Too often victims of medical malpractice are required by negligent medical providers and their medical malpractice insurance companies to agree to sign confidentiality agreements (a/k/a non-disclosure agreements, or NDAs) in which they agree to keep silent and not discuss with anyone their underlying medical malpractice claims or the amounts paid to them to settle their medical malpractice cases.
Why are confidentiality agreements in settled medical malpractice cases bad for everyone (except for the negligent medical providers)? Because agreeing to keep medical malpractice settlements out of public view (i.e., secret) prevents current and future patients who rely on their medical providers to provide competent medical care from having this important information that may influence their decision-making with regard to medical treaters and medical treatment. While past poor performance may not be predictive of future poor performance, the information regarding past medical malpractice claims against a medical provider may be dispositive for many people choosing their health care providers.
Secret nondisclosure agreements also affect patient safety by allowing bad doctors and other dangerous medical providers to continue to harm patients because their incompetency is hidden from their present and future patients and employers.
An original investigation published in JAMA Internal Medicine in 2015 entitled “Use of Nondisclosure Agreements in Medical Malpractice Settlements by a Large Academic Health Care System” that was designed to “determine the frequency of nondisclosure agreements in medical malpractice settlements and the extent to which the restrictions in these agreements seem incompatible with good patient care,” concluded: “Honesty and transparency are essential aspects of health care, including in physicians’ and hospitals’ responses to medical error. Biases and habits associated with medical malpractice litigation, however, may work at cross-purposes with compassion in clinical care and with efforts to improve patient safety … An academic health system with a declared commitment to patient safety and transparency used nondisclosure clauses in most malpractice settlement agreements but with little standardization or consistency. The scope of nondisclosure was often broader than seemed needed to protect physicians and hospitals from disparagement by the plaintiff or to avoid publicizing settlement amounts that might attract other claimants. Some agreements prohibited reporting to regulatory agencies, a practice that the health system changed in response to our findings.”
Is It Ethical To Require Non-Disclosure Of Public Information?
A D.C. Bar Ethics Opinion states that it is unethical for an attorney to agree to keep confidential certain public information about a medical malpractice case: “A settlement agreement may not compel counsel to keep confidential and not further disclose in promotional materials or on law firm websites public information about the case, such as the name of the opponent, the allegations set forth in the complaint on file, or the fact that the case has settled. Such conditions have the purpose and effect of preventing counsel from informing potential clients of their experience and expertise, thereby making it difficult for future clients to identify well-qualified counsel and employ them to bring similar cases. By diminishing the opportunity for the lawyer to represent future clients in similar matters, such conditions violates D.C. Rule 5.6(b), which prohibits lawyers from offering or making a settlement agreement that restricts a lawyer’s right to practice. A settlement agreement may provide that the terms of the settlement and other non-public information may be kept confidential, but it may not require that public information be confidential.” (emphasis added)
The D.C. rule and ethics opinion is consistent with the ABA’s Model Rules of Professional Conduct that provides in Rule 5.6(b): “A lawyer shall not participate in offering or making: … (b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.”
If you or a family member may be the victim of medical malpractice committed by a doctor, a hospital, or other medical provider in the United States, you should promptly consult with a local medical malpractice lawyer in your state who may investigate your medical malpractice claim for you and represent you or your family member in a medical malpractice case, if appropriate.
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