When we are able to resolve claims for our clients prior to trial, such settlements almost always come with confidentiality agreements. In exchange for compensation for injuries suffered, the victim agrees to give up his or her claim in court, and often promises not to disclose information related to the settlement, including the defendant, the settlement amount, and other identifying information.

Typically the reason for these confidentiality agreements, also known as non-disclosure agreements, is to protect the reputation of the doctor or institution. This has some merit, since the very fact of a malpractice settlement tells a potential patient or employer of the physician very little about the quality of care typically provided by that doctor. Malpractice claims are often very complex, and there are many reasons settlements are reached other than the quality of care provided.

Unfortunately, in a society with a medical system that purports to value transparency to improve patient safety, these types of agreements can also hinder that goal.

Recently, researchers reviewed data from the University of Texas System, which insures over 6000 doctors in Texas. You can read articles about the researcher’s findings here:

[In malpractice settlements, injured parties often agree to keep mum][1]

What the researchers found was that, of the 124 settlements that met their criteria, 110 included nondisclosure clauses that prohibited disclosure of the amount of the settlement and the terms of the deal, while half banned disclosing the fact of settlement itself. Some included clauses the prevented the injured person to disclose the facts of the case to regulatory bodies, like state boards of health or medical licensing.

In our practice, in the beginning of a case when we first contact the defendant’s insurer, we typically get a form letter that includes draft language of any potential settlement. This often includes restrictions on disclosure of a potential settlement much like is described above. And at the end, when settlements tend to occur after a long day of negotiations, our clients tend to be physically, mentally and emotionally taxed. At the end, when a tentative settlement is reached, our injured clients have little incentive to halt the process over such an agreement.

[1]: http://www.reuters.com/article/2015/05/11/us-malpractice-nondisclosure-idUSKBN0NW21H20150511 “In malpractice settlements, injured parties often agree to keep mum”