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Michelle Mello, JD, PhD, and Jeffrey Catalano, Esq - members of MACRMI - co-authored an editorial accompanying the study on the use of nondisclosure clauses in malpractice settlement agreements reported in JAMA Internal medicine by author Dr. William Sage of the University of Texas School of Law in Austin. You can view the study by Sage and his colleagues, here. In the JAMA Internal Medicine editorial, Mello and Catalano write about how some nondisclosure clauses should never be justified, and others should be negotiated on a case-by-case basis. Click here to read the editorial. Below you will find quotes from the interview that Mello had with Reuters as they wrote a story about the editorial. Read the Reuter's article, here


Michelle Mello, JD, PhD and Reuters


1. You note that some types of nondisclosure agreements can't be justified - what are these and why shouldn't they ever be used?

Nondisclosure provisions that prohibit plaintiffs from talking to regulatory bodies, like state boards of medical licensing, about what happened to them are really objectionable. Many malpractice plaintiffs sue not just to get compensation, but because they feel it could help prevent someone else from being hurt as they were.  Having to pay out a big settlement might inspire corrective action by healthcare providers--but it might not. Patients may also want to alert disciplinary bodies to a potential problem of physician incompetence.  Even though patient complaints aren’t the most important source of information for those bodies, patients ought to be able to make such complaints. Patients shouldn’t have to choose between accepting compensation and acting on a perceived obligation to try to ensure the physician doesn’t hurt someone else.

2. You also note that some nondisclosure provisions should be open to negotiation - what are these and what are the circumstances where they might be appropriate?

Although the notion of buying an injured person’s silence seems distasteful, certain kinds of nondisclosure provisions can serve the interests of both plaintiffs and defendants, without doing much harm to the public interest. These include restrictions on disclosing the physician’s or healthcare institution’s name and the settlement amount. Just knowing that a particular doctor or hospital settled a malpractice claim doesn’t tell consumers very much about whether they should seek care from that provider, because cases are often settled where it’s not clear that an error occurred, because the injury that happened may be very unusual, and because the institution may have taken steps to fix the dangerous condition. For those same reasons, defendants may not want the settlement publicized. The amount of the settlement, too, shouldn’t influence consumers’ decisions, because it tells us little about the ongoing quality of care.

A harder question is presented by restrictions on the patient’s ability to talk about the facts of the event, without identifying anybody.  Conceivably there could be cases where that serves the parties’ interests, but ordinarily, defendants shouldn’t ask patients to agree to that. Talking about their experiences is an important part of the healing process for many injured patients. It can also make them powerful advocates in the patient safety movement.

3. You highlight the importance of doctors or hospitals being open with patients and families about errors - why is it so hard in some cases for doctors to apologize for a mistake? Does fear of litigation stop hospitals or doctors from being honest in some cases and admitting an error? If so, is this a legitimate fear?

No one likes to admit mistakes, especially when we’ve hurt someone. In medicine, several factors make it hard for doctors to overcome that very human reaction. The threat that disclosing an error could trigger a lawsuit is one factor—although many states protect the doctor’s apology from being used against him or her in litigation, and many physicians are aware of research suggesting that apologizing can reduce their risk of being sued. Apologizing can defuse patients’ anger and give them something we know patients need in the aftermath of a medical error: hearing someone take responsibility for what happened and for preventing a recurrence. Two other factors that contribute to physicians’ reluctance to disclose errors and apologize for them are fear of a punitive response by their employer or superiors, and lack of training for conducting those tough conversations.

4. California and other states have capped medical malpractice awards - does this help from the standpoint of improving transparency or making it easier for patients to receive settlements when they have been harmed?

In theory, it might.  Doctors might be more willing to disclose errors if the potential legal consequences are lower. Plaintiffs and defendants should be better able to reach a settlement agreement where they agree on the value of a case, which is more likely when damages are limited by law. In practice, I’m not convinced there’s much effect. I suspect doctors’ liability fear has less to do with the size of a potential award, since most physicians are well insured, than with how much they dread the litigation process and the stigma of being accused of negligence. And even in states without damages caps, malpractice claims rarely go to trial.

5. Big picture - how important is transparency and how much transparency is needed to keep patients safe and make sure systematic or recurring mistakes are stopped but that physicians and doctors don't make decisions out of a fear of litigation rather than the best medical choice?

Transparency is critically important to improving patient safety, but we don’t think transparency with the public is as important as transparency within healthcare organizations. The big gains in safety occur when physicians and their institutions identify and act on problems. That requires a safe space for them to discuss harm events and what to do about them—which is actually an argument for less public sharing of information about particular harm events, not more. Oversight is important, though, so we need to keep avenues open for patients to communicate with regulatory bodies about harm events.


Source: an expansion of the email interview for the article

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