SB829, HB791, HB918, SB913, SB904, HB813, SB911 Torts, Civil Actions

Joint Committee on the Judiciary

The Massachusetts Health & Hospital Association (MHA), on behalf of our member hospitals, health systems, physician organizations and allied healthcare providers, appreciates the opportunity to submit comments regarding the bills highlighted below.

MHA supports SB829, which seeks to provide reasonable legal protections for first responders (including EMTs, police officers, firefighters) and others should they need to provide emergency care and treatment to a person who may be suffering from an opioid overdose and in need of Naloxone for recovery. As the state continues to expand it efforts aimed at preventing and addressing substance use disorders, it has endorsed the use of Naloxone by first responders, healthcare providers, boards of health, public safety officers, and others in order to treat patients suffering from opioid overdoses. SB829 ensures that necessary and appropriate legal protections are available to these individuals to ensure that they can render assistance to individuals suffering from overdoses without fear of legal repercussions. We urge the committee to give this legislation a favorable report at its earliest convenience.

MHA supports HB791, “An Act Relative to Patient Care Access.” This bill proposes important clarifications and updates to the commonwealth's medical malpractice system. Inefficiencies in the current system have led to increasing costs for professional liability insurance. HB791 would provide for a level of consistency in the system while maintaining a patient's ability to bring suit on specific cases. Specifically, MHA supports those provisions in HB791 that: 1) promote the development of stable, clear standards for expert witnesses by requiring that an expert witness in an action against a physician be board certified in the same specialty as the defendant physician; 2) create a more equitable interest rate structure for awards and settlements by indexing the pre-judgment interest rate to Treasury Bill rates, replacing the current arbitrary rate that is not based on any standard financial methodology; and 3) ensure that liability is more fairly distributed among all parties, replacing the current system of joint and several liability with the requirement that a defendant be liable only for the amount of damages for which they were responsible. This legislation advances important distinctions that would make the malpractice system more fair and reasonable for all parties involved. Physician shortages and continually increasing medical malpractice premiums are strong indicators that the time is ripe for these important changes.

HB918 would bring important equity to the application of penalties related to violations of the state’s wage and hour laws. Under recently enacted current law, all violations of Massachusetts wage and hour statutes are subjected to mandatory treble damage awards with no available defense. This means that any and all alleged violations, including inadvertent violations or omissions, are considered to be outrageous in nature and the result of an employer possessing evil motive or reckless indifference to the well-being of employees. This standard unfairly and overly penalizes employers for violations committed without intent. HB918 would correct this inequity by limiting the current extra-punitive application of treble damages to those instances of “willful” violations of the law. This important bill recognizes that errors and mistakes can be made, and in such unintentional instances employers should not be subject to onerous punishment.

MHA strongly opposes SB913 and SB904, which both impose an inappropriate and limiting definition of a charitable organization for purposes of charitable immunity protections. Under Section 222 of Chapter 224 of the Acts of 2012, the legislature amended the charitable immunity cap to increase the amount that apply to medical malpractice awards, as compared to any other suit that is filed against a charitable organization. Specifically, the legislature adopted a new $100,000 cap for medical malpractice claims -- specifically targeting healthcare providers. This provision of Chapter 224 was developed after careful consideration and agreement by healthcare providers, malpractice attorneys, legislators, and other public officials. SB913 and SB904 would undo these efforts by solely limiting any charitable immunity to small organizations whose operating revenues are entirely derived from donations. Both SB913 and SB904 fail to take into any consideration that many large charitable organizations, such as hospitals that derive a majority of their revenue from public programs like Medicare and Medicaid, must remain financially stable to continue providing essential healthcare services and a broad range of important community benefits to their communities. Removing the current charitable immunity protections introduced under Chapter 224 threatens hospital charitable assets and the ability to provide care in communities. Hospitals are employment drivers of the commonwealth and provide 24/7 emergency level services, often at an operating loss. They ensure that the care they provide meets the highest standards which are measured through numerous federal, state, and national accreditation forums. SB913 and SB904 proposes treating charitable organizations differently based on the size of the organization and their operating revenue, rather than on standards that were developed based on broad support by all stakeholders.

MHA is opposed to HB813, which seeks to entirely eliminate the liability cap for any charitable organization. During a time of continued cuts to non-profit organizations such as hospitals that provide critical and timely care to a large population of Medicare and Medicaid patients, it is important that there be public protections in place to help preserve continued access to emergency and other urgent care services in the commonwealth. Many hospitals are operating under slim margins. Removing this public protection for such organizations would affect access to communitybased services and programs, as facilities would have to allocate funding to increased liability coverage.

MHA is opposed to SB911, which seeks to limit compensation for certain employees within a nonprofit organization or public charity. While the hospital community does not compensate board members for their services, we are very concerned with any effort to limit salaries for staff that are managing a complex and sophisticated organization. Hospital boards, comprised of community leaders and local experts, consistently follow a thoughtful and deliberate process in determining compensation, based on federal and state rules and national standards. In addition, an independent panel drawn from a hospital’s board of trustees is typically charged with evaluating and developing compensation, based on benchmark data from similar organizations, reports from independent consultants, and reviews of national- and state-level financial filings. Non-profit organizations such as hospitals are large, complex organizations that employ thousands of individuals. To attract and retain qualified leadership, hospital boards must have the unfettered ability to set compensation levels that are competitive to similarly-sized complex organizations. Hospital boards need to compete to keep talented leaders with the skills required to deal with community concerns, government regulations, and complicated payment relationships with doctors. Hospital CEOs face unique challenges, and their compensation reflects the unique skill set, education, and experience that they will need to meet the demands of the position. Many hospital CEOs also manage an array of services beyond the hospital, including physician groups, home health organizations, and primary care clinics. Imposing arbitrary caps such as those suggested by SB911 will prevent non-profit organizations like hospitals from recruiting, retaining and appropriately rewarding the most talented and able leaders.

Thank you for your consideration of these important matters. If you any questions or need further information, please do not hesitate to contact Michael Sroczynski, MHA’s Vice President of Government Advocacy at (781) 262-6055 or msroczynski@mhalink.org.