The Commission, whose Public Policy Initiative responsible for this report consisted of physicians and attorneys, noted that multiple reasons exist for the lack of progress and said this: “No one can deny that the vulnerabilities for practitioners and provider organizations created by the medical liability system – fear of litigation, loss of liability coverage, and professional reprisals among them – are driving underground information vital for learning and solution development.”
From the perspective of patient safety, our current way of addressing medical liability clearly hinders improvement. But as important as patient safety is – and it’s a top priority of medical professionals – more reasons for liability reform are readily apparent.
The average malpractice suit can last five to seven years, driving up costs and disrupting lives on both sides. A small percentage of negligent injuries – two percent according to The Harvard Medical Practice Study – result in claims, and few injured patients receive compensation.
Further, the tort system, from the physician perspective, encourages a culture of secrecy, fosters an attitude of “deny and defend,” and inspires fear leading to unnecessary tests and procedures --defensive medicine that cost billions of dollars. A Massachusetts Medical Society study of physicians in 2008 conservatively estimated that unnecessary tests and procedures to protect against potential lawsuits amounted to $1.4 billion in costs for the Commonwealth. National studies have estimated defensive medicine to be in excess of $200 billion per year.
We are long overdue for medical liability reform, and it’s precisely this change that our new initiative of Disclosure, Apology and Offer hopes to bring about in Massachusetts. 
Proven successful in other venues around the country, DA&O is a common-sense approach to medical liability: it provides for full disclosure of how and why an error occurred, and for those errors judged avoidable, what steps will be taken to prevent it from happening again, a sincere apology, and appropriate offer of compensation. It offers greater transparency and honesty, faster resolution of cases, less defensive medicine, enhanced reporting of medical errors, and improved patient safety. We are quick to assert that patients’ rights must be assured; those harmed by unacceptable standards of care must have redress and legal representation. The DA&O approach does not and is not intended to preclude a patient from bringing a lawsuit.
An alliance of health care organizations across Massachusetts in April released a Roadmap to Reform that outlines the DA&O approach to medical liability. The Roadmap, containing interviews and viewpoints from 27 representatives of key constituencies with a stake in medical liability, is the product of two years of study, resulting from a 2010 grant to our organizations from the President’s Patient Safety and Medical Liability Initiative. Our research indicates that stakeholders see the need for change.
It’s now beginning to happen. Seven hospitals - three from Beth Israel Deaconess Medical Center, three from Baystate Health in Springfield, and Massachusetts General Hospital – will pilot DA&O programs over the new few years to measure their effectiveness.
The Joint Commission’s report also declared that “the axiom ‘you learn from your mistakes’ is too little honored in health care,” and that “an unintended consequence of the tort system is that it suppresses the information necessary to build safer systems of health care delivery.”
Seven years after The Joint Commission’s report and 12 years after the Institute of Medicine’s historic narrative on medical errors, To Err is Human, it’s time to recognize that medical liability and patient safety are inextricably linked. It’s time to learn from our mistakes, to build safer systems of care, in a transparent process that protects the rights of patients who have been harmed and treats them in an open and honest manner. Disclosure, Apology, and Offer gives us the opportunity to accomplish those goals.   

Alan Woodward, M.D. is a past president of the Massachusetts Medical Society and Chair of its Committee on Professional Liability; Kenneth Sands, M.D., M.P.H., is Senior Vice President for Health Care Quality at Beth Israel Deaconess Medical Center in Boston, one of the participating hospital systems in the demonstration project. The two physicians are leading the medical liability reform of Disclosure, Apology, and Offer in Massachusetts.