The Massachusetts Medical Society wishes to be recorded in
strong support of House 605.
Massachusetts is engaged in serious efforts to create and
foster improved delivery models for care. Accountable Care Organizations
(ACO’s) are growing in Massachusetts but not yet reaching their anticipated
goals. This legislation would facilitate the formation of ACO’s by extending
the same statutory framework for peer review which currently exists in
hospitals to new entities such as ACO’s. If health care providers are to
improve care for patients they must establish vigorous systems for reviewing
the care that is being delivered, regardless of the setting.
Section one of this bill would extend peer review coverage
to all sites and professional organizations in which it takes place.
Section two of this legislation would reduce health care
costs by eliminating the statutory four percent premium increase on interest
paid on liability claims against health care providers. In the current
environment, it is unfair to add a 4 percent or higher premium over and above
current interest rates to judgments.
Section three of the legislation addresses a decision of the
Supreme Judicial Court which allowed liability claims to be brought against
health care providers even in situations where the adverse outcome the patient
experienced was likely to have occurred regardless of the quality of the care
provided. This decision recognized the “loss of chance” doctrine in
Massachusetts. This doctrine allows plaintiffs to recover in cases where their
likelihood of a better outcome, regardless of the approach taken, was below
50%. This reinterpretation of causation
as any deviation from the best possible outcome is likely to increase defensive
medicine costs and impact decisions on standards of care and treatment
protocols in ACO’s. In addition it may
add to the costs of defending an increasing number of suits brought against
individual health care providers and newly forming accountable care
organizations. The loss of chance doctrine sets an unfair standard in judging
health care providers and should be legislatively reviewed for its impact on
costs and access.
Section 4 corrects a problem with a few cases in
Massachusetts in recent years. Some cases have been brought against providers
of liability coverage for failure to settle a claim prior to a judgment’s being
entered in the case. The statutes state that the triple damages applied if such
a suit is successful are a multiple of all underlying judgments in a case. So
in the case of a 3 million dollar verdict against a defendant, the coverage
provider, often a local self-insured hospital, would be subject to an
additional 30 million dollar award for defending the underlying case. Our
proposal would create a new way of determining the actual damages to a
plaintiff. If the court finds that a settlement was unfairly withheld, the
damages are triple the interest on that settlement or award rather than the
entire underlying award. Our proposed language is applied to the problematic
language in Chapter 93A and would have an impact on all cases brought under the
statute.
In combination, these three provisions will provide fair and
equitable reforms that will encourage the formation of new health care models
through the adoption of responsible improvements in the environment for health
care delivery.
The MMS urges your support for House 605.
