In Pennsylvania we take it as a given that when we settle a medical malpractice case, the release tendered by the CAT Fund will contain a confidentiality provision. Even the primary carriers have picked up on the practice and insisted upon the same clause in those cases which settle without CAT Fund involvement. Yes, it has become so routine that we accept confidentiality as a fact of life in doing malpractice work. But let's step back for a moment and consider the pros and cons of the confidentiality clause.
There are essentially two arguments made in favor of confidentiality. First, that it encourages physicians and hospitals to settle cases because they know that there will be no publicity. As the argument goes, the doctors are willing to see their names reported to the National Practitioners' Data Bank, but they are not willing to see their name in the local newspaper.
The other argument in favor of confidentiality is that keeping the plaintiff's identity under wraps prevents our clients from being set upon by people with "can't miss" investment opportunities or "friends" and relatives who are down on their luck.
Are these valid arguments? Probably so as to protecting plaintiffs. Most clients do prefer to limit the number of people who are aware that they have just come into a large sum of money.
How about the argument that confidentiality promotes settlement? I am less sure about that one being valid. Doctors go to trial in many cases knowing full well that there is no confidentiality that can attach to a jury verdict. Does that mean that doctors are not influenced by the prospect of adverse publicity? Probably not. More likely, it is just a reflection of the fact that there are limits on a physician's willingness to settle a case to avoid publicity.
What are the arguments against confidentiality? First, there is legal tradition. Historically, court proceedings are matters of public record, and in the absence of some unusual circumstance so too should be the settlement.
Second, it is asserted that there is a public health interest in letting patients know which doctors or hospitals have paid malpractice claims.
Third, lawyers in particular advance the notion that the goal of efficient administration of justice is promoted if counsel can share information concerning settlements among their colleagues.
How do these arguments against confidentiality stand up under further scrutiny? As to the point about legal tradition, the proponents of confidentiality would no doubt point out that any practice is subject to change and, therefore, no violence is done to the concept of openness in our courts when two parties voluntarily agree to a confidentiality provision. Of course, the counter to that argument is that the agreement is not really voluntarily where one party is insisting upon confidentiality as a condition of settlement.
As to the argument that patients who are in the market for health care services have a right to know whether their current or potential provider has paid to settle legal claims, the medical community would point out that the premise of the public health argument is flawed since the fact of a settlement does not necessarily mean that poor medical care was rendered; it simply means that after a consideration of all the risks involved a particular party chose not to contest a claim in court. Admittedly, there are instances where questionable claims are settled, but so too are the most obvious and egregious medical mistakes. Thus the premise underlying the public health argument is not totally flawed.
As for reducing the time and expense of litigation, proponents of confidentiality would argue that, unlike product liability litigation, information sharing among lawyers is of little value in medical malpractice cases since most medical misadventures are one-time incidents. That may be true, but there are still certain common issues underlying, for example, all breast cancer cases. More importantly, it can certainly be of benefit for one lawyer to know what settlement value was assigned by the Fund to a similar case in another part of the state. Indeed, the Fund's own conduct reflects a belief in the virtue of such comparisons of case values since they assiduously maintain records and grids showing what historically has been paid to settle certain cases.
Having set out the opposing arguments on the subject, wherein lies the truth on this subject? I think the most salient argument in favor of confidentiality is that it promotes settlement, for on balance I suspect that fewer cases would settle if the doctor knew that his/her name could become tomorrow's news. Equally salient, however, is the argument that the time, expense, and even the wisdom of pursuing litigation, would be advanced if lawyers were able to share information amongst themselves.
Thus, it might be reasonable to propose that we change the current practice in the following way: Lawyers should be allowed to circulate information pertaining to a settlement in professional publications so long as the plaintiff agrees not to reveal the identity of the parties to the litigation. This seems to strike a good balance between the competing interests. On the one hand, it does not subject the doctor or hospital to public embarrassment, but on the other hand it permits lawyers to network and share information. At least that would permit the patients' lawyers to assemble the same sort of information that the CAT Fund and the carriers routinely gather. In short, it would level the playing field.