An ugly truth about malpractice lawsuits is that some of the most indefensible violations of patient safety are covered up by hospitals, clinics and doctors with the complicity of the lawyers representing the injured patients. This happens when settlements are entered into that require the patient to keep confidential everything that happened, and sometimes to even pretend it never happened.
USA Today has a big takeout today that describes a particularly egregious example: the prestigious Cleveland Clinic covered up a rape allegation against one of its surgeons by settling the patient’s claim and requiring the patient to sign a settlement document promising to remain silent about the episode. Eventually the surgeon resigned quietly and moved onto another health care institution, which of course knew nothing about the allegations until informed recently by the newspaper.
Everybody is familiar by now with how secret settlements have allowed sex abusers in the entertainment and media world – Harvey Weinstein, Bill Cosby, Bill O’Reilly and the rest of the gallery of shame – to buy off their accusers and go onto perpetrate harms against others.
The USA Today piece extends into health care the national conversation about sexual misconduct in the workplace. But secrecy in settlements is about a lot more than sexual issues. Patient safety is often compromised when plaintiff attorneys agree to gag our clients and seal even the public record facts of a case. Reporter Jayne O’Donnell of USA Today deserves kudos for spotlighting this issue.
I and my law firm have long been outspoken about how secret settlements not only hurt patient safety but also harm the individual patients we represent, when we have them sign off on a settlement that silences them from talking about a life-changing event in their lives. You can read about our stand on our website and watch a video by me talking about the issue.
We plaintiff lawyers do have weapons to fight back against demands by health care institutions for secrecy. I’ve given many talks to lawyer groups around the country about this. I explain to them that a growing number of jurisdictions say that overly broad secrecy clauses are unethical and violate Model Rules of Professional Conduct, especially Rules 3.4(f) and 5.6(b). Both Maryland and the District of Columbia now say it’s unethical for lawyers to agree to cover up the public record facts about a legal case.
My own practice in settling cases is to agree to keep the amount confidential, since that’s usually in my client’s best interest, but to insist that the public record facts of the case have to stay public. That’s the best balance for public safety and the rights of the individuals involved.