Massachusetts Bar Association Secretary Jeffrey N. Catalano
testified at a Statehouse hearing on Jan. 28 before the Joint
Committee on the Judiciary regarding various medical malpractice
Catalano, a partner at Todd & Weld LLP in Boston, explained
the MBA's position on House Bill 1332, An Act Improving Patients'
Access to Timely Compensation, otherwise called the "apology
The bill, in part, would make any apology or expression of
sympathy or regret by a doctor or health care worker to a patient
or their family inadmissible at trial. However, the bill also
excludes from evidence any acknowledgement of "mistake or error."
Thus, the bill would allow a health care provider to admit a
mistake or error to the patient, but then later vigorously defend
his or her actions as acceptable and appropriate in a court of
"The MBA is not opposed to letting doctors apologize and not
holding that against them," Catalano told the committee, which is
co-chaired by Rep. Eugene O'Flaherty and Sen. Cynthia Stone Creem.
"In fact, there is a statute that presently allows health care
providers to do so without having it used against them. The problem
is that the proposed legislation is a wolf in sheep's clothing. It
would impose yet another obstacle for patients in getting to the
Hospital records by themselves can be inadequate in establishing
what happens to patients, Catalano said, and the information
provided by doctors and nurses can be crucial to clarifying how
mistakes were made and by whom.
The MBA also submitted written testimony that if a medical
provider believes that he or she made a mistake, then full
disclosure - including an apology and an explanation as to how this
happened - is not just the right thing to do, it is an ethical
Catalano also spoke in favor of House Bill 1573, An Act Relative
to the Liability of Certain Non Profit Corporations, which would
amend Section 85K of Chapter 231 to increase the liability limit of
hospitals from $20,000 to $500,000.
He noted that it is often poor hospital procedures that lead to
significant medical injuries, not individual mistakes committed by
doctors or nurses. For example, he said, a hospital that is
chronically understaffed should be held responsible for mistakes
made by overworked physicians or nurses.
"These are hospital-based problems," he said.
Catalano described one case involving an infant who suffered an
untreated infection in the hospital after delivery, resulting in
severe and permanent disabilities. Because the hospital records
were missing, the family was prevented from bringing an action
against the individuals responsible. The judgment against the
hospital was limited to $20,000.
"The injustice this cap does is hard to describe," he said. "The
amendment to this statute is long overdue."
O'Flaherty thanked the MBA for educating the committee on the
issues. MBA General Counsel and Acting Executive Director Martin W.
Healy described the hearing as "a great opportunity to educate
legislators by delving into the legislative proposals and
explaining the real-world effect on patients and their
The MBA also submitted written testimony regarding a number of
tort reform bills.