Legislative News

Issue September 2012 By Lee Ann Constantine and Jennifer Rosinski

Gov. Deval Patrick signs landmark health care and "workers' right to know" bills

The dog days of summer brought along an active bill signing period. Gov. Deval  L. Patrick signed two bills that the Massachusetts Bar Association has been closely monitoring and lobbying for.

The health care cost control bill was signed by the governor on recently passed on Aug. 6. The bill contains specific language that facilitates an approach of disclosure, apology and offer (DA&O) to address medical malpractice claims.

An historic and unprecedented partnership between physicians and attorneys in Massachusetts has led to these significant reforms to medical liability system, allowing for improvements to resolving malpractice cases that could greatly benefit patients by reducing some unnecessary and protracted lawsuits while improving patient safety.

Changes include provisions for a six-month, pre-litigation resolution period that affords the time to go through a DA&O process with sharing of all pertinent medical records by the patient, full disclosure by providers, and for statements of apology by providers to be inadmissible in court.

"Fairness is the child of transparency. Too many victims of medical errors are delayed or denied needed compensation due to lack of transparency. The MBA is pleased and honored to have worked with MMS, the governor, and the legislature to create a law that is in the best interests of patients in that it requires full disclosure, and encourages early resolution while also protecting a patient's right to seek legal assistance to ensure fair compensation," said Massachusetts Bar Association Vice President Jeffrey N. Catalano, a partner at Todd & Weld in Boston.

"Hopefully, full disclosure will also nurture learning that will reduce medical errors in Massachusetts that cost too many injuries and deaths each year," Catalano said. "Importantly, this collaborative effort resulted from the fact that both doctors and lawyers appreciate that disclosure of mistakes also allows healing for both the patient and the physician."

During the afternoon of Aug. 6, Patrick signed into law House Bill 4034 -- the "workers' right to know" bill -- which requires employers to provide temporary workers with written notice of key details of their work assignments and important legal protections available to them.

The MBA has been part of working coalition, including MassCOSH and Greater Boston Legal Services, that has advocated forcefully for the passage of the Temp Worker Right to Know bill for the past several years.

The law will end the suffering of temporary workers, who often have limited knowledge of their legal protections and rights available to them. If injured on job sites, temporary workers are sometimes left abandoned at the hospital and may not even know the correct name of their employer. A temporary worker's job location may change before he or she can return after an injury, leaving the burden of medical care and other expenses with the injured worker's family or the commonwealth.

"This critical legislation does the right thing; ensures that the state's more than 1,000 temporary workers are protected from exploitation and hazardous working conditions. When workers are abused, the results range from inadequate pay to broken bones, amputated limbs, brain injury and even death," said Douglas K. Sheff, MBA treasurer and chair of the association's Workplace Safety Task Force.

"For over a year we have been fighting for these rights for working families. This victory underscores the constant concern on the part of attorneys at the Massachusetts Bar Association for fairness throughout our communities and for workers throughout the commonwealth," Sheff said.

Also on Aug. 6, Patrick signed into law House Bill 4332 relative to student access to educational services and exclusions from school. The bill requires school districts to allow students who are excluded for more than 10 consecutive school days to continue making academic progress by using alternative educational services, including tutoring, alternative placement, Saturday school and online or distance learning. The bill also requires school districts to track and report data about all suspensions and expulsions for use in identifying trends in the use of school exclusions. The MBA support of this bill emanated from the Juvenile & Child Welfare Law Section Council.