Med-Mal Settlement Hinges on No Confidentiality Clause, Meeting with Doc
Elizabeth Trotter requested a genetic screening test during her first pregnancy in 2016 from her provider, OB-GYN Services, Inc in Norwich, Connecticut. She was told her test came back with no concerns detected and soon after she and her husband welcomed a healthy baby into the world. However, her second child, Madelyn, was born the following year with Cystic Fibrosis. Mrs. Trotter returned to her doctors to inquire how her daughter could have Cystic Fibrosis if the genetic screening test had been clear. The physicians acknowledged that she did indeed ask for the test, but it was never actually ordered or performed. The family sued on behalf of their daughter Madelyn who faces a shortened life span and a mountain of medical bills.
The defendant physicians asked for a confidentiality agreement with the settlement proposal, which Mrs. Trotter and her husband refused; they wanted to be able to freely talk about the case, so this type of mistake is not repeated. They also wanted to meet with the doctor to discuss what happened and corrective steps that had been taken. The plaintiff's counsel told the defense these conditions had to be part of the settlement or they would proceed to trial. The defense settled for full policy value ($2M) without a confidentiality clause and the physician did meet with the family via a Zoom during which he apologized to the family and reviewed corrective steps. Here is the story.
At Sorry Works, we've talked about this topic for years, and even developed an extensive report on the topic. In light of the growing disclosure movement and overall push for ethics and transparency in medicine, confidentiality agreements are so old-school (and not in a good way). These dinosaurs need to go, and physicians, insurers, and defense attorneys need to understand the sun will still rise the next morning. Let's face the facts...most patients and families don't have the means, expertise, or even the interest to publicly tell their story. Many families don't want the exposure, public judgement, or have to listen to investment ideas and loan requests from family and friends. Conversely, even if a family violates a confidentiality order what would your hospital or nursing home actually do about it? How would explain to the judge that a family is doing a bad thing by going public with your mistake? Is there a judge alive today who would honestly enforce your confidentiality agreement? No, the judge would probably give the family a medal. If medicine is going to become a truly ethical profession, confidentiality agreements must be eliminated, and doctors need to understand it’s OK.
Need more help thinking outside the box? Sorry Works! offers litigation and risk consulting for acute and long-term healthcare organization, insurers, and law firms. Give us a call at 618-559-8168 or e-mail us at doug@sorryworks.net.
Sincerely,
- Doug
Doug Wojcieszak
Founder and President, Sorry Works, a 501c3 non-profit organization
618-559-8168 (direct dial)
doug@sorryworks.net