Posted by Bill Sandweg on 03 December 2018.
It seems the news has been full of stories involving Non-Disclosure Agreements, often called NDA’s. Our President has one with an adult film actress, movie producers have them with actors and actresses, the soccer star Ronaldo has one with an accuser. All of these agreements share a common feature: they involve a payment by someone accused of wrongdoing in return in part for an agreement by the person being paid not to discuss the events or the fact of payment. So what do these NDA’s have to do with medical malpractice? The answer is that, just like the people mentioned above, doctors and hospitals want their payments to malpractice victims to be kept quiet too.
Non-Disclosure Agreements are not good for medicine or for patients. They are not good for medicine because when mistakes are kept secret, no one can learn from them and doctors and nurses are doomed to repeat them over and over. They are not good for patients because when you are choosing a doctor or hospital, you ought to be able to know if they have been accused of malpractice and whether there was a basis for the allegation.
When doctors and hospitals settle malpractice cases, they always insist on a Non-Disclosure provision in the Settlement Agreement. Sometimes the Non-Disclosure provision is narrow and only prohibits disclosing the fact of payment and the amount. Other times the provision is broader and precludes the malpractice victim from discussing the injury or the way in which the doctor or hospital caused it. Either way the injured patient is often in no position to refuse to agree to silence. He or she has been injured and wants to receive the money the doctor or hospital is willing to pay for the injury. The only way to collect without agreeing to confidentiality is to go to trial and win. That means more delay, more expense and a risk of losing, even when the doctor or hospital was clearly at fault.
On rare occasions, the judge in charge of a filed case will ask about the Non-Disclosure provision and will insist that it be removed from the Settlement Agreement on the grounds that it is contrary to the public policy of the state that settlements of court cases be open and transparent. Most judges never ask about the terms of settlement and, even when they do, do not want to insist on a change which might torpedo the settlement.
As in almost all areas of medical malpractice, secrecy is the rule and transparency the extremely rare exception. Doctors and hospitals rarely disclose their mistakes either to patients, to the Medical Board or to the public at large. That they would disclose them when settling a case and actually paying something for a mistake is definitely expecting too much. There isn’t a catchy Latin phrase for “Let the patient beware,” so I will leave you with the best substitute: Caveat emptor.