CARe: an alternative to medical malpractice litigation

Issue March 2015 By Jeffrey Catalano and Lisa Buchsbaum

In 2012, the Massachusetts Alliance for Communication and Resolution following Medical Injury (MACRMI) was formed from a coalition of partners - teaching hospitals and their insurers, patient safety and advocacy groups, and statewide organizations - dedicated to improving the medical liability system. An unprecedented partnership between the Massachusetts Bar Association (MBA), Massachusetts Academy of Trial Attorneys (MATA) and Massachusetts Medical Society (MMS) led to significant reforms allowing MACRMI to embark on its mission to implement and study a Communication, Apology and Resolution (CARe) approach to adverse events in health care facilities.

The CARe approach, modeled after programs at institutions like the University of Michigan Health System and Stanford Hospital and Clinics, promotes early resolution in cases of avoidable medical injury. Under this model, when unanticipated adverse outcomes occur, patients and their families are provided full disclosure of what happened, what it means for the patient medically, what will be done to prevent the error from happening again, thereby improving patient safety and, where appropriate, a sincere apology and adequate and fair compensation. In cases where financial compensation is deemed appropriate, patients are encouraged to consult an attorney to advise them of their rights and to evaluate the fairness of any offer.

During the last three years, MACRMI members have been working tirelessly to develop sample policies and procedures to guide and support institutions implementing the CARe program. Most recently, the MBA and MACRMI partnered to develop best practices for attorneys representing patients and health care providers in resolution of medical injury using the CARe approach. These tools and additional resources for patients, clinicians, administrators and their attorneys are free and accessible through the MACRMI website at

In January 2015, the MBA and MACRMI co-sponsored an interactive forum at the MBA to educate attorneys on MACRMI's mission and the CARe approach. The forum provided an opportunity for attorneys to get information about how the CARe program works in Massachusetts, hear from attorneys that have participated in the process, understand the benefits of the program for attorneys and their clients, and have their questions answered by a panel of experts on the topic. Attorneys from across the state, including many prominent plaintiffs' medical malpractice attorneys, attended the event, and it proved to be a resounding success.

The evening began with Dr. Alan Woodward, former MMS president, presenting the background and accomplishments of MACRMI. Dr. Kenneth Sands, chief quality officer at Beth Israel Deaconess Medical Center (BIDMC), provided a history of the program and the current results of its implementation at the pilot sites in Massachusetts. The six pilots include BIDMC, Beth Israel Deaconess Milton, Beth Israel Deaconess Needham, Baystate Medical Center, Baystate Mary Lane, and Baystate Franklin. Dr. Sands revealed many facts and data with regard to the impact of the CARe program on resolving cases early and the progress that has yet to be made. The transparency of information was impressive and consistent with a key tenet of the CARe program - transparent communication.

A panel of both plaintiff and defense attorneys followed. It was led by a successful plaintiff's attorney from Michigan, George Googasian, who spoke of the benefits of a well-known Disclosure, Apology and Offer (DA&O) program in that state. He shared examples of recent cases resolved using the CARe-like approach and convincingly dispelled notions that such programs are a "wolf in sheep's clothing," or an attempt to short-change patients by offering them money at the early stages of their injury when they are most vulnerable. With 14 years of experience working on cases using the CARe-like approach, Googasian believes that it's a giant step forward in the legal and medical communities. Jeffrey Catalano, a plaintiffs' attorney and MBA representative on MACRMI's committee, emphasized the necessity of such programs to improve patient safety efforts. In particular, how CARe encourages healthcare providers to disclose errors and learn from their medical mistakes. Defense attorney Kevin Giordano discussed the importance of having the defense bar buy in to this program. He expressed that his support for this program comes from his belief in a good healthcare system, and promoting a trusting and good patient-provider relationship. He encouraged plaintiffs' attorneys to also be open-minded to resolving these cases collaboratively, fairly and expeditiously because it is the right thing to do.

Patient advocate and Executive Director of Medically Induced Trauma Support Services (MITSS), Linda Kenney, spoke of the importance of appreciating both the health care provider's and patient's emotions when a medical error occurs and the need for early healing for both parties, which the CARe program facilitates.

All panelists repeatedly emphasized that the participation of the attorney for the patient is highly encouraged in order to ensure that the process works fairly. In particular, the attorney's role is to make sure that the settlement is sufficient to take care of the patient's comprehensive past, present and future needs. The attorney is also there to ensure that the terms of the settlement agreement are fair and to assist with exploring and negotiating any medical liens that may subtract from the settlement offer.

The program concluded with a fruitful question and answer session facilitated by plaintiff's attorney Anthony Agudelo, the forum's moderator. The panel of experts thoughtfully answered a number of questions from the audience, such as how the process affects the National Practitioner Data Bank reporting requirements and what criteria is used to qualify attorneys to represent patients using the CARe approach.

The forum was universally well received, as evidenced by written and verbal comments following the presentations. Everyone was very interested in the program and invested in future efforts to make it work. As the first phase of an effort to solicit the collaboration of all attorneys, it was a tremendous success. It is encouraging to learn that attorneys, healthcare providers and insurers can find a common ground when it comes to trying to prevent avoidable medical errors and to providing assistance to those who are injured. Although the road ahead is still long, it promises to be well-paved.
The seminar is available to view through MBA On Demand here.

Jeffrey N. Catalano is a partner at Todd & Weld LLP in Boston, where he represents victims of catastrophic injuries in the areas of medical negligence, product liability, auto accident, class action and other personal injury cases. Catalano currently serves as treasurer of the Massachusetts Bar Association.

Lisa Buchsbaum is a project manager at Beth Israel Deaconess Medical Center in the Center for Healthcare Delivery Science. Buchsbaum manages the Communication, Apology and Resolution approach to adverse events at BIDMC. She also manages the Massachusetts Alliance for Communication and Resolution following Medical Injury, which promotes the use of the CARe process throughout the commonwealth.