A recently published study out of Johns Hopkins concluded that medical errors are the third leading cause of death in the United States. As I watched the sixty seconds of national coverage dedicated to this revelation it occurred to me- this isn’t really newly discovered information but yet another confirmation of the fact that over 1,000 people die a day in hospitals due to preventable medical errors. So, sixty seconds of national news coverage seems about right for an old worn out story.
What I find most troubling is that despite this truth, legislators, politicians and many of our neighbors and friends sincerely believe that lawyers are the cause of medical malpractice. We could debate the endless reasons behind this perception but at the end of the day, the reasons for this belief do not matter to the problem at hand- health care providers are killing people.
Now I’m pretty sure that few lawyers are in the operating room performing surgery or providing any health care to patients in hospitals – so the cause is not direct- but maybe lawyers do have a share of the blame for the fact that medical malpractice occurs at such an alarming rate. On May 5th as I was reading the study from Johns Hopkins I received an email on a national list serve imploring people to call into NPR. Apparently, NPR was covering the story that medical malpractice is the third leading cause of death in the United States. The frantic plea in the email to call NPR was because people were calling in to the radio show saying that they blamed the plaintiff lawyers for the medical malpractice crisis because, according to one caller, they demand that medical malpractice settlements remain confidential. The argument articulated was that the same medical errors occur repeatedly because of confidential settlements. One caller stated, “They operate in the dark behind closed doors. All claims should be public.” Another caller expressed exasperation because the legal system protects the doctors and lawyers and not the public.
I think there is a lot of truth to that position. I’ve been doing this work for so long that I rarely see anything really new. When I get a case against the same hospital or same doctor for the same horrific injury it makes me feel like I have in some way failed. The medical malpractice cases that I see with increasing frequency are total system failures. The core reason the recurrent and tragic event occurred is the pressures of profit motives that lead to a focus on quantity of care over quality of care.
So here’s a question- how many of us really think about the impact of the request for confidentiality? How many of us even negotiate the confidentiality request as a condition of settlement? My experience is that I am told it is mandatory- not a negotiable term. That is simply not true. I recognize that there are times when it is in the client’s best interest to keep a settlement confidential. However, I would suggest that we specifically negotiate in detail what is to be kept confidential. For example, the names of the parties and the amount of the settlement may remain secret to protect our clients. But if part of our job is to serve the public, the facts of the case and why it occurred should be available to the general public.
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