Perspective: Non-disclosure agreements cause regret

By Charles A. Pilcher MD FACEP
November, 2017

Once again I ask med mal attorneys to consider the purpose, value, even the ethics, of non-disclosure clauses in med mal lawsuits.

Ten years ago (January, 2008) I began writing this newsletter to provide a physician expert’s insight into medical malpractice and to help educate those attorneys with whom I have worked. I plan to continue doing so as long as I have anything relevant to convey.

Throughout my time as a medical expert, I have taken pride in defending the judgment of multiple physicians, helping many injured patients receive compensation for an injury resulting from medical error, prevented many doctors from getting sued, saved many plaintiff attorneys from filing cases they would not win and worked with an amazing group of hard-working legal professionals on both sides.

But what are we doing to improve patient safety? Do we make a difference?

In the past month one could hardly turn on the news without hearing of another claim of sexual harassment involving a public figure. Harvey Weinstein. Bill O’Reilly. Mark Halperin. Even 93 year old, wheelchair-bound President George H. W. Bush. Men behaving badly and getting away with it for far too long. Only now, as the victims are beginning to open up about their experience, does change have a chance. For example, the #MeToo movement has led to disclosures by over 200,000 victims. Awareness of the problem is greater, and that will hopefully result in behavioral change. But change won’t happen if the injured continue to agree to non-disclosure clauses when they sue their abusers (or in our situation, healthcare professionals or institutions who get sued when mistakes are made.)

There’s a common thread in this recent news. In late October anchor Lester Holt covered sexual harassment on “NBC Evening News.” In the segment, Megyn Kelly, formerly of Fox News and herself a subject of unwanted advances by Bill O’Reilly, interviewed Juliet Huddy, another Fox News host and O’Reilly victim. Ms. Huddy earlier had settled her own lawsuit against O’Reilly for a multi-million dollar sum. Ms. Kelly asked her to provide more details of her case, specifically why she hadn’t been more pro-active to reduce the chance that other women would have to endure what she went through. Ms. Huddy explained that she was not at liberty to do so because her settlement included a non-disclosure clause. She then became pensive, her voice softened and she said, “I think people have regrets. I think people have regrets when they sign non-disclosure agreements.”

Hopefully, some of those “people” with regrets are patients injured by medical error. The silence enforced by non-disclosure leads to more medical mistakes – preventable medical mistakes. Only by improving transparency (see earlier “Perspective)”  can we learn. As I’ve said many times in this newsletter, “Our most egregious medical mistakes become lawsuits. Our most egregious lawsuits are settled without a public trial. Our most egregious pre-trial settlements almost always include a non-disclosure clause. We bury our mistakes, and as a result we bury more of our patients.”

This has got to stop.

About 3 years ago I realized that litigation of medical error has changed nothing. We still see missed spinal epidural abscesses. (See January and April 2016 Medical Malpractice Bulletin.) If medicine is safer, it is not because of lawsuits. Physicians learn nothing from lawsuits – so mistakes are repeated. Because those most needing education about medical malpractice are not attorneys but physicians, I began a second newsletter to share the learnings from med mal lawsuits with physicians. I even include learnings from pre-trial settlements with non-disclosure clauses, turning each case into a brief “story.” I disclose neither the names of the parties nor the amount of the settlement, and emphasize the “takeaways.” Reference readings are included for further education. Over 1600 healthcare professionals now receive that publication and feedback is uniformly positive and encouraging.

As you may know, earlier this year I moderated a panel discussion on this non-disclosure clauses at the annual meeting of the American Association of Legal Nurse Consultants. Panelists included a defense attorney, plaintiff attorney, malpractice insurance company executive and an LNC. The takeaway from that discussion was disappointing to say the least – but not surprising. Clearly, the interests of the individuals involved in a lawsuit – plaintiffs, defendants, attorneys and insurers – trump patient safety.

Together we can change that. Can we try?


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