A recently published study takes a critical look at nondisclosure provisions, or "gag clauses," which are commonly used in the settlement of medical malpractice claims in Florida and across the country.
These nondisclosure provisions generally are aimed at shielding a medical professional and/or hospital from the negative publicity that can arise when news of a medical error - especially one that harmed a patient - gets into the public arena.
These clauses are also aimed at preventing so-called "predatory litigation," or claims being brought against the same medical professional and/or facility that allege similar errors and injuries.
However, according to this study, many gag clauses that are used in medical malpractice settlements seem to go well beyond what is needed to protect physicians and hospitals from the risk of negative publicity and new litigation.
In fact, the study found, the clauses "may work at cross-purposes with compassion in clinical care and with efforts to improve patient safety."
What Are Common Types of Nondisclosure Provisions?
JAMA Internal Medicine published the study online in May, with accompanying commentary by legal professionals.
The researchers conducted the study to find out how often nondisclosure clauses are used in medical malpractice litigation and to determine whether these clauses "seem incompatible with good patient care."
The study focused on medical malpractice claims involving the University of Texas health system, which is comprised of more than 6,000 doctors and spread across six campuses in five cities.
The researchers examined malpractice claims that were settled before, during and after "tort reform" measures were enacted in Texas during the 2000s - a total of five years. A total of 124 settlements met criteria for the study. Out of those cases, the average compensation paid was $185,372.
The majority of the settlements - 110, or 88.7 percent - involved nondisclosure provisions - a stat that reveals just how common these clauses have become in medical malpractice litigation today.
The researchers found that all 110 of those cases barred the disclosure of the terms and amount of the settlement. Other clauses prohibited the disclosure of:
- The fact a settlement had been reached (55.5 percent)
- The facts of the case such as the alleged medical negligence (46.4 percent).
A disturbing finding was that more than a quarter of the nondisclosure clauses, or 26.4 percent, prohibited the reporting of the case to a regulatory agency (such as the Florida Board of Medicine in our state). Such a clause certainly is at odds with improving patient safety.
Only 2.7 percent of the clauses barred the plaintiff from making disparaging comments about the physician or hospital.
Interestingly, settlements reached after tort reform contained more strict nondisclosure provisions, the researchers found.
A Settlement Should Meet Your Goals and Needs
As this study shows, patients or families who have been harmed by medical errors are often forced to make tough choices when a settlement is conditioned on agreeing to a nondisclosure provision. Many may find it difficult to accept a settlement offer when it may fail to prevent others from suffering similar harm.
If you or a loved one has been harmed by medical malpractice, it will be important to work with a lawyer who will work hard to protect your rights and interests - including your interest in having certain information disclosed to the public - while seeking a proper settlement of your claim.
To learn more about medical malpractice settlements, contact The Maher Law Firm today.