Posted by Bill Sandweg on 08 February 2016.
Last week I wrote about the finding that a few doctors are responsible for a large percentage of medical malpractice claims. Today I want to write about a facet of malpractice settlements which allows this problem to continue. I have negotiated well over 500 malpractice settlements in my legal career. Some were negotiated on behalf of doctors or hospitals during the portion of my career when I was representing defendants. Many more were negotiated over the last 20 years when I have been representing patients and their families. There has never been a malpractice settlement with which I have been involved that did not contain a confidentiality clause.
The confidentiality clauses came in different flavors. Some made confidential only the fact of the settlement and the amount. Some sought to prevent even the facts about the patient’s injuries from being made public. In all cases, however, the purpose of the clause was to keep confidential certain information about the settlement. The confidentiality prevents the public from having valuable information about doctors and hospitals; information which should be a valuable tool in assisting the public when it comes to selecting a doctor or a hospital.
There is no public benefit to keeping settlement information confidential. While it helps the insurance company if other lawyers representing patients do not know what the insurance company was willing to pay to settle a similar case, there is no value to the public; in fact, quite the contrary. It also benefits the doctor or the hospital not to have a story in the newspaper about the “big” settlement they made and the facts giving rise to that settlement. Again, however, there is no value to the public.
It has long been recognized by everyone who studies the issue that fixing medical mistakes requires transparency. If mistakes are never recognized, if mistakes are never admitted, if mistakes are never discussed, there is little hope for preventing them from occurring over and over again. Lawyers representing patients have no real power to prevent doctors, hospitals and their insurers from inserting these confidentiality clauses into settlement agreements. While it would be best for the public if they were not present, the lawyer owes his or her duty to the client and it is in the best interest of the client to get the case settled, and that means going along with the confidentiality provision which the defendants insist must be part of the agreement.
If you want transparency, you will have to talk to your state legislator and ask that bills be introduced to make these confidentiality provisions void and unenforceable. Without a state law to that effect, they will never disappear.