Interviews with Disclosure & Apology Leaders: Jeffrey Catalano, Esq.

Happy New Year!  We are delighted to kick off 2021 with another edition of “Interviews with Disclosure & Apology Leaders.”   Today, we are interviewing Jeffrey Catalano, Esq.

Jeff is a partner in Todd & Weld LLP, a Boston personal injury law firm.  He is very active in the patient safety movement and is a strong advocate for disclosure and apology.  Jeff serves on the boards of several prominent patient safety groups, including the National Patient Safety Foundation, MACRMI, and the Collaborative for Accountability and Improvement.  

Back in October (2020), we interviewed Kyle Sweet, Esq, who, like Jeff, is a medical malpractice attorney and also a member of the Collaborative.  Based in Oklahoma, Kyle defends doctors and healthcare organizations and he provided the defense perspective on disclosure and the Collaborative’s work, including their attorney educational/certification program entitled the “CRP Attorney Alliance.”  Today, Jeff is providing the personal injury perspective on disclosure & apology, the Collaborative, and other pertinent issues. 

SW: Thanks for doing this interview with us.  We appreciate you providing the personal injury viewpoint with our readers.  We’ll start this interview the same way we did with Kyle Sweet by asking your perspective on how the pandemic impacts medical malpractice litigation, patient safety, etc. 

JC: Thank you for the opportunity for this interview. The pandemic has certainly slowed the process of litigation, even with good technology.  Moreover, doctors and nurses have traditionally been held in high regard by juries and their heroic response to COVID will certainly reinforce these feelings, so, from the plaintiff’s perspective we will have to work harder to ensure jurors keep an open mind about the facts of any given case.  However, I am not overly concerned about bias because most jurors knew prior to the pandemic that medical errors are a major problem and unfortunately will continue to be afterwards. 

SW:  How did you as a personal injury lawyer become an advocate for disclosure and apology and a leader in the patient safety movement?  What drew you to this work?

JC: Like many lawyers, I went to law school wanting to help people and change the world for the better.  I initially started in medical malpractice defense work, but then found my heart was in plaintiff’s work. My eyes were opened to the benefits of disclosure and apology with the case of a deceased 15-year old girl.  This young girl died from a misdiagnosed shunt malfunction and the parents and I fought for five years to get answers and accountability.  We got to mediation and presented our case. The doctor came to mediation and asked to speak.  He looked the grieving parents in the eyes, apologized, and discussed the mistakes he made that led to the death of their daughter.  Moreover, the doctor said he missed their daughter too as he had treated her since she was an infant.  Finally, the physician asked if he could hug the parents, and they agreed.  It was a truly heart-warming moment.  The mother felt such a relief and release because she could stop blaming herself.  I was astonished by the outcome, but I kept asking myself, “Why couldn’t this have happened five years ago shortly after the child died?  Why did the parents and the doctor have to go through five years of bruising and expensive litigation to get to an apology and reconciliation?  Isn’t there a better way?” 

This case encouraged me to become active in patient safety and disclosure & apology both here in Massachusetts and with national groups like the Collaborative. 

SW: Attorneys have been – and will continue to be – a stumbling block for disclosure and apology.  With defense attorneys many were literally trained in the opposite way (deny & defend), and, unfortunately, sometimes billable hours can get in the way of ethical advice.  Plaintiff’s attorneys are a mixed bag when it comes to disclosure and apology.  Some like you strongly embrace the concept, while others either give it lip service, don’t think about it, or even believe disclosure is a scam meant to rip off vulnerable consumers.  What is your perspective on disclosure and the PI Bar?

JC: My colleagues in the plaintiff’s bar do have varied opinions about disclosure and apology.  Some think it’s a wolf in sheep’s clothing. Also, I did receive blowback and raised eyebrows from some PI colleagues when I worked with the Massachusetts Medical Society in drafting legislation that allowed for doctors to apologize without having that used against them in court. We definitely need to educate more PI lawyers about the benefits of disclosure and how it actually works.  The Collaborative’s “CRP Attorney Alliance” is working to educate both defense and plaintiff’s lawyers about disclosure, and part of that effort includes an attorney certification program through the Massachusetts Alliance (MACRMI) between health care providers, lawyers, and insurance companies. Lawyers who are certified through this program will not only understand disclosure and apology, but they will also be able to advertise themselves to consumers (be they hospitals and insurers or patients/families) as understanding the benefits of disclosure and apology.

SW: Tell us why plaintiff’s lawyers should embrace disclosure and apology.

JC: There are several reasons. The ultimate goal for any PI attorney is to obtain recovery for clients.  Disclosure typically allows for quicker recovery with less expense and risk for the PI firm. Moreover, with the shorter, more direct recovery process there is less trauma for clients; their lives are not put on hold for three to five years.  The difference maker, however, is that our clients can receive more than a check.  Like the case of the 15-year old girl, patients and families can get answers and accountability while seeing that medicine improved because of their case.  Every potential client that shows up in my office wants to know that doctors and nurses will learn from their case and for no other patient or family to experience their suffering.  This is the gold standard for families. The initial conversation with every patient or family is all about patient safety, not money. 

Now, in some instances, PI attorneys may need to lower their fees. Cases where the provider or insurance company offers a disclosure and apology with early financial compensation represent less investment of time and expenses with less risk, so charging a full 33 to 40 percent in these cases may not be appropriate.  However, the PI attorney is going to get paid much quicker than the typical three to five years of litigation which includes the risk of not getting paid at all.  The business model will need to change for PI firms as disclosure become more prevalent, but, again, disclosure presents a unique opportunity to serve a vulnerable community while continuing to earn a living.  Disclosure & apology is all about why PI lawyers went to law school.  

SW: What about low dollar cases?  A $50K case is not financially feasible for most PI firms to litigate, and hospitals, insurers, and defense attorneys working under traditional deny and defend strategies understand this reality. Yet, that $50K could be the difference between a family staying in their home or not.

JC: I have been able to settle low value cases, after reducing my fee, so that even patients who have not been severely harmed are still able to obtain accountability and fair compensation.

Disclosure will not only change the business model for the cadre of professionals associated with medical malpractice but also the way we approach all cases, including low dollar cases. When disclosure is working properly all stakeholders are operating in not only an ethical fashion but also in an expedited fashion.  Replacing discovery and depositions with honesty and openness can dramatically reduce costs for all sides and make low dollar cases doable.  Moreover, not only do families benefit from the economic recovery in low dollar cases but hospitals and nursing homes also learn from their mistakes with these cases, which could prevent very expensive cases down the road.

SW: How does a family living in St. Louis (like my family) or some other family residing in, say, Nashville, TN find a plaintiff’s lawyer who understands and embraces disclosure? 

JC:  This is a challenging question that is a work in process. It’s tough for not only patients and families, but, as Kyle alluded to in his interview, hospitals, nursing homes, and insurers struggle with this situation too.  Here in Massachusetts, MACRMI maintains a list of plaintiff’s attorneys who embrace disclosure, and this list is readily available to all legal consumers.  Other states are moving in this direction, and the Collaborative’s “CRP Attorney Alliance” will help too.  Absent a list, consumers (be they patients/families or healthcare organizations) need to interview potential attorneys, talk about disclosure with them, and see what they think.  You need to find a compassionate attorney who is not only skilled and successful, but personally invested in your case.

SW: Where have you seen progress with disclosure, and where does work remain?

JC: The conversation has changed dramatically over the last 10 years.  Disclosure and apology used to be taboo, but now it is readily accepted and endorsed by healthcare, risk, and insurance professionals.  Organizations like Sorry Works!. MACRMI, and the Collaborative have been created to advocate and train more people, and we are seeing more cases with apology and good outcomes.  I continue, however, to see too many disconnects between hospitals/doctors and their insurers, who may not arrive at the same decision about whether to disclose the error and settle the case.   Much work remains. 

SW: Thank you for a great interview!

JC:  You are welcome…and Happy New Year to you and all your readers!

Final note: After our interview, Jeff told me how he was raised by two public school teachers who taught him the value of service and the difference between right and wrong.  He shared a story of accidentally breaking a neighbor’s window with a basketball, and his parents made him march across the street, apologize, and offer to pay for the damages. Jeff said this is the way that all med-mal cases need to be handled.  I agreed, but I quipped that many of our colleagues and friends became lost somewhere between that $40 window we all broke as kids and a $400K med-mal case. Jeff laughed, and we both agreed there is much more work to do with disclosure & apology and the patient safety movement.   Hopefully this interview and all the work we do in 2021 will contribute to the needed improvements.

Thanks for reading this interview, and please forward to colleagues and friends. 

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