In malpractice settlements, injured parties often agree to keep mum

(Reuters Health) - Most medical malpractice settlements include some type of nondisclosure clause, but the restrictions may go beyond what’s necessary to improve patient care, a study at one Texas health system suggests.

Researchers reviewed settlements at the University of Texas System, which provides medical malpractice insurance for more than 6,000 physicians at six campuses in five cities. They found that roughly nine in 10 agreements included nondisclosure provisions.

“We found that habitual practices involving silence and secrecy around medical errors can persist in a well-intentioned academic health system that faces little litigation risk and generally attempts to treat patients fairly and transparently,” lead author Dr. William Sage, of the University of Texas School of Law in Austin, said by email.

As reported in JAMA Internal Medicine, Sage and colleagues reviewed completed malpractice cases for fiscal years 2001-2002, 2006-2007, and 2009-2012. During those periods, the University of Texas System closed 715 malpractice claims and made 150 settlements.

The authors reviewed 124 of those settlements, excluding 20 cases in which only defendants from outside the university made payments and six agreements involving minor dental injuries.

Payments by the university ranged from $500 to $1.25 million, averaging about $185,000.

All 110 settlements with nondisclosure clauses prohibited disclosure of the settlement amount and terms of the deal. More than half banned sharing that a settlement had been reached.

Almost half of nondisclosure provisions barred discussion about the underlying facts about the medical error. About one quarter prohibited complaints to regulators.

In 9 percent of cases, it wasn’t just patients or families who agreed to secrecy: the doctors and hospitals were also barred from sharing details.

While the number of settlements reviewed was small, and covered just one health system, the findings point to a need for nondisclosure agreements to be reviewed elsewhere, the researchers wrote.

“The findings are important because they remind us how concerned professionals can be about reputation and how uncomfortable publicity can make them, even when science and ethics have advanced to favor greater information exchange,” Sage said.

Some types of nondisclosure clauses should never be justified, but others should be negotiated on a case-by-case basis, Michelle Mello, a professor of law and health policy at Stanford University, wrote in an editorial accompanying the study.

“Nondisclosure agreements that prohibit plaintiffs from talking to regulatory bodies, like state boards of medical licensing, about what happened to them are really objectionable,” Mello told Reuters Health by email. While regulators may get information in other ways, “patients shouldn’t have to choose between accepting compensation and acting on a perceived obligation to try to ensure the physician doesn’t hurt someone else.”

At the same time, some restrictions may serve both patients and doctors in the long run, such as barring disclosure of the physician or hospital involved or the settlement amount, she said.

“Just knowing that a particular doctor or hospital settled a malpractice claim doesn’t tell consumers very much about whether they should seek care from that provider because cases are often settled where it’s not clear that an error occurred, because the injury that happened may be very unusual and because the institution may have taken steps to fix the dangerous situation.”

Transparency is crucial for improving patient safety and addressing any problems with an individual physician or practices at hospital that might contribute to mistakes, but the most important aspect of this isn’t sharing with the public, Mello said.

“The big gains in safety occur when physicians and their institutions identify and act on problems. That requires a safe space for them to discuss harm events and what to do about them – which is actually an argument for less public sharing of information about harm events, not more.”

SOURCE: JAMA Internal Medicine, online May 11, 2015.(This version of the story has been refiled to fix spelling of source's name in paragraph 13)