Nondisclosure Agreements Should Be Limited in Scope
By Greg Freeman
Malpractice settlement agreements typically include nondisclosure agreements (NDAs) that require plaintiffs to keep the terms confidential, but these clauses can be seen as unfairly keeping the public and other healthcare institutions in the dark about patient safety issues.
There is something inherently problematic about having an NDA after a malpractice settlement, says Paul Koenigsberg, JD, managing partner with Koenigsberg & Associates in Brooklyn, NY. Although it is a standard procedure that hospitals use them to protect their reputation, it often does not resonate well with the general public and the media, which often characterize it as a gag order, he says.
In some cases, it can even be a sticking point during negotiations. It is not unheard of for the aggrieved party to withdraw from talks as soon as the NDA is brought up, Koenigsberg says.
An NDA also does not necessarily lock up the information, he notes.
“The stigma associated with malpractice-related NDAs doesn’t really go away, and there’s a good reason for that. The information that hospitals try to obscure with the NDAs is publicly available, and anyone who wishes to access it to write a condemning piece could legally do so,” he says. “The NDA is more of a tool to silence the aggrieved party themselves. Accused hospitals see this as in their best interest because the aggrieved party is always the most motivated to disclose the malpractice case. That is, unless they are compelled to keep shut about it first.”
The structuring of these NDAs also often is problematic, Koenigsberg says. There is very little consistency or standardization on how these agreements are structured and worded, he says, which often gives hospitals leeway to purposely broaden the scope of non-disclosure beyond what is necessary to protect their staff and the hospital’s reputation.
Nonetheless, Koenigsberg says NDAs do have their place in settling malpractice cases. For medical institutions, it often is the single most important document that protects them from being flooded by lawsuits that seek to profit from pressing malpractice charges.
“That being the case, hospitals can and should still endorse NDAs during settlement, but it should be clear to the victims what the scope of the NDA is and that they are unconditionally amenable to it,” he says. “One very important sticking point pertains to the disclosure of the facts of the claim. I think this shouldn’t be curtailed at all, or only limited inasmuch as it is necessary to protect the healthcare provider’s reputation.”
Source
- Paul Koenigsberg, JD, Managing Partner, Koenigsberg & Associates, Brooklyn, NY. Telephone: (718) 690-3132. Email: [email protected].
Greg Freeman has worked with Relias Media and its predecessor companies since 1989, moving from assistant staff writer to executive editor before becoming a freelance writer. He has been the editor of Healthcare Risk Management since 1992 and provides research and content for other Relias Media products. In addition to his work with Relias Media, Greg provides other freelance writing services and is the author of seven narrative nonfiction books on wartime experiences and other historical events.
Malpractice settlement agreements typically include nondisclosure agreements that require plaintiffs to keep the terms confidential, but these clauses can be seen as unfairly keeping the public and other healthcare institutions in the dark about patient safety issues.
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