A new law in Massachusetts and a pending decision in Oregon could change the way that both lawyers and doctors approach medical malpractice lawsuits. Massachusetts governor Deval Patrick has overseen a joint decision of a committee of physicians and attorneys in creating the recently-signed legislation that allows physicians the opportunity to fully disclose any mistakes in surgery or treatment to a patient in order to potentially avoid lawsuits.
Under the governor’s orders, the physicians and attorneys are currently in a 6-month “cooling off” period to negotiate any remaining details. While some critics of this legislation see it as a convenient scapegoat for doctors to avoid admitting guilt and liability, it actually increases the amount of compensation for patients who are victims of legitimate malpractice. Previously, patients who were the victims of malpractice or negligence as the result of treatment at a non-profit hospital could only receive $20,000. Now they can receive $100,000.
Ultimately, the physicians involved in making this decision believe that it will improve the quality of treatment in Massachusetts hospitals and medical treatment facilities. According to Boston.com, former president of the Massachusetts Medical Society Dr. Alan Woodward believes this will put an end to “defensive medicine” which is the practice of using multiple, unnecessary treatments to actually avoid committing malpractice.
"If you take the fear out of the system...then you get people to stop practicing defensive medicine and to start practicing evidence-based medicine," Woodward said.
Additionally, Jeffrey Catalano, Vice President of the Massachusetts Bar Association, said that there needs to be a “good faith effort” from both the attorneys and the physicians during this period to ensure that there are no other delays in current litigation.
As far as the legal aspect, this isn’t expected to eliminate the existence of medical malpractice – there were 485 cases of medical malpractice reported in Massachusetts in 2011. In fact, the lawyers involved in developing this legislation – including representatives from the Massachusetts Bar Association and Massachusetts Academy of Trial Attorneys – believe that it will help new victims receive better compensation in faster trials moving forward.
Meanwhile, under the supervision of governor John Kitzhaber, a group is discussing similar legislation in Oregon as well. According to The Oregonian, the two sides are meeting this week, but it is too soon to determine if the outcome will be similar to that of the Massachusetts assembly.
All of this comes in the wake of the recent decision by the Missouri Supreme Court to overturn a 2005 decision to set damage caps on medical malpractice lawsuits. Florida is believed to be the next state to make such a decision, as the state’s supreme court has been considering the elimination of Florida’s medical malpractice caps, which currently stand between $500,000 and $1.5 million depending on circumstances.