A closer look at health care solutions for the drug epidemic

Following months of hearings and testimony, the Massachusetts OxyContin and Heroin Commission issued its report and recommendations in November. Read more

Doctor’s View: Aging drivers and public safety: The physician’s role

Following several widely reported incidents in which older drivers caused auto accidents, including one that resulted in the death of a 4-year-old, the elderly driver is increasingly seen as a major public safety concern. Read more

Reporting of serious reportable events may impact peer review

By Mario Motta, M.D.
For some time, state regulations on hospital licensure have required hospitals to report serious incidents that affect patient health and safety to the Department of Public Health (DPH). Read more

Q&A: Serious Reportable Event reporting and peer review

Q:  Do the new state Department of Public Health requirements for hospitals and other facilities to undertake a “root cause analysis” as part of disclosing Serious Reportable Events compromise the confidentiality of physician peer review?

“We firmly believe that any public reporting of SREs or their analysis should not be viewed as a voluntary relinquishment of a provider’s peer
review safeguards and that protecting the integrity of the peer review process is essential for improving patient safety,
our most important responsibility. There should be more explicit protections to ensure that peer review discussions are exempt from any public review.”
—Timothy F. Gens, senior vice president, policy & regulation, general counsel, Massachusetts Hospital Association

“While this new regulation does not directly jeopardize the confidentiality of individual physician peer review, there is a concern that erosion of protections for one type of peer review may weaken an entire system that is designed to promote quality care. … The new regulations require that the root cause analysis – which previously remained confidential – be provided to the payor and the patient as well as to DPH, which appears to create a conflict with
existing peer review law.”
— Pamela Heacock, associate general counsel, UMass Memorial Health Care Inc.

“I think there is an irreconcilable tension between at least one section of the regulations and the confidentiality provided to a medical peer review committee under state law. Shortly after the peer review privilege was created, the Board of Registration in Medicine promulgated regulations to implement their newly created patient care assessment duties, some of which were challenged by a consortium of hospitals as violating the peer review statute. It may be that hospitals and or medical staffs will need to mount a similar challenge to these new DPH regulations.”
— Paul R. Cirel, partner,
Dwyer & Collora, Boston

“As best I can tell, the Legislature did not intend to undercut the medical peer review privilege when it adopted [the new reporting requirements]. I anticipate that hospitals will complete the new reporting form by providing a short, non-privileged narrative. For those SREs that may also become the subject of a medical peer review proceedings, a hospital may do well to conduct two separate review processes. The first is not privileged and would focus on preventability and provide the basis of the hospital’s SRE report to DPH. The second would likely include a root cause analysis that remains privileged as part of the confidential medical peer review proceedings.”
—Regina Rockefeller, partner, Nixon Peabody health services group, Boston

Doctor’s View: The public health problem of domestic violence

It was another first for the state. Last June, Governor Patrick signed a violence intervention bill making Massachusetts the first state to require health care providers to refer victims of violence to a variety of social services.

The impetus behind the action was clear: the soaring number of deaths from domestic violence. Murders of domestic partners in the Commonwealth were nearly three times higher in 2007 than in 2005, reaching 42 in 2007, with an additional 13 suicides. In 2008, 25 homicides occurred, with 10 suicides.

Read more

Q&A: Domestic violence reporting

Q: What steps can be taken to improve or clarify the reporting system for suspected acts of domestic violence?

“Many victims’ experiences of domestic violence do not fit into categories of prosecutable crimes. A seemingly innocuous data collection system can compromise the health care provider’s primary responsibility to increase victim safety. Every health care worker needs deep training and support to conduct a conversation and screening in a safe and respectful environment, to identify both victims and perpetrators, to address these complex and often high-risk situations and to facilitate referrals to domestic violence programs and other resources in ways that allow for victim autonomy in decision-making and do not endanger them or their children.”

- Isa Woldeguiorguis, director of policy & systems advocacy, Jane Doe Inc.

“By creating a new domestic violence unit in Worcester and giving a direct supervisor to three full-time attorneys, we can put a renewed focus on these cases. Because 30 to 60 percent of domestic violence cases also involve child abuse, filing a [report] with the Department of Social Services (DSS) lets the offender know that we’re watching. But we also need to show compassion to the victim’s family - in these times of economic stress, going straight for a guilty verdict is not always the best solution. If a spouse loses his job and his house, it’s the mother and children who suffer.”

- Joseph D. Early Jr., Worcester County District Attorney

“Educating staff on a regular basis about the many facets of domestic violence, from its most concrete to more obscure forms, is a very important step. For staff that have a suspicion that domestic violence is occurring but are hesitant to report it, I think it would be helpful to have a system in place where workers are organized into small groups of two or three, so that they can immediately consult with colleagues on these difficult decisions. In such emotional situations, this kind of close-knit support could mitigate the stress of the environment and help them to make a clearer decision about the next steps to take.”

- Manisha H. Bhatt, senior counsel, Greater Boston Legal Services

“The most important thing to consider when responding to suspected domestic violence is the safety of the victim. Providing resources and information about victim services, including safety planning, counseling and shelter, can be critical. Policies that diminish a victim’s control over decision-making with respect to reporting can have the unintended consequence of diminishing victim safety. When health care providers are encouraged to screen for domestic violence, the goal is not to increase reports to officials, but to provide potentially life-saving and empowering information and choices to victims as well as to make them aware of the effects of domestic violence on their health.”

- Carlene Pavlos, director, Mass. Department of Public Health Violence & Injury Prevention Program

The time has come for liability reform

Medical liability in Massachusetts has become an extraordinary burden on our health care system.It produces years of litigation, financial inefficiencies, a culture of secrecy and a “blame game” mentality, plus unaffordable premiums for physicians. It is dysfunctional for physicians and patients.

Harvard School of Public Health Professor Michelle Mello has described it aptly: “For compensation, deterrence, corrective justice, efficiency and collateral effects, the system gets low or failing grades.”

The latest indication of the system’s failings comes from a survey of Massachusetts physicians about the practice of defensive medicine: tests, imaging, referrals, consultations and hospitalizations ordered by physicians out of the fear of being sued.

Read more

Q&A: New model for medical liability system

Q:  Should the medical liability system be transformed into a new model that emphasizes safety, avoidable error, injury compensation and alternative dispute resolution?

“A more enlightened approach to medical liability would distinguish providers who generally drive toward quality improvement and safety. The potential for those providers to opt into a different compensation system would have the dual effect of treating patients and providers fairly while creating an incentive to become eligible for the ‘opt-in’ system. The new model ought to incorporate three salient features: a trustworthy evaluation to certify the provider infrastructure; transparent quality performance reporting; and a closed clearinghouse – not available to plaintiffs – to which providers in the alternative system must report what they have learned from circumstances that created harm.”

—Alice Gosfield, Esq., health lawyer, Philadelphia, Pa., represents physicians and group practices

“Changes in the medical liability system need to originate at the provider/institutional level, such as the system adopted by the University of Michigan Health System, whose approach is: ‘Apologize and learn when we’re wrong, explain and vigorously defend when we’re right, and view court as a last resort.’ Any changes should consider early non-binding evaluation by neutrals; reject caps for non-economic damages; adjust or eliminate the charitable immunity cap; and provide a more efficient, cost-effective method for resolving smaller claims.”

—Robert H. Astor, Esq.,
plaintiffs’ attorney, Springfield

“Studies about defensive medicine and the suggestion that there is a medical malpractice crisis shift the focus away from where it really belongs: the victims for whom medical error has been a life-changing event. A trial by jury is usually the last resort for those victims of medical error for whom justice is not offered or available. We should all strive for the day when medical errors are rare, readily acknowledged and victims are fairly compensated. For the foreseeable future, the trial court and jury system and the level playing field that they afford are many people’s last hope and only opportunity for justice.”

—Kimberly Winter, partner at
White, Freeman & Winter, Weston,
handles medical negligence cases and provider licensure.

“My approach to reforming the system would include: (1) a tribunal system more in keeping with the legislative intent, rather than a system that allows the plaintiff to get by so long as she presents a medical opinion letter; (2) a requirement that the defendant be notified 90 days before a suit is filed; (3) encouragement of open discussion of unfavorable medical outcomes by providing that ‘apologies’ be inadmissible in court; (4) limitation of  recovery against an individual physician to her insurance limits; (5) requiring that experts be board-certified in the same specialty as the defendant; and (5) a medical malpractice court with specialized judges.”

—John Bagley, partner at Morrison Mahoney, Springfield; represents
physicians

Mandated care requires a careful balancing act

Physicians and other health care providers are operating under an increasing number of restraints, guidelines, regulations and laws.

These “mandates” are coming from multiple sources: state and federal governments, the courts, insurance companies, regulatory agencies and independent health care organizations that accredit and certify facilities and programs.

Read more

Why saying ‘I’m sorry’ helps to heal: Patients’ attorneys shed light on the benefits of apology

By Jeffrey N. Catalano, Esq.
and Lisa G. Arrowood, Esq.
Mediation in a medical negligence lawsuit we handled last year started like any other, but took an unexpected twist.
The case involved the tragic death of a young girl, whom we will call Samantha, from an undiagnosed and untreated shunt malfunction in her brain. Read more

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