Just as gag orders conceal the activities of sexual predators, they are routinely used to bury instances of poor patient care.
Typically it happens like this: The family of a patient who was harmed or killed by a medical error negotiates a monetary settlement with a health care provider.
Just before the deal is signed, the provider’s attorneys insist on a nondisclosure agreement (NDA) that bars the family from saying anything to anyone about what happened. Ever.
Often the distraught family agrees, afraid that otherwise they might wait longer for a payout or walk away with much less.
That scenario apparently played out over and over in the case of New Hampshire heart surgeon Yvon Baribeau, M.D., whose chilling lapses were described in a Boston Globe Spotlight Team series last September. Baribeau was the subject of 21 malpractice settlements, 14 of which involved a death, before he retired in 2019.
For decades, the public was kept in the dark. The state’s medical board never disclosed the settlements, and the hospital where he practiced, Catholic Medical Center in Manchester, failed to act to protect patients.
To tell the story, Globe reporters drew on confidential documents and interviews with 40 current and former hospital staff members. Yet “the full harm” could not be tallied because grieving families often signed NDAs, they wrote. Many family members told reporters “they wished they could speak about the pain of their experiences but could not.”
Refusing to be silenced
Becky and Ryan Kekula of Plymouth, Mass., told the Globe that they refused to sign an NDA in a $15 million settlement with Boston Children’s Hospital in order to preserve their ability to publicize the death of their 6-month-old son Jackson, who they said suffered a catastrophic brain injury during a sleep study.
A state health department investigation determined that hospital staff left Jackson without oxygen for more than 20 minutes, reporter Jessica Bartlett found.
Jackson had been born with a form of dwarfism, achondroplasia, which can complicate sleep issues. His parents wanted to inform the little people community of the risks associated with “what many assume is a benign procedure” and prompt hospitals to change how the tests are performed, Bartlett reported.
Her compelling story could not have been told without input from the Kekulas and their attorney, Rob Higgins, which would have been barred by an NDA.
“The (Department of Public Health) records are publicly available, but it would have been difficult to know to ask for them without doing it as part of a larger request,” Bartlett said via email. “Also I would not have understood the full breadth of the story and the lapses that occurred from only the public record documentation.”
Jackson’s medical record and Higgins’ detailed notes describing a video of the incident “were far more informative,” she added.
Providers insistent on secrecy
Even as hospitals and physicians acknowledge the value of disclosing medical errors to injured patients, the industry insists on hiding incidents from the public, fearing reputation damage or a rise in claims, plaintiffs’ attorneys say. An attorney who negotiated many of the settlements around Dr. Baribeau told the Globe that NDAs are “almost expected by hospitals and physicians” as a condition for payment.
Data appear to be scarce, however. A study of 150 malpractice settlements over five years at the University of Texas health system, which has “a declared commitment to patient safety and transparency,” found that 89% had an NDA and nearly half explicitly barred plaintiffs from discussing “the facts of the claim.”
For a journalist pursuing a story, there may be ways around an NDA. For one thing, “The case law varies from jurisdiction to jurisdiction about whether such agreements are legally enforceable and ethical,” said Patrick Malone, a Washington, D.C., attorney who has spoken out against NDAs as undercutting the goal of safer care.
Malone is a former investigative reporter for the Miami Herald whose stories about medical malfeasance made him a finalist for a Pulitzer Prize.
If the case is in a court file, a journalist can ask to have the records unsealed, Malone added.
Public financing may also be an argument for sunlight. A judge in Pennsylvania ruled that a malpractice settlement had to be made public because the payment came from a state-run insurance fund.
Of course, the easier solution would be to have fewer NDAs.
The Kekula’s attorney, Rob Higgins, said the family was “adamant from the beginning” that they would not be precluded from telling their son’s story, but that’s unusual.
For things to change, Higgins said more attorneys need to be convinced of the downsides of secrecy. He said his own firm opposes gag clauses based on the public’s right to know and their clients’ mental well-being.
“The only way reporters are going to get to write more of these stories is if lawyers are less and less willing” to sign NDAs, Higgins said.