I have written many times, here and elsewhere, about malpractice in the United States. Recently, I wrote over at The Upshot about how a significant body of evidence points to the fact that if doctors were likely better at communication, their risk of being sued would go down.
A recent study published at JAMA Internal Medicine makes the case that we aren't headed in that direction soon, though. It looks at nondisclosure agreements, specifically in a large academic health care system, something I hadn't considered before:
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.
Transparency and good communication aren't just good for avoiding malpractice suits; they're also good for patient care. However, when settling a malpractice case, an institution might seek a nondisclosure agreement from a patient. This would prevent anyone from discussing the details of the case. For the purposes of this study, researchers looked at malpractice cases, including settlement agreements, that took in the University of Texas health system in three time periods: 2001-2, 2006-7, and 2009-12. These three periods are important, because they occurred before, during, and after Texas implemented pretty comprehensive tort reform.
What they found is interesting. Over the study period, there were a total of 715 closed malpractice claims and 150 settlement payments. Some of those 150 were excluded because they involved only defendants not from The University of Texas making payments, and some because they involved only minor dental injuries.
Of the 124 analyzed, the median payment was $100,000, with a range of $500 to $1.25 million. The average payment was just over $185,000.
The vast majority of these (89%) involved nondisclosure provisions. All of them prevented anyone from disclosing the settlement terms or the amount of any payments. More than half (56%) prohibited disclosing a settlement had been reached at all, 46% prevented discussion of the facts of the claim. More than a quarter prevented involved parties from reporting anything to regulatory agencies, and 9% not only prevented any disclosures from the claimants, they also prevented disclosures from physicians or hospitals.
The disclosure agreements that were signed in the last period, after tort reform, had stricter provisions than those signed before. They were more likely to prevent disclosure of the settlement event, the facts of the case, or the reporting to regulatory bodies.
There are legitimate reasons that the system might want to keep claimants from discussing the terms of cases. Settling is sometimes a financial decision (ie when it's cheaper to settle than to fight a claim in court). When that is the case, discussing settling could look like an admission of guilt when it's really not. Some people also worry that if the terms (and sometimes large dollar values) of settlements got out, it could spur others to take a chance and see if they could get some money out of the malpractice system.
But part of the reason malpractice cases are important is to identify areas where errors occurred, and then to make sure that they don't occur again. Nondisclosure agreements run against that purpose by preventing open dialogue about what happened, and how we can prevent it from happening again. It's also telling that after tort reform, when there would have been less of an incentive to sue, restrictions became stricter.
It's especially concerning that some of the settlements prevented any disclosures to regulatory bodies. It's unclear if this is even legal in many states, and to the system's credit, the paper reports that the health system stopped doing this when the findings of this analysis were brought to light. It makes you wonder how many other systems might still be doing this, though.
Our health care system will become better and safer through honesty, transparency, and a commitment to improvement. It's unclear how nondisclosure agreements help that at all.