Many Malpractice Settlements Go Unreported Due to Confidentiality Agreements

Published on Jul 12, 2010 at 5:31 pm in General Blogs.

Some medical malpractice cases are resolved by settlements reached before, during or after trial. A common quid pro quo for settlement of these claims is a confidentiality agreement with terms and conditions which are typically incorporated into the “Release” the settling medical provider requires the plaintiff to sign before payment is made. There are pros and cons to agreeing to confidentiality.

Certainly, health care defendants desire that claims and settlements remain confidential for obvious reason. Likewise, some plaintiffs prefer that their affairs remain confidential. In such a case, the parties are in agreement that the confidentiality is beneficial by protecting their personal affairs from public scrutiny. Other plaintiffs, however, wish the world to know that the provider settled the claim, whether or not he or she admitted fault in the process. Public disclosure and perhaps an apology are frequentlymotivating factors for bringing claims. When public disclosure is desired, confidentiality provisions should not be agreed to as they will prevent dissemination of information that the plaintiff desires be made public.

In addition to preventing disclosure of the amount of the settlement, confidentiality agreements frequently prohibit the disclosure that a settlement of any amount was reached, or that discussions were undertaken to resolve the claim. Reference to “John Doe” and “Anonymous” in substitution for the parties’ true names is usually prohibited as well.

Although many state medical boards are suppose to keep track of malpractice claims resolved against medical providers, many do not learn of the results of settlements due to confidentiality agreements. There are exceptions in some states where governmental agencies are permitted to learn and disclose generic results of confidential settlements, but this writer is aware of more than a few cases where settlements that meet the threshold criteria for public disclosure by state licensing boards do not appear under the settling medical provider’s licensure listing.

Sometimes lawyers will negotiate confidentiality agreements for a price, i.e., they will require the settling health care provider pay for confidentiality in addition to payment for the underlying claim. In many cases, however, confidentiality is presumed and is built in to the settlement offer extended during negotiations.

If you have a case where settlement is being discussed, be sure to ask your attorney about whether confidentiality will be made a part of the ultimate agreement and consider carefully whether this is something you truly desire. Contact the attorneys at Belsky, Weinberg & Horowitz for further information on confidentiality agreements.



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