There is little standardization or consistency in nondisclosure clauses in medical malpractice settlements, according to research published online in JAMA Internal Medicine.
Dr. William Sage, from the School of Law at the University of Texas at Austin, and colleagues investigated restrictions on information in malpractice settlements reached on behalf of University of Texas physicians before, during, and after enactment of tort reform legislation in Texas. The University of Texas System self-insures malpractice claims for 6,000 physicians at six medical campuses in five cities, according to the authors (JAMA Intern Med, May 11, 2015).
During the five-year time period of the study, the average compensation paid by the university was $185,000 for the 124 cases that met the study selection criteria. A total of 110 settlement agreements included nondisclosure provisions (88.7%).
Of the nondisclosure clauses:
- 100% prohibited disclosure of the settlement terms and amounts.
- 55.5% prohibited disclosure that a settlement had been reached.
- 46.4% prohibited disclosure of the facts of the claim.
- 26.4% prohibited reporting to regulatory agencies.
- 9.1% prohibited disclosure by the settling physicians and hospital, not only by the claimant.
Sage and colleagues found that the 50 settlement agreements signed after tort reform took full effect had stricter nondisclosure provisions than the 60 signed in earlier years.
"The agreements selectively bind patients and patients' representatives, making them hard to justify on privacy grounds," they concluded. "The scope of nondisclosure agreements is often far broader than seems needed to protect physicians and hospitals from disparagement by the plaintiff or to avoid the disclosure of settlement amounts that might attract other claimants."
Some types of nondisclosure provisions are never justified, and others should remain subject to negotiation, wrote Michelle Mello, PhD, from Stanford University, and Jeffrey Catalano, from Todd & Weld law firm in Boston, in a related commentary.
"Because patients should not be forced to choose between compensation and acting on a perceived ethical obligation to try to prevent harm to others, settlement agreements should not restrict reporting to regulatory bodies," they wrote. "Adopting state statutes that prohibit these provisions involves less burden and uncertainty for plaintiffs than requiring plaintiffs to challenge them in court."
