Confidentiality Clauses Are Killing Patients

Our most egregious mistakes in medicine often become lawsuits. A common denominator of those lawsuits is that they should prevent these situations from happening to another patient. However, the worst of these cases are settled pre-trial and almost all of those settlements contain a confidentiality or non-disclosure agreement (NDA), also known as a “gag order.” No one can talk about it. No one learns anything. We bury the learnings and bury the next patient.

But we can learn from these events by telling the stories — what happened, why, and what we should learn from them. The stories can be told anonymously and with no mention of settlement amounts. No blame and shame, just learnings.

Stories have been the most memorable source of learning for millennia. They remain “the brain’s preferred unit of learning — and the most powerful tool of persuasion.” Without learning from these stories, we will continue to repeat our mistakes. Patient safety will not improve.

Lawsuits Do Not Improve Quality

Assuring that mistakes are not repeated should be our number one goal. Several studies have shown that lawsuits do not improve quality of care. In fact, I’m not sure our tort system of attorneys, medical malpractice insurers, or those being sued has ever considered that preventing medical error should be one of their goals. Why? Because each party has a different goal — and it’s not patient safety. The irony for insurers is that their greatest opportunity for cost savings would be to eliminate medical error in the first place.

Meanwhile, we know that effectively encouraging safety is possible — we see other industries doing it much better than healthcare. The poster child for preventing error is the aviation industry. The National Transportation Safety Board (NTSB) and Federal Aviation Administration (FAA) don’t hide the outcomes of plane crash investigations — they share the learnings with every pilot, mechanic, and operator of a similar airplane.

Were it not for this transparency, passengers could perhaps be dying at a faster rate than the nearly 100,000 American lives lost annually due to medical error. If the aviation industry managed its plane crashes as we in healthcare manage ours, none of us would dare get on an airplane.

Case Study: Spinal Epidural Abscess

During one 12-month period, four different medical malpractice attorneys in one state asked me to review the records of four different patients who were left paralyzed when their spinal epidural abscess (SEA) was missed.

In my experience, a SEA can be eliminated in the majority of cases with thorough patient history, including an assessment of risk factors such as immunocompromise, diabetes, alcohol/substance abuse, recent spine surgery, hardware, and so on. If a SEA remains possible, a normal sedimentation rate (ESR) or C-reactive protein (CRP) will eliminate even more of these cases. If the ESR or CRP is elevated or a strong suspicion remains, an MRI of the entire spine is justified. I’d estimate that around half of those MRIs may be positive. The element missing from each of the four cases was, in my professional opinion, “failure to think about it.”

I was frustrated that there was so little awareness of SEA as a cause of back pain, so when those four cases settled, I anonymized the stories and shared the learnings with my emergency medicine colleagues. This led to a free monthly story-telling project that is now in its 10th year with over 5,000 readers. The format is simple: facts, plaintiff arguments, defense arguments, outcome, takeaways, supporting references. The “takeaways” are the key.

What Does Our Industry Think?

Five years ago, I hosted a panel discussion on this topic at an American Association of Legal Nurse Consultants conference that was very enlightening as to continued use of NDAs in healthcare. The panel included a plaintiff attorney, defense attorney, legal nurse consultant, and an executive from a medical malpractice insurance company. The panelists were told to assume that learning from our mistakes would be fully anonymous, never naming names or disclosing the amount of a settlement.

Despite this directive, the various panelists stated their positions as follows:

• Plaintiff attorney: My responsibility is to my client. I need to do the best I can. If the defense demands confidentiality and is willing to pay my client more for that, taking care of my client comes first. [Which only assures that no one learns and the same mistake will be repeated.]
• Defense attorney: My client’s livelihood is at stake. A single mistake should not cost them their reputation. Sometimes I have to pay more to protect my client. [This fails to account for the fact that we are not disclosing names.]
• Insurance company executive: Transparency will lead to more copycat lawsuits. Plaintiff attorneys will gain insight and ammunition to pursue more cases, causing medical malpractice insurance rates to rise. And we already share information via claim reports and case studies. [But the vast majority of cases result in pre-trial settlements, which have NDAs, so those lessons are never learned.]
• Legal nurse consultant: Nurses advocate for the safety of their patients. Greater transparency has the potential to make healthcare safer. It could also educate the public to better advocate for themselves. [Yes!]

After an hour of discussion and another 30 minutes of audience questions, the elephant in the room remained: We know the right thing to do, but we have no motivation to do it.

A Path Forward

We can only avoid making mistakes if we know what mistakes are being made. Our goals should include:

• Improving patient safety by treating every medical malpractice settlement as a teaching opportunity.
• Sharing the learnings from our mistakes — anonymously — with those physicians who could possibly repeat the error.

One advocacy group working toward such a solution is the recently established National Patient Safety Board, modeled after aviation’s NTSB, with the goal of creating a data-driven, scalable approach to preventing and reducing patient safety events in healthcare settings.

Improving transparency by eliminating NDAs remains the lowest-hanging fruit in the entire patient safety movement. Let’s learn from the mistakes of others, not our own.

Charles Pilcher, MD, is a retired emergency physician and emergency department medical director. He currently serves on the EvergreenHealth governing board in Kirkland, Washington, and chairs the Board Quality and Safety Committee. He has served as a medical-legal consultant in malpractice cases throughout his career and is the editor/publisher of a free monthly newsletter “Medical Malpractice Insights — Learning from Lawsuits.” Opinions expressed are the author’s alone.

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