MBA Secretary Catalano testifies on medical malpractice, charitable cap bills

Issue February 2010 By Bill Archambeault

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 bills.

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 bill."

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 law.

"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 truth."

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 imperative.

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 constituents."

The MBA also submitted written testimony regarding a number of tort reform bills.