Importance: Honesty and transparency are essential aspects of health care, including in physicians' and hospitals' responses to medical error. Biases and habits associated with medical malpractice litigation, however, may work at cross-purposes with compassion in clinical care and with efforts to improve patient safety.
Objective: To determine the frequency of nondisclosure agreements in medical malpractice settlements and the extent to which the restrictions in these agreements seem incompatible with good patient care.
Design, setting, and participants: We performed a retrospective review of medical malpractice claim files, including settlement agreements, for claims closed before (fiscal year 2001-2002), during (fiscal year 2006-2007), and after (fiscal years 2009-2012) the implementation of tort reform in Texas. We studied The University of Texas System, which self-insures malpractice claims that involve 6000 physicians at 6 medical campuses in 5 cities.
Main outcomes and measures: Nondisclosure provisions in medical malpractice settlements.
Results: During the 5 study years, The University of Texas System closed 715 malpractice claims and made 150 settlement payments. For the 124 cases that met our selection criteria, the median compensation paid by the university was $100,000 (range, $500-$1.25 million), and the mean compensation was $185,372. A total of 110 settlement agreements (88.7%) included nondisclosure provisions. All the nondisclosure clauses prohibited disclosure of the settlement terms and amount, 61 (55.5%) prohibited disclosure that the settlement had been reached, 51 (46.4%) prohibited disclosure of the facts of the claim, 29 (26.4%) prohibited reporting to regulatory agencies, and 10 (9.1%) prohibited disclosure by the settling physicians and hospitals, not only by the claimant. Three agreements (2.7%) included specific language that prohibited the claimant from disparaging the physicians or hospitals. The 50 settlement agreements signed after tort reform took full effect in Texas (2009-2012) had stricter nondisclosure provisions than the 60 signed in earlier years: settlements after tort reform were more likely to prohibit disclosure of the event of settlement (36 [72.0%] vs 25 [41.7%]; P < .001), to prohibit disclosure of the facts of the claims (31 [62.0%] vs 20 [33.3%]; P = .003), and to prohibit reporting to regulatory bodies (25 [50.0%] vs 4 [6.7%]; P < .001).
Conclusions and relevance: 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. Some agreements prohibited reporting to regulatory agencies, a practice that the health system changed in response to our findings.
Mello MM, Catalano JN. Mello MM, et al. JAMA Intern Med. 2015 Jul;175(7):1135-7. doi: 10.1001/jamainternmed.2015.1038. JAMA Intern Med. 2015. PMID: 25961316 No abstract available.
Sage WM, Harding MC, Thomas EJ. Sage WM, et al. Health Serv Res. 2016 Dec;51 Suppl 3(Suppl 3):2615-2633. doi: 10.1111/1475-6773.12609. Epub 2016 Nov 4. Health Serv Res. 2016. PMID: 27813058 Free PMC article.
Brown TW, McCarthy ML, Kelen GD, Levy F. Brown TW, et al. Acad Emerg Med. 2010 May;17(5):553-60. doi: 10.1111/j.1553-2712.2010.00729.x. Acad Emerg Med. 2010. PMID: 20536812
Morris JA Jr, Carrillo Y, Jenkins JM, Smith PW, Bledsoe S, Pichert J, White A. Morris JA Jr, et al. Ann Surg. 2003 Jun;237(6):844-51; discussion 851-2. doi: 10.1097/01.SLA.0000072267.19263.26. Ann Surg. 2003. PMID: 12796581 Free PMC article.
Peterson JE Jr. Peterson JE Jr. Semin Diagn Pathol. 2019 Sep;36(5):366-371. doi: 10.1053/j.semdp.2019.06.006. Epub 2019 Jun 28. Semin Diagn Pathol. 2019. PMID: 31351825 Review.
Traina F. Traina F. Clin Orthop Relat Res. 2009 Feb;467(2):434-42. doi: 10.1007/s11999-008-0582-z. Epub 2008 Nov 5. Clin Orthop Relat Res. 2009. PMID: 18985423 Free PMC article. Review.
Avraham R, Silver C. Avraham R, et al. Isr J Health Policy Res. 2018 May 14;7(1):25. doi: 10.1186/s13584-018-0220-5. Isr J Health Policy Res. 2018. PMID: 29759077 Free PMC article. Review.
Sage WM, Harding MC, Thomas EJ. Sage WM, et al. Health Serv Res. 2016 Dec;51 Suppl 3(Suppl 3):2615-2633. doi: 10.1111/1475-6773.12609. Epub 2016 Nov 4. Health Serv Res. 2016. PMID: 27813058 Free PMC article.
Lee YH, Chen CC, Lee SK, Chen CY, Wan YL, Guo WY, Cheng A, Chan WP. Lee YH, et al. BMJ Open. 2016 Sep 20;6(9):e010756. doi: 10.1136/bmjopen-2015-010756. BMJ Open. 2016. PMID: 27650758 Free PMC article.