Chemnick | Moen | Greenstreet

Medical Malpractice. It's All We Do. 206-443-8600

On confidentiality

Posted Friday, September 6, 2019 by Carl-Erich Kruse

Defendants insist almost universally on confidentiality agreements as part of any settlement. The terms of the agreements commonly express that no details of the settlement may be disclosed by the settling party, and doing so could unwind the settlement.

There are several reasons defendant medical providers insist on confidentiality; one is to protect said providers from the embarrassment of being associated with a significant settlement. Settlements are, though, reported to the National Practitioner Databank, a confidential national database that tracks settlements and adverse actions against providers. It is a system used by hospitals and clinics and the like to confidentially track providers. Access to the databank is limited; only hospitals and state licensing boards may receive information from the databank.

While the system is part of a larger effort to improve quality of care - by way of making it harder for bad acting doctors to hop from venue to venue - the databank and most settlements continue to remain confidential.

With all that in mind, not all settlements are the result of a lawsuit. Lawsuits bring unwanted publicity and scrutiny. So, claims may be settled pre-litigation, in part to avoid this embarrassment. But, even if a suit is filed, parties can move to seal court documents, an action routinely granted by courts. So confidentiality does not itself disappear upon filing of a lawsuit.

The reason we raise the issue is that significant settlements – multi-million dollar settlements – are not offered for frivolous lawsuits. They are instead the result of significant errors that more likely than not will be proven in court. Significant errors are very much in the public interest because patients have a right to know who their providers are, what they are capable of, and what they have done in the past. This thinking is not unlike the concerns we identified in our recent blog post about the North Carolina Medical Center.

Sometimes it takes a confidential tip to reveal a confidential settlement, a story about Neil Armstrong’s Death highlighted recently by The New York Times. While a community medical center committed avoidable medical error, the story, not even the claim, did not make the news until sealed documents were provided to a news outlet. And while we hope and expect that the death of Neil Armstrong provided a wake up call to improve medical decision making at the hospital, it is entirely possible that the confidentiality of the case and settlement provided cover so the hospital had little more than headaches.

Meanwhile, future patients received cardiac care at Mercy Health - Fairfield Hospital have had no knowledge of its significant avoidable error. Had they known, they may have chosen to receive care elsewhere; or they may take that knowledge to expect that that balls would not be dropped in the future. But patients did not have that choice, and the hospital nearly avoided having to admit its role in the death of one of the most famous people on earth.

While we do not advocate complete transparency in the medical negligence claims process, it is hard to imagine how increasing confidentiality benefits consumers.

Chemnick | Moen | Greenstreet
115 NE 100th St #220, Seattle, WA 98125 US
Phone: 206-443-8600
Fax: 206-443-6904