CARe stands for Communication, Apology, and Resolution. It is a program that provides an alternative process prior to litigation. Built upon a culture of safety that relies on solid root cause analysis, it includes full disclosure and explanation, apology for avoidable injuries, and timely and fair injury compensation when appropriate. Visit our About section for background on the CARe approach in Massachusetts and on MACRMI.
What is CARe?
What are the advantages of CARe?
The increased transparency that comes hand in hand with CARe leads to improved patient safety as well as an improved rapport between providers and patients. Giving the patient as much information as possible, in a timely manner, helps patients and families to feel more in control and supported and to heal from the experience and move beyond it. (Visit the About CARe page for details.) Click here to download "Guilty, Afraid and Alone--Struggling with Medical Error," an article in the New England Journal of Medicine on how patients, families and clinicians can move beyond feelings of guilt, fear and isolation.
What is evidence that it works?
When using an approach such as CARe, there is clear evidence of reduced malpractice claims, decreased costs, and time to resolution. For insight into the experience at the University of Michigan Health Systems, click here to download "Liabilty Claims and Costs Before and After Implementation of a Medical Error Disclosure Program in the Annals of Internal Medicine”, August 2010.
The JAMA article “The Medical Liability Climate and Prospects for Reform” reviews national trends in frequency and costs of medical liability claims and discusses the advantages of CARe-type programs. Click here to read it.
What current laws support the CARe approach?
In August of 2012, the Governor signed Chapter 224 Payment Reform that includes significant reforms to the medical liability system. An agreement on language in the bill among the Massachusetts Bar Association (MBA), Massachusetts Academy for Trial Attorneys (MATA), and Massachusetts Medical Society (MMS) made the changes that facilitate the adoption of CARe-type models possible. This includes the establishment of a 182-day waiting period to permit the disclosure, apology and offer process. It provides strong apology protections, sharing of pertinent medical records, and expectations of full disclosure. Full text of the key provisions of the legislation is available here.
What is my role as an attorney representing a patient in the CARe process?
Patients going through the CARe process are strongly encouraged to be represented by a lawyer, especially if there is discussion of financial payment. The CARe approach is based on honesty and transparency, and your role is assisting the patient in processing the information that is shared by the health care providers and insurers, and ensuring that individual needs and interests are considered and addressed. If compensation is warranted, you play an important role in helping the patient receive compensation that is adequate and fair, and to understand the settlement terms.
Resolution is a comprehensive process that goes beyond financial compensation. Patients frequently experience emotional trauma after an adverse event, and providing them with support and resources can help them move forward.
What should I expect in a CARe meeting?
Health care organizations implementing CARe commit to open and honest communication with patients, and evidence shows that being honest about what occurred has positive implications for patient relationships, emotional well-being, and provides fair compensation in a timely manner without the cost of traditional litigation. What health care organizations say to the patient during CARe meetings should be the truth, and the information shared should be through open and honest communication. The benefit of CARe is that all legal and medical arguments and concerns from all parties will be aired together in a collaborative environment so that the patient can receive an apology, appropriate compensation in a timely manner, and efforts are made to improve patient safety to prevent recurrences.
Does participating in the CARe process deny patients the right to bring legal action?
No, a patient does not need to sign away the right to sue in order to participate in the process. If, however, the patient accepts an offer at the end of the process, they must forego litigation as they will have received compensation for the injury.
Which parts of CARe will be discoverable in a court proceeding?
Patients are entitled to know the facts of their health care. Caregivers are encouraged to be empathetic and honest about the clinical details of a patient’s care, but should be careful to distinguish facts from speculation or premature judgments about the reasonableness of anyone’s care. Speculation and premature judgments can often be counterproductive and can even be harmful to patients and caregivers alike regardless of later admissibility determinations. The goal, of course, is to be honest and forthcoming, so admissibility may not play such a crucial role as it once did in claims or suits.
In Massachusetts, any statement of apology, regret, mistake or error is not admissible in court proceedings arising from the mistake or error unless a contradictory or inconsistent statement is made under oath. We recommend that statements of regret are used until all the facts are known about the event. The law is evolving and presently, it is not clear whether statements or explanations given during a CARe discussion will be later deemed admissible or will be seen to fall within the protected “settlement discussion” category.
How are attorneys compensated in the CARe process?
The CARe approach is less costly than litigation because the process requires less time and work toward a resolution, therefore the statutory contingent fee structure may not be appropriate. Ideally, your objective is to evaluate an already existing offer from the hospital and insurer, not to engage in the same level of extensive and expensive discovery and expert review associated with traditional litigation and trial. Therefore, having a flexible and fair billing arrangement such as hourly pay or a reduced contingent fee should be considered when representing patients.