation the extent to which a patient's outcome must be adversely affected such that disclosure is mandated.

The solution that is perhaps the simplest and in accordance with the intent of the law is for physicians to favor disclosure and discuss "unanticipated outcomes" with their patients in any case that could conceivably be considered "significant." The difficulty with this approach, however, is that disclosure is only mandated where the outcome "result[s] from the provider's mistake." In those cases that proceed into litigation, creative lawyering may allow a plaintiff's attorney to argue in Court that a jury should infer that the mere act of disclosing and discussing an "unanticipated outcome" with a patient constitutes an admission that a "mistake or error" occurred.

When May Statements of Apology or Acknowledgment of Mistake or Error Be Admissible in Court?

The DA&O law provides that statements by a physician to a patient or patient's family expressing apology, sympathy, regret, mistake or error:

"shall be inadmissible as evidence in any judicial or administrative proceeding, unless the maker of the statement, or a defense expert witness, when questioned under oath during the litigation…makes a contradictory or inconsistent statement as to material facts or opinions, in which case the statements and opinions made about the mistake or error shall be admissible for all purposes."

The law does not provide Courts with any guidance for how to determine if testimony given during litigation is "contradictory" or "inconsistent" with a statement made in the aftermath of an adverse medical event. Interpretation of this exception is likely to vary among Judges until clarity is obtained through legal precedent. For instance, consider a situation where a meeting between a physician and a patient or patient's family occurs following an adverse event, during which an unanticipated outcome is disclosed and the possible causes explained by the physician, based on information available at that time. Several years later, a lawsuit is filed and the physician, patient and patient's family members all give deposition testimony. In the vast majority of cases involving this common situation, when questioned under oath in a legal deposition, the patient (or family member) testifies differently than the physician regarding the content of the original statement.

It remains to be seen whether Courts will allow a difference in memory regarding the content of the discussion to constitute sufficient evidence to determine that a physician has made a "contradictory" or "inconsistent" statement, thereby allowing all statements of the physician to be admissible "for all purposes," i.e. to establish that the physician breached the standard of care and caused harm to the patient.

Perhaps an even more challenging task will be deciphering the extent to which testimony by a defense expert may give rise to an "inconsistency," thereby allowing a defendant physician's statement to be used against him. An expert witness retained during the course of litigation evaluates the medical claims from an academic perspective without emotion, and with far more information than may be available to a treating physician in the immediate aftermath of an unanticipated outcome.

The standard case involving a surgical complication illustrates the pitfalls of the "inconsistency by expert" exception to the DA&O law. A surgeon may meet with the patient following surgery, and perhaps out of a sense of guilt, or in haste, may apologize and state that the complication was caused by a "mistake." This "apology" may be heartfelt and well-intended, but ultimately, inconsistent with the opinion of an expert, who may conclude based on all available information that the surgery was performed properly, and that the patient's injury represented the manifestation of a known risk of the procedure that occurred despite appropriate surgical care. Plaintiff's attorneys will undoubtedly argue that statements of the defendant made in the aftermath of the event may be used against the defendant at trial under these circumstances.

In the coming years, Courts will be charged with interpreting the requirements, protections and exceptions of the DA&O law, thereby providing physicians and attorneys with a clearer indication of the circumstances under which disclosure of unanticipated outcomes is required, as well as those circumstances in which statements of apology or error may be admissible. Until that time, it is important for physicians to understand the benefits of the new law, as well as its limitations and exceptions, in determining how to handle discussions with patients regarding unanticipated outcomes.

1Boston Globe, July 31, 2012.


Michael Barkley, Attorney is a partner of Adler, Cohen, Harvey, Wakeman & Guekguezian, LLP. He is a trial lawyer whose practice concentrates on the defense of hospitals, physicians, dentists, nurses, and other medical professionals in litigation and in matters before state licensing boards.

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