Professor Michelle Mello weighs in on nondisclosue clauses in medical malpractice settlements, and why some which prohibit plaintiffs from talking to regular bodies should be viewed as objectionable. 

Most medical malpractice settlements include some type of nondisclosure clause, but the restrictions may go beyond what’s necessary to improve patient care, a study at one Texas health system suggests.

Researchers reviewed settlements at the University of Texas System, which provides medical malpractice insurance for more than 6,000 physicians at six campuses in five cities. They found that roughly nine in 10 agreements included nondisclosure provisions.

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Some types of nondisclosure clauses should never be justified, but others should be negotiated on a case-by-case basis, Michelle Mello, a professor of law and health policy at Stanford University, wrote in an editorial accompanying the study.

“Nondisclosure agreements that prohibit plaintiffs from talking to regulatory bodies, like state boards of medical licensing, about what happened to them are really objectionable,” Mello told Reuters Health by email. While regulators may get information in other ways, “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.”

At the same time, some restrictions may serve both patients and doctors in the long run, such as barring disclosure of the physician or hospital involved or the settlement amount, she said.

“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 situation.”

Transparency is crucial for improving patient safety and addressing any problems with an individual physician or practices at hospital that might contribute to mistakes, but the most important aspect of this isn’t sharing with the public, Mello said.

“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 harm events, not more.”