Volume 36

Non-Disclosure Provisions in Medical Malpractice Settlements: The Silent Killer of Accountability and Patient Safety

by N. Joshua Morris

Two of the primary goals of medical malpractice litigation are to promote patient safety and deter misconduct by medical professionals. These two goals are of paramount importance as patients are largely without a significant level of control over their outcome(s) once treatment begins. However, today, both of these goals are under fire in a variety of different ways. One of the, if not the most important, ways that they are under fire is by the inclusion of non-disclosure pro- visions in medical malpractice settlement agreements. These provisions typically condition payment, by means of settlement, on a very strict form of non-disclo- sure. Additionally, a large number of these provisions even preclude patients, or their families, from speaking to third-party, regulatory bodies about adverse medical outcomes suffered. This Note will first establish background by giving a cursory overview of medical malpractice law, the issues of patient health, and the current status of these types of settlements. The Note will then turn to a discussion of the current debate between medical malpractice plaintiffs’ lawyers on this type of settlement in the field of medical malpractice law. Following this, the Note will provide a real-world example of issues with nondisclosure agreements in medical malpractice settlements. Finally, this Note will argue that the goals of medical malpractice litigation, professional ethics, and public policy support the prohibition, or at the very least a restriction on the severity, of medical malprac- tice settlements that condition payment on silence.

Keep Reading