Defensive medicine

Medical Liability Reform Begins in Massachusetts

Posted in Defensive medicine, Health Reform, Malpractice, medical liability reform, professional liability reform, Uncategorized on February 14th, 2013 by MMS Communications – Comments Off on Medical Liability Reform Begins in Massachusetts

With a research initiative begun three years ago that created a roadmap to reform, medical liability reform has now begun to unfold in Massachusetts.

The Massachusetts Alliance for Communication and Resolution following Medical Injury (MACRMI) this week announced the launch of its website detailing information on the reform efforts for Massachusetts patients and providers at

MACRMI was formed as the result of the initiative begun in 2010 and led by Beth Israel Deaconess Medical Center and the Massachusetts Medical Society. Participants and supporters also include Baystate Health, Massachusetts Hospital Association, Massachusetts Coalition for the Prevention of Medical Errors, Medically Induced Trauma Support Services, as well as health insurers, provider organizations, and patient advocacy groups.

MACRMI has now started to implement the roadmap to reform, through a Communication, Apology, and Resolution (CARe) program (also known as disclosure, apology and offer, or DA&O), with pilot programs underway in six hospitals.

The six hospitals participating in the pilot initiative include three from the BIDMC health system (Beth Israel Deaconess Medical Center in Boston, Beth Israel Deaconess Hospital-Needham, and Beth Israel Deaconess Hospital-Milton); and three from Baystate Health system in Springfield (Baystate Medical Center in Springfield, Baystate Franklin Medical Center in Greenfield, and Baystate Mary Lane Hospital in Ware).

The research initiative by BIDMC and MMS was funded by a grant from the Federal Agency for Health Care Research and Quality as part of the President’s Patient Safety and Medical Liability Program.

A key step in the process was an unprecedented agreement on legislative language among the Massachusetts Medical Society, Massachusetts Bar Association, and Massachusetts Academy of Trial Lawyers. That agreement led to approval of the provisions enabling reform by the legislature and Governor and their subsequent inclusion into the payment reform bill that Governor Patrick signed last August. Among the provisions are a six-month, pre-litigation resolution period, sharing of all pertinent medical records, appropriate apology protections for providers, and full disclosure to patients.

Passage of the law made Massachusetts the first in the nation to have comprehensive legislation that will provide for the conduct of such a program in different practice environments with different insurance arrangements.


Key Similarities and Differences Between the House and Senate Payment Reform Bills

Posted in Accountable Care Organizations, Defensive medicine, Electronic health records, Electronic Medical Records, Health IT, Health Reform, Malpractice, Mass. Legislature, medical liability reform, Payment Reform on June 8th, 2012 by MMS – 1 Comment

After two years of discussion and debate, the Massachusetts Legislature must now deal with two huge pieces of payment reform and cost control legislation.

Earlier this week, the House passed its legislation by a wide margin, following eight hours of deciding which of 275 amendments it would accept. The Senate passed a separate bill on May 17.

During the House debate this week, the MMS sought to protect most small and medium physician groups from the House’s very rigorous reporting requirements. The original House bill exempted groups with fewer than 10 physicians. Due to MMS advocacy, the House agreed to increase the exemption to 25, which we will try to increase further during the conference committee’s deliberations.

When the members of the conference committee are appointed, they will have until adjournment on July 31 to agree on a single bill and get it passed by both chambers.

Despite their many similarities, reconciliation and consolidation of the bills is not expected to be an easy task.

Key Similarities

  • Cost containment: Each bill states that overall health care costs should rise in concert with the growth in the state’s economy. (Differences noted below.)
  • State oversight: Each creates a new state agency to certify provider groups, and collect volumes of information on quality measures and costs. The House agency is placed inside the executive branch, under the Executive Office of Health and Human Services. The Senate agency is an independent entity.
  • Market power: Both bills require payers to negotiate separate contracts for each hospital facility, with some exceptions.
  • Alternative payment models: The bills define ACOs and their requirements. They provide a 2 percent bonus in Medicaid payments to providers starting in July 2013, if they move to alternative payment methodologies.
  • Electronic Health Records: Each requires physicians to be proficient in the use of electronic medical records. (Differences noted below.)
  • Medical liability: Both mandate waiting periods for civil suits brought against health care providers. They require disclosure of case information to patients and providers; protect statements of apology from being admissible as evidence; provide for early payments to patients without prejudice. They reduce the prejudgment interest rate in malpractice cases from 4 percent to 2 percent. No contract may prohibit a physician from serving as an expert witness.
  • Determination of Need: They expand the Determination of Need process to include more new technologies, transfers of ownership and site expansions.
  • Administrative simplification: Both bills require standards forms for utilization review.
  • Peer review: Both bills expand the peer review statute. The House specifically provides ACOs with peer review protection; the Senate provides such protections to any provider group that conducts peer review activities.
  • Charitable immunity: They raise the charitable immunity cap from $20,000 to $100,000 (affects most hospitals in Massachusetts).
  • Physician assistants and nurse practitioners: Each bill provides more independence to physician assistants and nurse practitioners.
  • Limited service clinics: Both bills eliminate some existing regulations for the operation limited service clinics, such as those located in pharmacies; however their approaches differ.

Key Differences

Cost Containment

  • The House’s benchmark is 3.6 percent for 2012 and 2013. In 2014 and 2015, it would be equal to the growth rate projected in the Governor’s budget submissions. From 2016 to 2026, it would be equal to a half percentage point below the Gross State Product (GSP) from 2016 to 2026, and equal to one point above GSP after 2027.
  • The Senate’s cost benchmark is a half point above GSP through 2015, and equal to GSP from 2016 to 2026.
  • The House imposes a penalty on providers who costs are 20 percent higher than the benchmark. It establishes rate setting for governmental units. The House gives the state the ability to force providers to reopen contracts that it considers contributing to excessive spending. The House gives the attorney general to block unreasonable increases in rates, and block changes that adversely affect patient access and the quality of care. In the Senate bill, groups that exceed the benchmark must file improvement plans.

Market power

  • The House subjects provider groups of 10 or more physicians to a market impact review.
  •  The Senate gives the attorney general the power to prevent excess consolidation and collusion.


  • The House requires any physician group with 25 or more physicians to be certified by the Department of Public Health.
  • The Senate requires certification for all providers entering into alternative contracts. It exempts groups with less than $500,000 in annual net patient service revenue and fewer than five affiliated physicians, if the group does not accept risk.

Electronic Health Records

  • The House requires providers to adopt EHRs that are fully interoperable and connect to the statewide health information exchange.
  • The Senate updates existing the requirement for EHR proficiency by 2015 by requiring physicians must demonstrate the skills to comply with the federal government’s meaningful use requirements. It creates an institute to facilitate the implementation of interoperable records statewide, and promote the use of other health information technologies.

House Releases Payment Reform Legislation

Posted in Accountable Care Organizations, Defensive medicine, Global Payments, Payment Reform on May 4th, 2012 by MMS – Comments Off on House Releases Payment Reform Legislation

The Massachusetts House Friday released a comprehensive payment reform bill that seeks the cut $160 billion in health care spending in Massachusetts over the next 15 years.

House Speaker Robert DeLeo characterized the bill as an effort to balance the need to cut health care costs for employers and families with a desire to keep health care “a healthy part of our economy.”

Rep. Stephen Walsh, co-chair of the Joint Committee on Health Care Financing, said health care stakeholders “may not like everything [in the legislation], but you certainly will like something.”

The bill spans 178 pages and more than 3700 lines of text. Its provisions include:

  • There are firm targets to encourage health care providers to limit increases in health care costs. In Year 1, annual spending growth may not exceed the growth in the Gross State Product. In Year 3, that target is reduced to a half percentage point below the growth in the Gross State Product. If providers exceed these targets, the state is empowered to change payment methodologies, propose new legislation, require corrective action plans, or reopen providers’ contracts with insurers.
  • Providers whose costs exceed 120 percent of the comparable state median would be fined at 110 percent of their spending that exceeds that 120 percent level.
  • A comprehensive adoption of the so-called Michigan model of “disclosure, apology and offer” to resolve patients’ claim of medical malpractice. This includes the establishment of a 182-day waiting period upon the filing of a notice of a claim. It prohibits the introduction into evidence of a provider’s expression of apology or regret.
  • A powerful new independent agency, the Division of Health Care Cost and Quality, would consolidate the role of many existing agencies and oversee the implementation of the bill.
  • To improve transparency of prices and costs, there are new requirements on providers and insurers to publicly report costs and quality information, and patient cost-sharing.
  • It provides for loan forgiveness for primary care providers practicing in underserved or rural areas.
  • It seeks to simplify certain administrative procedures, and includes a requirement that all health plans must use the same two-page form for all prior authorization requests.
  • It requires that all patients have access to an interoperable electronic health record by 2017. The bill promises an unspecified amount of financial support to help providers develop their EHR systems.

MMS President Lynda M. Young, MD, applauded the inclusion of the Disclosure, Apology and Offer language in the legislation. “We’re very supportive of the approach outlined in the legislation, which we believe will vastly improve the experience of patients who experience an unanticipated medical outcome,” she said.

Dr. Young expressed concerns about the legislation’s cost control mechanisms. “While we certainly appreciate the need to make health care more affordable, we’re worried that the bill’s goal and timetables are too aggressive. We look forward to working with the House and Senate to develop mechanisms that address patients’ affordability concerns, without reducing their access to care, unduly restricting physicians’ ability to practice medicine, or putting a damper on our state’s culture of medical innovation.”

Dr. Young added, “We appreciate Rep. Walsh’s openness and diligence during this long process. He met with us many times, and listened carefully to everything he had to say. We look forward to working with him, and members of the state Senate, during the coming weeks and months.”

The full text of legislation is available here. We’re continuing to analyze its details and will publish the product of that analysis next week.

According to Speaker DeLeo, the House bill will remain in the Ways and Means Committee for further analysis. The Senate, for its part, is expected to release its version of payment reform next week.

Health Reform Principles Stress Balance Between Patient Choice and Economic Reality

Posted in Accountable Care Organizations, Annual Meeting 2011, Defensive medicine, Global Payments, Health Policy, Health Reform, Malpractice, medical liability reform, Payment Reform on May 22nd, 2011 by MMS – Comments Off on Health Reform Principles Stress Balance Between Patient Choice and Economic Reality

Spirited debate at the MMS House of Delegates Saturday led to the adoption of 18 principles on health care reform that the Society plans to share with local and national legislators.

The principle that dominated deliberations asserted that “health care reform must enable patient choice in access to physicians, hospitals, and other services while recognizing economic reality.”

Among the other principles adopted were the following:

  • Physicians must lead reform, keeping clinical decision-making in the hands of doctors and patients.
  • Reform must be flexible enough to account for different practice types and their variable readiness to change.
  • Fee-for-service payment should have a role in any system.
  • Physicians will need infrastructure support, especially for IT and hiring physician extenders.
  • Risk adjustment methods must incorporate physician input and account for illness burden and socioeconomic status of patients.
  • Transparency throughout the whole process is essential.
  • Patient education and accountability must be enhanced.
  • Professional liability and antitrust reform are crucial underpinnings to reform.

The complete principles are available at

Complete Annual Meeting coverage is available at

Boston Papers Call for Malpractice Reform

Posted in Defensive medicine, Malpractice, medical liability reform, Uncategorized on February 22nd, 2011 by MMS Communications – 1 Comment

The Boston Globe took a more national perspective, and the Boston Herald pointed to Governor Deval Patrick’s bill for health care cost containment, but the message from both Boston newspapers was the same:  the current system of medical liability needs to be reformed. Both papers stated their support for such reform in their lead editorials published today [February 22].

Among the comments, the editorials cited the needs that reform must satisfy: reducing the practice of defensive medicine, establishing measures for disclosure and apology, attempting to resolve differences before legal action begins, and examining the causes of errors to prevent them from happening in the future.

In its editorial, the Globe wrote that “Both [Obama and the GOP] should find common ground on innovative approaches that not only reduce jury awards, but also help doctors and hospitals correct underlying problems.”

The Herald said that “Gov. Deval Patrick shrewdly included medical malpractice reform in his new health care cost containment bill. No attempt to rein in the runaway costs in the health care system due in part to the practice of defensive medicine, would be complete without it….”

Read The Boston Globe, Obama, GOP should avoid a standoff on malpractice reform

Read Boston Herald, Reform sick system

Meeting with Sen. Scott Brown Highlights MMS National Advocacy Efforts

Posted in Defensive medicine, Health Policy, Health Reform, Medicare on March 3rd, 2010 by MMS Communications – Comments Off on Meeting with Sen. Scott Brown Highlights MMS National Advocacy Efforts

photo by the Office of Governor Patrick, via flickrMMS physicians held their first meeting with newly elected Massachusetts Senator Scott Brown on Tuesday afternoon, and the session produced a “good exchange of ideas,” said MMS President Mario Motta, M.D.  The meeting was held as part of the American Medical Association’s National Advocacy Conference, held over three days in Washington.

“It was a very cordial meeting,” Dr. Motta said of the 40-minute session with Brown and his staff. “I think we laid the groundwork for a long-term collaborative effort with him to improve health care. We were able to present our viewpoints on key issues, he listened carefully, and he indicated he wanted to work with us. We look forward to an ongoing dialogue with him, just as we have had with every member of our Congressional delegation.”

Physicians were scheduled to meet with every member of the delegation or their staffs. A meeting with Senator John Kerry was on tap for Wednesday afternoon, and sessions with Representatives Markey, Delahunt, Lynch, McGovern, Neal, Tsongas, Tierney, Olver, and Capuano and their staffs occurred over Tuesday and Wednesday. A previous meeting was held with Congressman Barney Frank in his district.

Some 35 physicians, residents, and medical students from Massachusetts attended the event in Washington.  The National Advocacy Conference gives physicians the opportunity to share their concerns and perspectives on a range of health care issues affecting physicians, patients, and the health care industry. Among the major issues MMS members discussed were the Medicare payment formula for physicians, defensive medicine, and health care reform.

Dr. Izenstein: 3 Basics for Health Care Reform

Posted in Defensive medicine, Health Reform, Malpractice, Primary Care on November 2nd, 2009 by MMS Communications – Comments Off on Dr. Izenstein: 3 Basics for Health Care Reform
Dr. Barry Izenstein, Governor of the Massachusetts Chapter of the American College of Physicians, in a letter to the editor of the Springfield Republican published November 1, says “Let us not get caught up in silly, petty, unfounded arguments when it comes to health-care reform. Indeed, if the current bill fails, the result will be more uninsured patients and more families going bankrupt because of high health-care premiums and bills.” Dr. Izenstein lays out three objectives for health care reform: provide all american with access to affordable health insurance; create incentives to reverse a “growing and catatrophic shortage” of primary care physicians; and reform the medical liability system. 

Read Health Care Reform is Good for Patients
The Republican, Springfield, November 1, 2009

Defensive Medicine: Myth or Reality?

Posted in Defensive medicine, Malpractice on January 23rd, 2009 by MMS – Comments Off on Defensive Medicine: Myth or Reality?

Here's an emergency doc whose blog post this week makes his vote clear: Defensive medicine is real.

He writes, "By the end of the shift, I was getting annoyed with myself because I kept
second-guessing my decisions to order tests that would most likely be normal."

He adds, "Many physicians are afraid to practice rational medicine based upon clinical
judgment and physical examination skills. No one wants to face the liability."

Read the whole post – it's worth your time.