Gag Orders...Med-Mal Fossils?
I teach high school biology as my "day job." I have a MS in Biology and MA in Bioethics, and it's a lot of fun bringing biology to life for high school kids. My students are currently learning the theory of evolution, which is my favorite topic in biology. As you likely know, fossils -- including fossil-like evidence in our DNA -- are some of the strongest evidence for Darwinian evolution.
In the world of med-mal, we have been undergoing our own evolution over the last 20 to 30 years, from deny and defend to transparency, disclosure, apology, and fair resolution. And just like Darwinian evolution, we have our own fossils in the world of med-mal that show us where we have been. However, some of our fossils are holding us back.
Behold the Gag Order. Latin name, Gaggicus horrifucus. Also known as confidentiality clauses or non-disclosure agreements, or NDAs. Spawn of those dinosaurs known as Legal Eagles, gag orders were prominent appendages of all med-mal settlements during the deny and defend period. Legal Eagles would use gag orders to threaten patients and families into silence -- and many consumers fell for the unethical ruse. Yet, even though we have evolved, the fossils known as gag orders or NDAs still persist and cause problems, kinda like wisdom teeth that need to be yanked out by a oral surgeon or an infected appendix that needs to be removed by a general surgeon. Consider the following quote from UW Medicine, home of the Collaborative, concerning the persistence of gag orders:
“Like many health care organizations, including publicly owned organizations, UW asks for confidentiality in order to achieve finality and certainty when a claim concludes,” Gregg said in a statement.
“Confidentiality clauses are a standard industry practice.”
Here is the entire blog post concerning UW Medicine and gag orders.
So, last month we happily reported that effective this week (October 1, 2024), CMS will require hospitals to show evidence of implementation of disclosure & apology programs. Here is that blog post. Expect senior living facilities, private practices, and other parts of our healthcare system to be drug into the sunlight as well. As this happy day arrives and you and your leadership are scrambling to meet this mandate, remember to see if you have any fossils in your hospital. Settlement agreements with gag order language should go extinct. Also, be on the hunt for dinosaurs such as lawyers who insist on gag orders and deny and defend principles. Send those dinosaurs off to the tar pits.
Sorry Works! is here to help both acute and long-term care/senior living professionals embrace disclosure & apology. Contact us today at 618-559-8168 or doug@sorryworks.net.
Sincerely,
- Doug
Doug Wojcieszak, MA, MS
Founder, Sorry Works!
618-559-8168 (direct dial)
doug@sorryworks.net