Joint Committee on the Judiciary
The Massachusetts Health & Hospital Association (MHA), on behalf of its member hospitals and health systems, physician organizations and allied health care providers, appreciates this opportunity to offer its comments with regards to legislation addressing medical malpractice, protections for healthcare professionals providing certain emergency care, and other proposals regarding mental health and substance use disorder treatment.
MHA supports HB1412, “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. HB1412 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 the provisions in HB1412 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.
MHA is also supportive of HB3377. This legislation provides important and timely liability coverage for those providers and others who volunteer to assist during a state-declared disaster or pandemic situation. The goal of the bill is to ensure that the healthcare community is best able to respond quickly with all available resources to effectively assist and treat patients during a government-declared disaster or pandemic.
HB3377 ensures protections for healthcare professionals that are providing services in emergency situations and where they may be asked to provide services outside of their scope of practice – for example, a primary care physician assisting in an emergency department or providing specialty services. This legislation certifies that no healthcare provider shall be liable in a suit for damages or administrative sanctions as a result of good faith acts or omissions while engaged in the performance of duties in rendering emergency care, treatment, advice, or assistance during a declared statewide or regional public health emergency, or while acting as a result of a pandemic or a disaster.
Following the Boston Marathon bombing, the tornados in Western Massachusetts, and the blizzards and record snowfall of 2014, there was a great need to use all available providers to care for patients outside their normal scope of practice. HB3377 is a critical component as the state continues to look for ways to improve capacity and preparation in anticipation of public health emergencies. While there are federal, state, and local statutory and constitutional limits on civil liability for normal volunteer practices – such as volunteer protection statutes or governmental immunity provisions –these protections are afforded only to government employees or agents. Current “Good Samaritan” statutes also do not provide sufficient protections to medical professionals who are providing services during the course of their normal work. The specific liability protections called for by HB3377 are needed to ensure the ongoing viability and strength of the healthcare system in such emergency situations.
There is no doubt that a pandemic or disaster event will require collaborative and detailed planning efforts, including the recruitment and training of volunteer healthcare professionals, to ensure the goal of providing the best possible care to the greatest number of people as quickly as possible. To be more fully prepared for such instances, we need to be able to identify and eliminate the legal and administrative barriers that could impede the deployment of these professionals. HB3377 will provide the necessary liability protections for providers so that the commonwealth’s statewide preparedness planning and volunteer recruitment can be most effective. We respectfully urge the committee to issue this bill a favorable report.
HB1379 would require physicians to report if they have examined or treated a person suspected of dying from injuries resulting from opioid, illegal or illicit drug overdose to the state police and the police in the town in which the physician resides. MHA is committed to addressing the opioid overdose epidemic with all stakeholders who are at the table, including law enforcement. Rather than requiring legislative action, MHA believes that this information could be provided to law enforcement on a de-identified patient basis through the existing data on opioid overdoses that is reported to the Department of Public Health.
MHA would additionally like to express its opposition to HB1382. This bill would amend a state medical malpractice statute to permit minors under the age of 18 to commence a medical malpractice action within three years of the discovery of the act or omission which is the alleged cause of the injury, but not later than seven years after the injured party’s twenty-first birthday, whichever is sooner. MHA is not aware of any evidence that would necessitate a change to this statute.
With regards to SB1035 that addresses involuntary inpatient treatment for substance use disorders, MHA was a member of the Section 35 commission established by section 104 of Chapter 208 of the Acts of 2018. MHA supported the commission’s recommendations and looks forward to their implementation. We would be happy to meet with legislators and staff to further discuss the recommendations.
MHA is concerned with the provisions of HB1553 which makes a number of changes to the law surrounding mental health, civil commitments and the rights of patients. We oppose the bill as it would make it more difficult for individuals at risk of harming themselves and others to receive necessary treatment. Limitations on the amount of treatment as well as delays in access to treatment would significantly harm patient care.
Thank you for the opportunity to offer testimony on this matter. If you have any questions regarding this testimony, or require further information, please contact Michael Sroczynski, MHA's Senior Vice President of Government Advocacy at (781) 262-6055 or msroczynski@mhalink.org