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.



Posted by: justransparency | November 23, 2013

The Biggest Mistake Doctors Make. A MUST Read.


Mistake (Photo credit: Wikipedia)

The Wall Street Journal recently reported on the biggest mistakes doctors make on November 18, 2013.  This may be the most important article on this topic I have read in years.  It begins with discouraging news – “medical errors lead to permanent damage or death for as many as 160,000 patients each year, according to researchers at Johns Hopkins University.”  (Every time I read data on deaths and injuries from medical errors, the numbers continue to increase.)  Diagnostic errors appear to be the main problem, which cause considerable harm or death 85% of the time.   The article includes a chart that delineates the “common biases” that cause doctors to make incorrect diagnosis.  It reads like a script of every medical malpractice case I have ever settled or tried.  

Our firm recently settled a tragic medical malpractice case that exposed almost all of the biases discussed in the WSJ article.   It involved the death of a 19  year old girl who presented to the ER at 4:30 am with complaints of severe, stabbing chest pain.  This followed a week of gastrointestinal illness, that had improved before admission to the ER.  However, the ER doctors heard that she had vomiting and diarrhea that week (not that it improved) and quickly assumed her “chest pain” was really  “upper abdominal pain” and not a sign of a heart problem (which was pericariditis).  [CONFIRMATION BIAS].  Besides, they thought, ER doctors see GI illnesses all the time in the ER  [AVAILABILITY], and pericariditis is rather rare.  [ZEBRA RETREAT].  They gave her fluids because they figured she must be dehydrated, even though fluids did not improve her condition [ANCHORING].  Sadly, this only increased the pressure on her heart, which actually had a treatable virus that they ignored.  They also assumed that because she was a slender teenage girl, she may have anorexia [GENDER BIAS & ATTRIBUTION ERROR].  They never bothered to ask her pediatrician who called into the ER whether she had any psychiatric history [UNPACKING PRINCIPLE].  The ER doctors admitted her to the pediatric floor and figured that she would be further evaluated there, so there was no need to further investigate her deteriorating condition in the ER.  [NEED FOR CLOSURE].  When she arrived on the in-patient floor, the residents and interns who took over assumed she must have a GI problem because that’s what the ER attending assumed and they pumped her with even more fluids.  [BANDWAGON EFFECT & DIAGNOSIS MOMENTUM.]   Her heart condition went undiagnosed and untreated for 15 hours in the hospital while they exacerbated her condition with copious amounts of fluids.  Eventually, she went into cardiac arrest and died.  A cardiologist was never contacted . . .  until after she went into cardiac arrest.  

These problems are all variations on a theme.  Doctors will usually take the path to a diagnosis that is easiest, efficient, and expeditious.   This is a dangerous habit for many professions, whether you are a doctor, a structural engineer, or a lawyer.  The good news is that this largely can be solved by asking – “How can I prove myself (and others) wrong?”  Our poor teenager was doomed the moment she set foot in the ER because no one asked that question. 

So what can you do for yourself and your family?  See the WSJ chart.  In short, get your story out, ask lots of questions, and do NOT assume that things are happening as you would expect.  For example, if you do not learn the result of a test result, do not assume it is reassuring.  Think of yourself as a “partner” with your physician in your health care decisions.  And,  when you are prepared to accept a diagnosis from a doctor that does not seem right, ask yourself:

“How can I prove myself wrong?”‘

Posted by: justransparency | October 28, 2013

More to the Point Below.

Another recent article in the New York Times emphasizes why patients are afraid to ask the questions to the answers they need to know.  (See post “Never (Should Be) Too Awkward to Ask” below.)  She discusses her own personal path through the medical care system, an area where numerous patients are misdiagnosed.

The author refers to a recent experiment where a group of adults was asked to make a decision while contemplating an expert’s claims.  A functional M.R.I. scanner gauged their brain activity as they did so. The results showed that when confronted with the expert, it was as if the independent decision-making parts of many subjects’ brains “switched off.”  They simply ceded their power to decide to the expert.

The author also reports that the neuroscientist Tali Sharot conducted a study in which she asked volunteers what they believed the chances were of various unpleasant events’ occurring — such as developing Parkinson’s disease.  She then told them what the real chances of such an event happening actually were.  “What she discovered was fascinating.  When the volunteers were given information that was better than they hoped or expected — say, for example, that the risk of complications in surgery was only 10 percent when they thought it was 30 percent — they adjusted closer to the new risk percentages presented.  But if it was worse, they tended to ignore this new information.”

These studies demonstrate three major reasons why patients are not more actively engaged in, and educated about, their own or family member’s medical care:

1.    We believe that all health care providers are experts incapable of making any mistakes and don’t want to ask seemingly rude questions.

2.    We are prone to anxiety, stress and fear that distort our choices and make us subject to “tunnel vision” and therefore less likely to inquire about information we don’t want to hear.

3.    We have a natural tendency toward optimism and to hear only the information we want to hear and focus on anything that agrees with the outcome we want. 

As the author of the Times article points out, we need to “switch our brains back on” when it comes to health care.   We must be as assertive and investigatory about our medical care as we are about the new cars we purchase.  No one walks into a dealership these days without having researched the reliability, safety, and pros and cons of purchasing a particular vehicle.

Despite best intentions, mistakes, miscommunications, and forgetfulness happens in the best and busiest hospitals all across the country.  The inquisitive and educated patients are the ones doing their part to ensure that the health care system works as intended.  


Posted by: justransparency | October 14, 2013

Never (Should Be) too Awkward to Ask.

This from a recent Wall Street Journal article:  “It’s a simple enough request, but for patients and families who feel vulnerable, scared or uncomfortable in a hospital room, the subject can be too intimidating to even bring up with a doctor or nurse.”

I ask readers to select which of the following questions the WSJ article is referring to:

1.  To a surgeon:  Is one of the potential risks of the operation that I could become permanently disabled or die?

2.  To a nurse: Are you sure you are giving my father the right medication?

3.  To a resident physician trainee:  Will you be doing the operation or will the surgeon be doing it?

4.  To an ER physician:  Did you consult with a cardiologist about whether my EKG really is normal?

5.  To any hospital staff person:  Have you washed your hands?

If you guessed No. 5, you are correct.  The question that seems the least threatening of all of these questions is not asked.   However, despite the fact that infections cause 100,000 deaths per year, according to this article, and that hospital staff comply with hygiene protocols only 50% of the time, patients never ask about hand washing.  The reasons are not shocking.  Many patients assume it is not necessary to ask that question.  However, even if told about the importance of asking this question, they still refrain from asking it out of fear of seeming rude, or appearing like a “needy, problem patient.”  Will this question induce eye rolling and a huffs from certain health care providers?  Yes, of course.  It is important not to let that stop you?  Yes . . . of course.

In fact, the other questions are even much more critical to ask given the flawed and dangerous state of our medical system, but  are very rarely asked for the same reasons.  If patients can’t get themselves to ask whether a staff person has washed his hands, how are they ever going to prevent a life-threatening mistake by asking a question such as whether they or their loved one are being given the right drug?  It is important to understand that the old ways of trusting doctors and nurses to do the right thing every time has gone the way of black and white TV shows.   Not because they intend to cause harm, but because carelessness is an epidemic in our busy, fractured, health care system.

It is a new and very dangerous world and the educated and assertive patients are the ones doing their part to ensure that the health care system works as intended.  These are the patients who increase their chances of  spending next Thanksgiving fighting family for the last juicy drumstick, and not spending it in a hospital room fighting a preventable infection.

Posted by: justransparency | August 13, 2013

Tenet Purchases MetroWest Medical Center.

Vanguard Health Systems Inc., the parent company that owns MetroWest Medical Center in Framingham and St. Vincent Hospital in Worcester, is being sold.   Tenet Healthcare Corp. of Dallas is buying the Nashville, Tennessee based Vanguard (a national network of 28 hospitals and facilities) for about $1.8 billion.   This is part of what the New York Times reported as part of the biggest wave of mergers since the 1990s, a development that is creating “giant hospital systems that could one day dominate American health care.” 

Hopefully, by combining, hospitals can reduce costs and devote more financial resources to investing in patient safety measures like electronic medical records.  In many cases, corporate mergers are good.  They can lead to innovations.   It is important that out-of-state hospitals bring new ideas in patient care in order to better serve the patient population that depends upon that hospital to save lives.   In order to do so, it is important for foreign state hospital systems that operate in numerous states not to be out of touch with the community they serve and not to put profits over safety.   This is one way to reduce the nearly 100,000 death due to preventable medical errors each year.

Posted by: justransparency | June 28, 2013

Bar moves to stem skepticism as med-mal reforms take effect.

The following article was recently published in Lawyers Weekly.

MBA gets seat on panel overseeing process

The Massachusetts Bar Association has taken action to head off lingering skepticism over the landmark medical liability reform known as “disclosure, apology and offer.”

Aimed at settling medical-malpractice claims, the law is off to a slow start after going into effect six months ago. Proponents remain enthusiastic about its potential, including one plaintiffs’ lawyer who lobbied to get the MBA a seat on the organization spearheading the reforms in an effort to ensure they do not result in an end run around attorneys.

Last year, three principal groups — the MBA, Massachusetts Medical Society and Massachusetts Academy of Trial Attorneys — struck a deal on enabling legislation that provides for a 150-day pre-litigation period following a required notice to providers of a patient’s intent to sue (unless the statute of limitations is nearing); the sharing of all pertinent medical records between patients and providers; full disclosure of medical errors by providers; and the inadmissibility in court of statements of apology by providers (unless they later make a contradictory statement under oath).

The twofold hope was that malpractice claims could be quickly and satisfactorily resolved before costly and lengthy litigation, and that open disclosure and discussion of medical errors — in contrast to the medical community’s acknowledged “deny-and-defend” posture — would help reduce future mistakes.

“When you put all your mistakes on the table, it forces you to look at it and say, ‘This happened. How do we prevent it from happening again?’” said Jeffrey N. Catalano, a plaintiffs’ attorney at Todd & Weld in Boston and proponent of the model in Massachusetts known as “Communication, Apology and Resolution,” or CARe. “That used to only happen with the filing of a lawsuit.”

However, the approach has been slow to get off the ground. The state’s largest medical professional liability carrier, CRICO, has received 45 of the now requisite pre-litigation notices since the law took effect in November but has successfully resolved only one, said Elizabeth A. Cushing, the company’s vice president of claims.

Cushing said she expects more cases to settle before their 150-day notice periods conclude. Other claims have been denied, and in some instances, she said, 150 days was not enough time to evaluate certain claims, and patients exercised their right to file a lawsuit.

Rachel E. Moynihan, a professional liability defense attorney at Morrison Mahoney in Boston, said the only effect she has seen so far is the driving up of defense costs on the front-end.

According Moynihan, as soon as a claim letter arrives, limited discovery and the engagement of experts take place “at the outset.”

“This is necessary as our response letters are potentially leading to a tipping of our defense as we respond to the claimant, without even having the benefit of a plaintiff’s expert letter or full discovery,” she said.

Further, Moynihan said, the “true breadth” of the admissibility or inadmissibility of a response to a claim is not known until there is judicial review on the subject. “Specifically, we don’t know if any response or apology could be used as an inconsistent statement — which can have a chilling effect. At this point, I would think anyone on defense counsel side is weary of making precedent on this issue.”

Both Cushing and Moynihan stressed that it is hard to pass judgment since the law is still so new; the very first 150-day pre-litigation notice periods are only recently concluding.

James G. Wagner, a litigator at Conn, Kavanaugh, Rosenthal, Peisch & Ford in Boston, expressed concern over the legislation shortly after it took effect. He said his concern has been neither allayed nor confirmed.

Wagner has a nursing home client with 200 facilities nationwide that implemented a similar voluntary program about two years ago. It is not yet clear whether the policy has avoided claims, he said, though “doing the right thing” is always a good idea.

The experience of the University of Michigan Health System, which served as a model for Massachusetts, is promising. A decade after a disclosure, apology and offer program was put into place, the Michigan health system reports that its opening-to-closing time for claims and legal costs are both down by half; the severity of claims is rising by just 2.6 percent compared to 10 percent nationally; and it has just over 100 pre-suit claims and lawsuits pending, down from more than 260 in July 2001.

More important, Catalano said, is the potential for the CARe model to reduce medical errors. According to statistics Catalano cited, such errors result in 100,000 to 200,000 deaths a year; those resulting in harm but not death cost society $29 billion to $38 billion in future care, treatment and medications.

“Anything that reduce[s] medical injuries, without reducing patient rights, is a good thing,” Catalano said.

However, other plaintiffs’ lawyers fear that the approach will, indeed, put patients’ rights at risk.

“I’m an optimist about how it’s going to work,” said Melissa A. White, a registered nurse and plaintiffs’ attorney at Pasquale & White in Boston. “Others don’t seem to be quite as optimistic. There’s distrust among the plaintiffs’ bar that health care providers won’t see it through.”
‘Perspective of counsel’

In an effort to ensure the integrity of the process, Catalano successfully lobbied for MBA representation on the board of the Massachusetts Alliance for Communication and Resolution following Medical Injury, or MACRMI, a group that is helping implement the CARe model and developing best practices to be used by health care providers across the state.

“Originally, the alliance didn’t have a lawyer who could represent the diversified interests of the bar in order to ensure that patients’ legal rights are adequately represented,” said Catalano, who will serve as the MBA’s first representative on the alliance. “There is that potential for skepticism, which is why it’s so important for the MBA to be a participant.”

Just as some plaintiffs’ lawyers fear the CARe model is designed to cut them out of the process, Catalano told the MBA House of Delegates that some insurers suspected a hidden agenda when he began lobbying to join MACRMI. But in a later interview with Lawyers Weekly, Catalano stressed that the group overall was receptive to including MBA representation.

“We’re very interested in having the perspective of counsel,” said Alan C. Woodward of the Massachusetts Medical Society. “That’s a critical piece to make sure attorneys are engaged and they understand this approach and the benefits of this approach. It’s clearly the right thing to do for patients, and it’s obviously what you would want as a patient. There’s always people questioning the motivations, but my perspective is it’s always better to be inclusive.”

Suffolk University Law School professor Gabriel H. Teninbaum was an initial critic of the medical liability reforms — particularly the lack of a requirement advising injured patients to seek legal advice — and is comforted by Catalano’s efforts.

“No doubt, there are those who would rather not have a patient safety advocate participate in MACRMI, and it’s precisely for that reason that folks like Jeff Catalano are needed,” Teninbaum said. “It’s vital to make sure that patient safety and consumer rights advocates are part of this ongoing conversation, not just hospital executives and insurance companies.”

Catalano said making sure that patients are encouraged, not discouraged from getting a lawyer will be one of his main objectives on MACRMI. Patients who are harmed or lose a loved one due to a medical error are very vulnerable, he said, and might be willing to accept “a small amount of money that seems like a lot of money when it is first offered.”

A lawyer can help those claimants understand what their long-term costs will be and what is truly fair, Catalano said.

“It’s important to have a lawyer at the table,” White agreed, “not to be an antagonist or subvert the process, but to counsel patient through process.”


Published: 9:34 am Wed, June 12, 2013 9:34 am Wed, June 12, 2013
By Brandon Gee Massachusetts Lawyers Weekly

Older Posts »



Get every new post delivered to your Inbox.

Join 62 other followers