Posted by: justransparency | March 14, 2017

Continuing the March Toward Medical Transparency.

At at time in our society when public marches bring to the forefront progress we need to make on a variety of important issues, one march is of the more the silent type.  That is the march toward increasing transparency following medical injuries, which are the third leading cause of death in the U.S.  More and more hospitals are signing up for disclosure programs such as those created by the Massachusetts Alliance for Communication and Resolution following Medical Injury (MACRMI).  I have been proud to be the Massachusetts Bar Association’s representative on this Alliance for several years.  I have been pleased with how receptive this Alliance and its associated hospitals have been to the concept of involving an attorney on behalf of the patient early on.  They recognize it is an imperative that is both moral and efficient.  The patient has the security of an advocate and counselor in her corner in achieving appropriate compensation.  The hospital and insurer see the attorney as someone who can facilitate a productive resolution by advising his client of the risks of rejecting a reasonable offer and choosing protracted litigation.

Nevertheless, many remain skeptical, which is unfortunate.  Still too many doctors and insurers fall back on the old “deny and defend” mentality to avoid accountability.  Still too many lawyers think that suing first, asking questions later, is the best approach.  Neither tactic is beneficial to the person who matters most in these circumstances, the patient.

Recently, the Washington Post wrote an article confirming the benefits and challenges of apologies and disclosures following medical errors.  As I stated in the article, attorneys provide very important roles in helping patients to move on with their lives by achieving fair compensation as soon as practicable.  But in my experience, good attorneys can help both sides navigate through the turbulent emotional waters that often impede just resolution.

So as time marches on, so do we.  And we hope many more will join us so that for every fight we win against something like cancer, we don’t lose another to preventable medical errors.



Recently, a Boston-based doctor underwent a hysterectomy during which a power morcellator was used, and during the procedure undetected cancer was spread throughout her abdomen, resulting in advanced cancer.  The FDA recently reported that three major Massachusetts hospitals failed to properly report patient deaths and injuries potentially caused by medical devices.  The report follows the FDA’s investigation last December of Massachusetts General, Brigham and Women’s, and UMass Memorial, as well as other hospitals around the country, concerning infections possibly linked to duodenoscopes, which examine the small intestine, and the potential spread of uterine cancer by a surgical device known as a power morcellator, which cuts up tissue. Most concerning is that the FDA discovered that the Massachusetts hospitals and others failed to timely report incidents where patients were harmed by these devices, or failed to report the incidents at all.

The FDA requires hospitals to report patient injuries and deaths suspected to be caused by medical devices.  The reason is obvious.  Reporting allows the FDA to analyze potential harm to patients, and determine whether new safety regulations are needed.  Without hospitals fulfilling this mandate, the FDA cannot ensure that devices used in medical settings are safe for patients, potentially compromising the safety of any patient exposed to such devices.  This effectively strips patients of being able to make informed decisions about their medical care, and could expose them to an increased risk of harm or death.

Todd & Weld firmly believes that transparency is a solution to rampant harm and death to patients to due to medical errors and medical devices.  I am proud to participate as the only attorney representing patients on the Massachusetts Alliance for Communication and Resolution following Medical Injury (MACRMI), which promotes hospital programs focused on disclosure and resolution after a medical mistake. 

I look forward to discussing these programs with attorneys of the Worcester County Bar Association on Monday, February 6th from 4 pm to 6 pm at the Worcester Registry of Deeds.  Please contact me if you would like more information about this event.


Posted by: justransparency | March 10, 2016

“We want to say we’re sorry. Now what?”

As a dedicated member of MACRMI, I find it very encouraging that hospitals across the country are embracing the concept of admitting medical errors to patients and apologizing for them.  This was reinforced in a recent Wall Street Journal article where it was reported that “Evidence has accumulated that the approach can improve patient safety and substantially reduce malpractice costs.”  So, now that providers know that apologizing is imperative, for many the question is “Now what?”  Lost in the discussion is how and when to apologize and admit the error.  As an attorney representing patients, I have seen many instances where the hospital intends to do the right thing, but the message is interpreted negatively by the patient.  Most of the time, the admission and apology helps to diffuse the situation and often leads to an early non-adversarial result.  However, it is sometimes the case that the apology or admission initially is seen as an acknowledgement that the provider let them down, and the reason may not be easily excusable (e.g. giving the wrong medication, failing to convey a negative imaging report or lab result).  In all cases, it is important to remember that those who have been harmed are suffering substantial physical and emotional pain after the event.  Their judgments and perceptions are not impartial or objective, especially at the early stages.  They are also overwhelmed with grief, depression, and even anger and may not be in a place to deal with speaking with doctors, risk managers, or insurance claim representatives right away.

The WSJ article goes on to state that “The programs require a commitment from hospital administrators and physicians to be transparent about risks and adverse events.  Patients can still seek legal representation at any time.”  However, for such programs to be effective, patients should be encouraged to seek legal representation early in the process, and certainly before any meeting to discuss what happened and how the provider wants to resolve it.  To accept this concept, it is important to view plaintiff’s lawyers differently than many have viewed them.  Understand them not as obstacles to resolution, but as collaborators toward it.  Many of us understand that one of the hats we wear is as “counselor”, in the broadest meaning of the term.  In that role, attorneys can help patients process information and respond appropriately to pave the path toward early resolution while also protecting their rights.

MACRMI embraces the concept of encouraging patients to seek legal representation because we realize that is it not only beneficial to the patient and the process, it is also the ethical thing to do.  Plainly stated from an objective point of view, few of us would want our elderly parent, infirm friend, or even adult child having substantive discussions about resolution without legal assistance.  Hopefully, this is the mindset all hospitals will have when they decide to embrace the noble goal of transparency.

Posted by: justransparency | October 26, 2015

Double Booking Surgeries? Are You Kidding Me?!

This blog has been dedicated to an impassioned and balanced view based on evidence surrounding medical errors.  I am not one for histrionics or grandstanding.  But when I read the Boston Sunday Globe Spotlight article revealing that Massachusetts General Hospital surgeons are routinely doing two operations at once, I nearly choked on my bagel.  I had just returned from visiting my father after his heart surgery in Phoenix and, among all of the questions I asked the doctors about his surgery, it never occurred to me that I should have asked, “Will you be doing another operation at the same time as you will be doing my father’s?”  Before reading the article, I would have imagined that the surgeon would have laughed in my face at such a preposterous question.  It would be like asking a pilot if he is going to be flying two planes at once.  While that’s physically impossible, whereas doing two surgeries at once technically is not, they both seem equally incomprehensible.

We are not living in a country where medical errors are decreasing.  Errors and deaths are increasing at an alarming rate every year.  Currently, there is a much greater chance of death from a medical error than from a car accident.  There is simply no rational argument that double booking decreases those odds.

Concurrent surgeries indisputably increase the risk of complication. If something goes wrong, and the attending surgeon is not there, the patient must remain under anesthesia longer, increasing the risk of death.  Furthermore, most surgical patients are not even aware that they are consenting to a resident doing their operation.  A resident is a “doctor in training”.  So, things can, and often do, go wrong.  Some of these are small and can wait a while until an attending surgeon intervenes to correct the problem.  Some require immediate attention and correction.  When that happens, you want the pilot there  immediately to take over the controls.

Who among these surgeons who double-book would permit a surgeon operating on their daughter, son, mother or father to do the same?  Surgical patients have a right to the undivided attention of those who literally have their life in their hands.  These surgeons are doing these procedures for two reasons:  one because they want to heal others with their skills; two, because they make a good living doing this.

No one is disputing that skilled surgeons deserve to make a good living.  They work exhaustively under extreme circumstances treating patients with complicated, sometimes life-threatening conditions.  But it is for these exact reasons that double booking should be absolutely prohibited.  These circumstances already make the patient extremely vulnerable to suffering from a mistake.  Hospitals should be trending toward decreasing, not increasing these risks.

The only argument by MGH in the Globe article for permitting this is to increase “efficiency.”  Is there anyone who doesn’t understand that “efficiency” means the ability to make more money?  Making more money is not a sin, but it is when its at the expense of risking a patient’s life.  Under these circumstances, when things go wrong and the patient has been harmed, the physician and the hospital are asking for a lawsuit.

In Massachusetts, we enacted a law prohibiting texting while driving so that others do not get killed or harmed by drivers failing to give the road their undivided attention.  Do we really need to do the same to force physicians to do this during surgery?  Do we need a law requiring them to do what is ethically and morally right?  If so, enlist me as an advocate for such a bill.  I promise it will get my undivided attention.


Posted by: justransparency | August 11, 2015

More Progress on Patient Safety.

I was pleased to have been a part of the well-attended 2015 CARe Forum at the Massachusetts Medical Society on patient safety and transparency efforts in Massachusetts.  The march continues on improving patient safety, transparency, and responsible advocacy for those who have been harmed by medical errors.  For an insight into a successful resolution of a case of unacceptable medical error, where the hospital admitted its mistake and worked with me to resolve the matter amicably, please see these videos available at the MACRMI website.

Also, please join us at the National Patient Safety Foundation’s Lucian Leape Institute 8th Annual Forum on patient safety, where I will be speaking on the approach attorneys can take to achieve fair and expeditious resolution of medical malpractice cases on behalf of their injured clients.



Posted by: justransparency | February 24, 2015

The Medical and Legal Community Discuss CARe Program at MBA.

The Massachusetts Bar Association (MBA) and MACRMI recently co-sponsored a seminar on the CARe program.

CARe stands for Communication, Apology, and Resolution. It is a program developed by several hospitals and health care organizations in Massachusetts as an alternative to costly, lengthy and emotionally difficult lawsuits after a medical injury. This model is an approach for healthcare systems and liability insurers to respond to cases of preventable harm. When something goes wrong at a hospital or health care office, it is a better way for the patient to receive information, an apology, support, and compensation (if appropriate).

The audience consisted mostly of attorneys, including those who represent patients. The purpose of the seminar was to educate lawyers on the program so that they could understand and appreciate its mission.  In that regard, the program was a resounding success.  Dr. Alan Woodward and Dr. Ken Sands provided a history of the program and the current results of its implementation at Beth Israel Deaconess Medical Center.  Consistent with transparency of CARe, many facts and data were revealed during the program with regard to the impact of these programs on resolving cases early and the progress that has yet to be made.

We also had the benefit of a successful plaintiff’s attorney from Michigan, George Googasian, who spoke of the benefits of a well-known disclosure and offer program in that state.  He convincingly dispelled notions that such programs are a “wolf in sheep’s clothing” or an attempt to short-change patients by offering them money at the early stages of their injury when they are most vulnerable.  All panelists repeatedly emphasized that the participation of the attorney for the patient is highly encouraged in order to ensure that the process works fairly.  In particular, the attorney’s role is to make sure that the settlement is sufficient to take care of their past, present, and future needs of the patient. The attorney also is there to ensure that the terms of the settlement agreement are fair and to assist with exploring and negotiating any medical liens that may subtract from the settlement offer.  Plaintiff’s attorney Jeffrey Catalano also explained the necessity of such programs to improve patient safety efforts.  In particular, this program encourages healthcare providers to disclose and learn from their medical mistakes.

Defense attorney Kevin Giordano also discussed the importance of having the defense bar buy in to this program.  He expressed that it is the right thing to do and encouraged plaintiff’s attorneys to also be open-minded to resolving these cases fairly.  Finally, patient advocate Linda Kenney of MITSS spoke of the importance of appreciating both the healthcare provider’s and patient’s emotions when a medical error occurs and the need for early healing for both parties, which the CARe program facilitates.

The program was universally well received, as evidenced by written and verbal comments following the presentations.  Importantly, there were many prominent plaintiffs’ medical malpractice attorneys in the audience, including the current president of the Massachusetts Academy of Trial Attorneys.  Everyone was very interested in the program and invested in future efforts to make it work.  As the first phase of an effort to solicit the collaboration of all attorneys, it was a tremendous success.

It is encouraging to learn that attorneys, healthcare providers, and insurers can find a common ground when it comes to trying to prevent avoidable medical errors and to providing assistance to those who are injured.  Although the road ahead is still long, it promises to be well-paved.

If you missed the event but would like to view it via webcast, please follow the link below and register as a “Non-Member” of the MBA (unless you would like to register to become a member of the MBA). This webcast is available for anyone to view, so check it out!

– See more at:

Posted by: justransparency | September 20, 2014

A Case in Point.

Just one day after my last post below, the Boston Globe reported on a medical error that led to the tragic death of a patient during surgery at Tufts Medical Center.  This error was attributed to “cognitive bias.”  Apparently, the surgeon selected the wrong dye for the procedure based on the appearance of the bottle and admitted his mistake.  The Boston Globe published my letter to the editor on this case.  It is frustrating to learn that after the doctor admitted the mistake, the medical malpractice insurance company proceeded to deny it.  The new law referenced in the article on which I worked as an officer of the Massachusetts Bar Association along with the Massachusetts Academy of Trial Attorneys and the Massachusetts Medical Society was seen as a triumph of collaboration.  Lawyers and doctors worked hard together to hammer out legislation intended to increase transparency and disclosure following medical errors so that early and just compensation can be achieved.  It also allows a doctor to apologize, which helps the physician and patient to heal following an error.  The letter and spirit of the law is violated if the insurance company denies and defends claims of legitimate medical negligence.  With 440,000 deaths from medical errors each year, and a 70% increase in preventable medical errors according to a recent Globe article (7/27/14), pursuing a path of full disclosure, which leads to reform measures, and early resolution and compensation is a legal and ethical imperative.


Posted by: justransparency | August 30, 2014

Hospital Mistakes Jump 70% in Massachusetts.

According to a report published in the Boston Globe this summer (which probably received too little attention) medical errors and patient injuries increased 70 percent over last year.  It is unclear whether this increase is the result of better reporting of errors or more mistakes occurring.  It’s probably both, and it’s very disturbing.   More disturbing is the quote by an expert in the field; “Do I think things are getting better?  No.” said Dr. Allan Frankel, a former safety head at Partners Healthcare and now chief medical officer of Safe & Reliable Healthcare in Colorado.

When I started this blog several years ago, I began reporting on the number of medical errors and mistakes occurring using reliable, non-biased, scientific and governmental sources.  As a patient safety advocate, I hoped that eventually the numbers would decrease.  I had looked forward to reporting on the positive results of patient safety measures, with fewer errors and deaths from those errors.  Instead, I keep reading statistics like these.  Even more concerning, when I first reported on the number of medical errors that killed patients annually, the generally accepted number was 98,000 per year according to the Institute of Medicine.  That number is now widely understood to be an astounding 440,000!  I have no doubt that the increase is largely due to our improved ability to discover and record those preventable deaths that are caused by medical errors.  We now have better reporting requirements and more transparency than years ago, which has revealed the full extent of the errors.  It’s like when you find a few ants in your kitchen and assume its a small problem.  Then, you look behind the fridge and find out it’s an infestation.

So, we have found an infestation of errors.  How can this be addressed?  The solutions are complex and costly, but absolutely necessary.

They include assessing the mistakes from a top-down human factors perspective to find out how to improve systems in order to account for health care providers’ cognitive biases and knowledge deficits that lead to errors.  This analysis looks at errors from the perspective of how humans work in a clinical and hospital setting taking into account patient volume, workload, fatigue, proclivities etc. in order to create a system that accounts for these human limitations and works around them.  In other words, we must make things more intuitive.  This is not an easy task.  To quote Steve Jobs, it’s very hard to make something simple.

It’s also expensive.  However, as I drive or bike to work through the Longwood area every day (Boston’s hospital district with four major hospitals), I am awestruck by the constant rise of stylish new hospital buildings.  Imagine if some of this cost to improve outward was spent to improve inward.  Then, in a few years, I might be happily reporting that “Hospital Mistakes Decline 70% in Massachusetts.”



Posted by: justransparency | July 8, 2014

1 in 20 Adult Patients Misdiagnosed.

According to a recent study published in the Boston Globe, at least 1 in 20 adult outpatients receive an incorrect diagnosis from their doctor.  (This study appeared in the journal BMJ Quality and Safety this year.)  It further states that in more than 6 million patients a year in the United States, such misdiagnosis could have major consequences, such as a dangerous delay in cancer treatments.

The obvious message of this study is that there needs to be more coordination of care between patients, their care teams, and the healthcare system.  At the vortex of this is the patient, who must be his or her own best advocate.  I have written extensively about this in prior posts.  The new normal is for patients to get a second opinion when they receive a diagnosis they don’t feel comfortable with.  To decline to do so is at the patient’s own peril, medically speaking.

As and advocate for patients who are severely harmed by avoidable medical errors, I have come to appreciate how a failure to get a second opinion also creates peril for the patient in the legal justice system.  It used to be the case when I began practicing law 20 years ago that the challenge for a patient who brought suit against a physician or hospital was that the jury would be thinking that doctors and hospitals are incapable of making mistakes.  Now, most jurors actually appreciate how often physicians and hospitals make critical mistakes.  But, the new challenge for the patient is that jurors now think that patients who bring claims for failure to diagnose should have been smart enough to get a second opinion if they didn’t do so.

So the moral of the story is do not hesitate to get a second opinion.  Doing so may prevent a misdiagnosis and, therefore, prevent you from later having to explain to a jury why you didn’t.




Posted by: justransparency | April 10, 2014

Consumer Reports Weighs In on Medical Errors.

Consumer Reports May 2014 edition reports that “medical errors are linked to 440,000 deaths each year.”  This is a frightening statistic that is FOUR TIMES the previously widely reported statistic of 100,00o deaths per year published by the Institute of Medicine.  Importantly, the article offers tips on what patients can do to stay safe in the hospital:

1. Have a friend or family member with you to be your advocate.

2. Before a planned hospitalization learn as much as you can about what to expect while at the hospital.

3. If something goes wrong, keep a journal documenting what is happening.

It also includes a rating of Top Scoring hospitals based on safety.  This is the type of rating system that can incentivize hospitals to improve.  For example, statistics demonstrate that pneumonia patients in top-scoring hospitals are at least 40% less likely to die within 30 days of admission than similar patients in low-scoring hospitals.  Who would not want to know this when deciding which hospital to go to for treatment?

As I have written before in this blog, the reason that cars are safer and that highway deaths are at all time lows is because automobile manufacturers are rated on the safety of their cars.  This information is available to all consumers via numerous web sites.  Once we get to the point where all hospitals are rated based on safety, and consumers appreciate that they have important choices in which hospital they can go to, we will be on the “road” to a safer medical system.



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