Confidential Settlement Agreements: Which should win – privacy or right-to-know?

Understanding the term – ‘confidential settlement agreement’ – is the easy part. What’s the ‘sticky wicket’ of this ever-growing form of  settlement agreement? – the conflicting interests of the parties’ privacy concerns versus the public’s right to know.

Let’s start by providing you with the somewhat typical, generic language used (in some form or other) of such provisions in a settlement agreement:

Confidentiality:  The Releasing Party (Releasor) agrees that neither he nor his attorneys shall reveal to anyone, without prior written consent of the Party Being Released (Releasees), the facts or any of the terms of this Settlement and Release Agreement. Releasor will not disclose the identities of the Releasees, whose conduct was the subject of this lawsuit.  It is further understood and agreed to by the parties to this Settlement and Release Agreement that no part of this non-disclosure agreement shall be construed to prohibit counsel from making reasonable and necessary disclosures to carry out the administrative and ministerial tasks incident to this settlement.

Needless to say, these can be quite specific and many times are aimed at prohibitions of disclosure of not only the fact of settlement but also any specificity regarding the identity of the settling party and the amount of the settlement – basically prohibitions against disclosing any identifying information to the public and even more specifically to any form of media outlet. It’s one thing for Client Jones to tell his neighbors that he just settled his lawsuit for thousands or millions of dollars; it’s quite another when a settling doctor or hospital sees their name splashed across the print or online headlines of local media outlets.

The Settling Defendant’s Interests:

This is perhaps the easiest  to understand from the viewpoint of the person who agrees to pay settlement monies to the plaintiff who sued them. In the context of medical malpractice cases, no health care provider, especially a physician, wants their good-name/reputation tarnished by news of having settled a malpractice case. Since the reasons for agreeing to a settlement might be avoidance of a verdict  in excess of  the physician’s malpractice insurance, it could be argued that in such instances it is simply not fair to broadcast the fact that the physician settled because they knew they had done something wrong which hurt one of their patients. Keep in mind, that in settlement agreements there is usually a statement that the settling party – e.g. the physician sued for medical malpractice – denies all allegations of wrongdoing.

That being said, what about those instances – which are not the minority in our case load – in which the conduct of the health care provider does constitute a violation of the standard of care – aka medical malpractice/negligence? Why shouldn’t the public be aware that Dr. Smith did render bad care that caused serious harm? Was this just a ‘bad day’ for Dr. Smith in the operating room or  office or a pattern of poor care? Doesn’t the public have a right to know this?

Dr. Smith’s counsel will argue, as trained to do, that there is a defense to every case. In my 35 years of experience, this is often the case. Some defenses are better than others; some are flat out lame. Can’t the public decide on their own? Don’t they have a right to make that judgment? Some would argue they don’t since they don’t possess the expertise to understand the many nuances that go into these settlement decisions. Are they right? It seems you will never get the chance to decide since you will never know about what happened due  to confidentiality agreements.

The Plaintiff-Patient’s Interests:

It is unfortunately the case that when a number of our client’s wins a large amount of  cash in settlement or verdict, they fear their past and present friends and relatives will then come out of the woodwork. I liken it to professional sports figures whose coterie of friends are at  best ‘hangers-on’ for the money and good times.

People who have had to relive tragedies in their lives don’t want the pubic to know for a multitude of reasons.  We have represented people whose parents didn’t even know (and to this day don’t know) that they had been in a lawsuit and even gone through a trial! We have always respected the client’s right to privacy. Does that trump the public’s right to be informed?

The Plaintiff Lawyer’s Interest:

What interest could the lawyer possibly have? – you ask. Since this is my bailiwick, permit me to answer the question – marketing. Have you had occasion to visit the websites or print media advertisements of any plaintiff lawyers recently. If you have, I suspect you have seen the crawl or large font posting of verdicts and settlements blasted across the screen/page. If you have a confidentiality provision, this probably should not be the situation. I say probably because some lawyers insist that the right to publicize ‘anonymously’ be  crafted into the confidentiality agreement. Many likely do not have this ‘exception’ language but seem to have amnesia when it comes to this provision.

If you look at our website, you won’t see this form of advertising/marketing. Does this mean we haven’t settled a number of cases for large amounts of money for our clients? Hardly. Since the beginning of this year alone, we have settled a number of cases for millions of dollars, with the likelihood of many more  to come – God willing! We have elected to respect our client’s  right to privacy on the one hand. We have also determined that in some instances there will be no settlement if we put our firm’s interests of marketing ahead of the client’s ability to obtain a settlement, when the defendant is demanding confidentiality.

Do we have news accounts of past verdicts on our website? We do. Those cases went to trial and were deemed newsworthy enough by local media to report on the verdicts regardless of our position on marketing. They were in the public domain; we took the marketing advantage. Hey, we’re just being lawyers. Have these cases gone to appeal or settled post-verdict? You’ll never know.

Have we settled cases for millions of dollars?  Well, you’ll never know that either. We do understand our client’s rights to privacy and right to  have their interests in obtaining a settlement ahead of our marketing interests.

So what is the answer?:

From the viewpoint of the advocates of the public’s right to know, they can effectively argue in most instances that the client doesn’t have a privacy right once a lawsuit is filed. This is a matter of pubic record. Anyone can go to the courthouse in your county or state (in the case of the District of Columbia – the Superior Court) and ask to see the court files – absent an order sealing a record, which is by far the exception rather than the rule. Even in situations where a case settles under a confidentiality agreement, if one looks at the court docket of any given case, you can trace the history of a lawsuit. When you see a dismissal, do you not understand that absent the case being dismissed in favor of a defendant on motion or by court order for failure to prosecute, the case most likely settled? What happened to the non-disclosure of the fact of settlement or the likely parties to the settlement?

Are there other means to determine if a medical malpractice case has settled? If so, for how much? Well there are and there are not. Were you aware that whenever a doctor settles a lawsuit he/she is reported to the National Practitioners Data Bank? Well, all the information one could ever want is stored there, but the public has no access to this data bank – at least in terms of getting information as to a specific healthcare provider. The following is the express statement on the NPDB’s FAQ page:

The Data Banks are prohibited by law from disclosing information on a specific practitioner, provider, or supplier to the general public. However, persons or organizations may request information in a form that does not identify any particular healthcare organization or practitioner for research purposes.

Well, there goes that potential source of right to know.

What about the local state licensing agencies?  Let’s take Maryland, for example. The entity that controls the licensing and disciplining of physicians in the state is known as the Maryland Board of Physicians. It also has a website, which, quite  frankly, is much more transparent and informative than many and certainly more informative than the NPDB. By going to the “Search Practitioner Profile” link, you can type in a doctor’s name and find out, among other things, if there has been any disciplinary action against that physician for the past ten years. Maryland should be applauded, in fact, for its access to information on physicians. Could it do more, perhaps. That’s for another day.

In the District of Columbia, did you know you can access similar information? I invite you to undertake this exercise. Don’t be thrown-off when you do your Google, MSN or other search engine inquiry and see the District of Columbia Board of Medicine, but then you find you have been linked to the California Department of Consumer Affairs – for the Physical Therapy Board of California. Must just be a broken link! Transparency may also have a different definition in D.C.

In many of our posts we urge our readers to be informed consumers when it comes to their healthcare. Is one of the ways to become educated about your doctor or the hospital to which you planned to be admitted the  ‘best’ or ‘right’ healthcare provider for you to do such a search? We think so – at least in part. Being sued or even settling a case does not necessarily mean a physician or hospital is a bad doctor or a bad hospital. It may, however, particularly in the case of the physician, be a place you may care to start your query.

So, what is the public’s right to know in terms of confidential settlement agreements? Does the public’s (i.e. your) right to know trump that of the patient/plaintiff or the healthcare provider/defendant? Should there be a restriction on the use of these agreements – even if that also means a prohibition on the lawyer’s right to publish these settlements on their websites or ads?

I encourage and welcome your thoughts and comments. Please take a moment of your time and share these with our community of readers.

Actor Dennis Quaid sues drug maker

Last month, we reported in a blog through our website, how actor Dennis Quaid is involved as a patient advocate, after his newborn twins nearly lost their lives back in 2007, from a medical error that could have very easily been prevented.  Put simply, the precious twins were given two doses of Heparin instead of Hep-lock (an anti-coagulant medication widely used for children).  Why is this significant?  Heparin is a drug one thousand times stronger than what the twins were supposed to have received.

Earlier this week, it was reported in the Contra Costa Times, that Mr. Quaid has filed a lawsuit on behalf of his children.  As far as the extent of his children’s injuries, the article states “The children suffered internal injuries and shock, but the extent of what happened to them will probably not be known for years, according to the suit.”  The lawsuit alleges that vials of the 10,000 unit Heparin should have been recalled previous to what happened to his children, because other infants had already died from similar medication errors.  The suit also claims that the company responsible for making the drug, Baxter Healthcare, “was obligated to warn healthcare providers of the previous medication mistakes.”

We wish the best for the Quaid family, and hope that the discovery in this case shines a light on not only finding out exactly what happened in this case, but also makes information available that may be able to save the lives of other children from future similar medical errors.  We will continue to monitor the course of this case.

First Lawsuit Filed In Kleen Energy Blast – Courant.com

You will probably recall the horrific blast that occurred on February 7, 2010, at Kleen Energy power plant in Middletown, Connecticut. Six workers were killed and 26 others were injured when an explosion ripped through the building.  It was reported that a gas line purge was being conducted at the time.  For a reminder on the details of this event, see our posting filed that same day in February.   You can also watch a news report on the investigation into the cause of the explosion as well.    

Today we have learned through an article in the Hartford Courant that the first lawsuit relating to this incident was filed in the Superior Court in Hartford, CT.

Two employees of a subcontractor, Ducci Electrical Contractors, on the site that day, Timothy Hilliker and Harold Thoma, are the first to file a suit relating to this incident.  It is alleged that “…the Feb. 7 purge was poorly supervised, that active welding and grinding were taking place on-site at the time of the explosion and that a gas-fueled torch heater was running at the time of the deadly blast.”

Hilliker and Thoma are being represented by Joel Faxon of Stratton Faxon.  In an interview with the Hartford Courant, Faxon provided the essence of their claim:

“These guys showed up to work and had no concept of what was going on. There was no supervisor telling them what to do.”

Faxon said that Thoma had just stepped out of the Ducci construction trailer when the blast occurred. He suffered head injuries and has been in and out of the hospital. Hilliker was in the trailer when the blast occurred and was thrown into a wall; he also had head injuries.

Faxon said his firm represents about 12 people who were working at the plant when the blast occurred. The lawsuit names O&G Industries, the general contractor for the billion-dollar construction job; Keystone Construction and Maintenance Services Inc., which was supervising the purge; and plant owner Kleen Energy Systems LLC.

According to the report, the pipeline purging, which is the still under investigation for possible criminal charges, is expected to be the subject of much discussion at a National Fire Protection Administration safety seminar this week in San Francisco.

Dan Horowitz, a spokesman for the NFPA, stated, “You don’t want to ventilate in an area where gas can accumulate near people and ignition sources,” Horowitz said. According to Horowitz, the board is recommending a ban of indoor purging of gas lines and will state that gas should be discharged outdoors, away from all confined areas.

UPDATE:  2/25/10 – new warrant issued for site – see today’s posting in boston.com.

Senators launch fraud inquiry of Md. hospital – baltimoresun.com

St. Joseph Medical Center in Towson, Maryland, has been the subject of recent lawsuits, news reports and a myriad of other woes.  Now the Baltimore Sun reports that its conduct will be the subject of a U.S.  Senate investigation – Senators launch fraud inquiry of Md. hospital – baltimoresun.com.

The controversy swirling around the hospital concerns the alleged placement of unnecessary cardiac  artery stents in patients at the hospital by one of its former (now terminated) cardiologists, Dr. Mark Midei.

After a lawsuit was brought in Maryland by one of Dr. Midei’s former patients, the hospital issued a statement to a local news station, WBAL:

“St. Joe’s was guided by the belief that it has a moral and ethical responsibility to inform these patients of what happened. This is consistent with our mission and core values. It was the right thing to do,” the representative said through a statement.

“Questions about potential liability remain to be resolved. SJMC takes its responsibility to patients very seriously, which is why we conducted a review and notified patients and physicians. Our focus has been and will continue to be to put patients first,” the representative continued.

In a follow-up report written today, February 20, 2010, the Baltimore Sun reports:

Federal lawmakers have asked St. Joseph Medical Center to turn over three years of billing records and other documents related to cardiac care, saying they are troubled by reports of unnecessary coronary stents implanted at the Towson hospital and want to investigate for signs of Medicare fraud.

Montana Sen. Max Baucus and Iowa Sen. Charles E. Grassley – the top Democrat and senior Republican, respectively, on theSenate Finance Committee – also asked the hospital for records of its financial relationship with manufacturers of the medical devices. They set a March 12 deadline, saying their committee was launching an inquiry as part of its role “to protect taxpayer dollars from waste, fraud and abuse.”

An internet search on this story quickly reveals that a number of law firms have gotten into the fray.  Most notably, a class action lawsuit has been filed by Billy Murphy’s law firm and the Law Offices of Peter Angelos alleging, among other claims, fraud on the part of the hospital.

In a statement given to BEMORENEWS.com, Billy Murphy said:

“This is the worst abuse of the public trust we have seen in recent memory by a hospital in which patients place their confidence in seeking care and treatment,” said William “Billy” Murphy, Esquire.

Murphy added, “It is unfortunate that an institution such as St. Joseph, which has served so many people so well for so many years, would have allowed such a practice to have occurred.”

In today’s article, The Sun reports that the hospital has pledged to fully cooperate with the Senate committee’s investigation.

“Transparency and cooperation are in the best interest of the hospital’s patients, physicians, employees and community,” they said in a statement released Friday.

Dr. Midei has been recognized for years to be one of the area’s leading cardiologists.  As Billy Murphy said in his statement, St. Joe’s has held the reputation of being one of the area’s best hospitals serving many in the community for decades.  How could it all have gone so bad?   Seems like the story is just beginning…and gets worse almost by the day.