SENATE, No. 1284

SECTION 1. Section 217 of chapter 111 of the general laws, as appearing in the 2004 Official Edition, is hereby amended by inserting at the end thereof, the following new subsection:-

7.      The office shall establish a Health Apology Pilot Program for participating hospitals and physicians with privileges at such hospitals who voluntarily agree to participate in said pilot project.  The program shall be based on the work of the Sorry Works! Coalition of Glen Carbon, Illinois, and the office shall administer education and training grants for participating personnel.   Such grants shall be funded through the assessment authorized in section 2 of this act and any additional sums which may from time to time be appropriated or donated.  Under the program, participating hospitals and physicians shall promptly acknowledge and apologize for mistakes in patient care and promptly offer fair settlements.  Participating hospitals shall encourage patients and families to retain their own legal counsel to ensure that their rights are protected and to help facilitate negotiations for fair settlements.  Participating hospitals shall report to the office their total costs for health art malpractice verdicts, settlements, and defense litigation for the preceding five years to enable the office to determine average costs for the hospital during that period.  The office is authorized and directed to develop standards and protocols, in cooperation with the medical malpractice analysis bureau of the division of insurance, to compare costs for cases handled in the traditional means and cases handled under the Sorry Works! protocol.  

SECTION 2.  Section 204 of chapter 111 of the general laws, as appearing in the 2004 Official Edition, is hereby amended by adding after subsection (a), the following:-

    (a)(1) Any statement of apology made by a physician or on behalf of a hospital participating in the Health Apology Pilot Program shall be confidential and shall be exempt from the disclosure of public records under section 10 of chapter 66 but shall not be subject to subpoena or discovery, or introduced into evidence, in any judicial or administrative proceeding, except proceedings held by the boards of registration in medicine, social work, or psychology or by the department of public health pursuant to chapter 111C, and no person who was in attendance at a meeting at which said apology is offered shall be permitted or required to testify in any such judicial or administrative proceeding, except proceedings held by the boards of registration in medicine, social work or psychology or by the department of public health pursuant to chapter 111C, as to the proceedings of such committee or as to any findings, recommendations, evaluations, opinions, deliberations or other actions of such committee or any members thereof.

SECTION 3.  Section 8I of chapter 26 of the general laws, as appearing in the 2004 Official Edition, is hereby amended, by inserting after the second paragraph, the following additional paragraph:-

The commissioner is hereby authorized to make and collect an additional assessment against medical malpractice insurers licensed, admitted, authorized or approved by the commissioner to pay for the expenses of health apology pilot program. Said assessment shall be made at a rate sufficient to produce two hundred and fifty thousand dollars annually for the six years following the effective date of this act provided, however, that if the commissioner shall fail to expend for the costs and expenses of said pilot program in any fiscal year the total amount of two hundred and fifty thousand dollars for the purposes set forth in this section, any amount unexpended in such fiscal year shall be credited against the assessment to be made in the following year, and the assessment in the following year shall be reduced by such unexpended amount. The assessment shall be allocated on a fair and reasonable basis among all medical malpractice insurers licensed, admitted, authorized or approved by the commissioner. The funds produced by said assessments shall be expended by the division, in addition to any other funds which may be appropriated, to assist in defraying the expenses of said health apology pilot program, and may be used to compensate consultants retained by said bureau. A medical malpractice insurer licensed, admitted, authorized or approved by the commissioner shall pay the amount so assessed against it within thirty days after the date of the notice of assessment from the commissioner. For the purposes of this section, the term medical malpractice insurer shall mean a medical malpractice insurer as defined in section one hundred and ninety-three U of chapter one hundred and seventy-five.

SECTION 4.  Section 8I of chapter 26 of the general laws, as appearing in the 2004 Official Edition, is hereby amended, by inserting at the end of the first paragraph, the following:-

     The Bureau is authorized and directed to evaluate and report on the success of the health apology pilot program allowing medical professionals and health care facilities to apologize for errors to determine the success of the program in reducing medical malpractice claims and in compensating victims of medical errors for their injury or loss.  The bureau will submit annual reports beginning with the first full year following the effective date of this act and a final report after the fifth year following the effective date of this act with recommendations regarding the future of the program to the joint committee on health care financing, the joint committee on the judiciary, and the house and senate committees on ways and means.

SECTION 5.  There is hereby established a Health Apology Program Pilot Project Advisory Committee to advise the Office of Patient Protection relative to the implementation and evaluation of the project.  Said advisory committee shall consist of nine members who shall be: the commissioner of the division of insurance or his designee; the commissioner of health care finance and policy or his designee; the executive director of the board of registration in medicine or his designee; the commissioner of public health or his designee; a representative of the Massachusetts Medical Society, a representative of the Massachusetts Hospital Association, two representatives of the Massachusetts Association of Trial Attorneys, and one representative of a patient advocacy organization.  The committee shall elect a chairman and such other officers as may be needed.

SECTION 6. This act shall take effect upon passage and shall remain in effect until the sixth full year following the effective date of this act.