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Nondisclosure clauses may facilitate unsafe medical practices

Nondisclosure provisions in medical malpractice claims often have restrictions that go beyond simply protecting physicians and hospitals, according to a recently published study in JAMA Internal Medicine.

“An academic health system with a declared commitment to patient safety and transparency used nondisclosure clauses in most malpractice settlement agreements but with little standardization or consistency. The scope of nondisclosure was often broader than seemed needed to protect physicians and hospitals from disparagement by the plaintiff or to avoid publicizing settlement amounts that might attract other claimants. The agreements selectively bind patients and patients’ representatives, making them hard to justify on privacy grounds,” the researchers wrote.

To assess the frequency of nondisclosure clauses in malpractice settlements, researchers performed a retrospective review of 124 medical malpractice claim files at the University of Texas System, from before, during and after tort reform implementation.

In total, 110 malpractice settlement files (88.7%) included nondisclosure provisions. All of the nondisclosure provisions barred revealing terms and amount of settlement. Specifically, 55.5% prohibited revealing that any settlement had been reached, 46.4% prohibited revealing the facts and medical details of the claim and 26.4% prohibited claimants from filing complaints to the state medical board or other regulatory agencies.

Only 10 settlement agreements prohibited all involved parties from disclosing information about the claim, not just the claimant and their representation. Three agreements explicitly prohibited the claimant from disparaging the settling physicians and hospital.

Despite the fact that The University of Texas System provided a common legal defense for all the institutions included in the study, nondisclosure clauses varied greatly from claim to claim, ranging from 23 words in length to 385 words. 

Settlements that occurred after tort reform took full effect in Texas in 2009 were more likely to prohibit settlement events compared with settlements prior to 2009 (P < .001).

While nondisclosure provisions are designed to safeguard hospitals and physicians, in circumstances where harm is general or is likely to occur again, these provisions may actually do more harm than good, according to the researchers.

“Although confidentiality provisions in agreements settling civil litigation are common through the U.S. their utility and propriety continue to be debated. If adverse events cannot be identified and investigated, unsafe medical practices will continue. There is increasing consensus … that greater transparency to patients and the public is necessary for safety to improve,” the researchers wrote. – by Casey Hower

Disclosure: The researchers report no relevant financial disclosures.