Regulatory reporting of malpractice settlements
Brett Snodgrass, MD.
12 18 2015
This author found the article by Sage et al., as well as the editorial by Mellow et al.1,2, to be of great interest. Although their recommendations of increased malpractice settlement reporting appear well-intentioned, and may be of some benefit in some circumstances, they may also be counterproductive and decrease patient safety. There are, however, several concerns with their proposals for increased regulatory reporting of malpractice settlements. Mello et al. write, “Claimants, therefore, may face a trade-off between obtaining the compensation to which they think they are entitled and serving their public-interest objective.”2 Such reasoning is not necessarily meritorious because claimants may think or feel that they are entitled to compensation and even believe they have a duty to the public in reporting such claims, but it does not mean that they are correct. Mello et al. further write, “Some may be unable to obtain a settlement in any amount absent a nondisclosure agreement because the defendant is unwilling to risk reputational damage.”2 Although “reputational damage [sic]” may be one reason that defendants are reluctant to settle, being harassed by regulators for providing excellent medical care is another reason why claimants may be unable to obtain a settlement agreement.3
The third and fourth types of communication about adverse events described by Mello et al. are fundamentally flawed as they are predicated on the belief that the physician has committed wrongdoing and reference no additional evidence other than the patient’s belief of physician-caused harm.2 For the third type of communication, Mello et al. recommend that there be increased regulatory reporting of malpractice settlements to medical regulators.2 The authors do not establish how reporting settlements to regulators is expected to increase patient safety, however. Reporting to The Joint Commission by hospitals usually occurs long before a malpractice case arises. The authors write that because patients may have a “perceived ethical obligation to try to prevent harm to others, settlement agreements should not restrict reporting to regulatory bodies.”2 The bias underlying the authors’ writing is that they assume that the patient is correct and that any harm resulted from an error made by the physician. Cases of patient harm where the defendant loses the malpractice case may occur despite excellent care provided by the physician.4 In contrast to the authors’ suggestion of increased safety in the future with increased regulatory reporting, one may find a decrease in patient safety secondary to malpractice.5 Since some states allow physicians to be sued for providing the national standard of care instead of the local standard of care, which is lower in quality. An increase in the harm caused to physicians by reporting a settled but frivolous malpractice case may provide further impetus for physicians to stop practicing the national standard of care and may resort to practicing the local standard of care.5 In addition, the costs of malpractice claims may make it too expensive for physicians to settle and they may vigorously defend their innocence through multiple appeals all the way to the state’s supreme court. Another reason that a state medical board probably should not be provided with information about malpractice settlements is that the state medical board may use the information to eliminate political enemies.3
The fourth type of communication scenario espoused by Mello et al. is where patients discuss the malpractice settlement with others in various places, such as social media and advocacy groups. The authors suggest that this could lead to improved patient safety. However, such an idea is again supported by the fallacious argument that the physician did something wrong. Indeed, patients can be harmed and even die without any medical error occurring.4 Thus, the idea that patients should use malpractice settlements to become online advocates for healthcare improvement is not substantiated and in some circumstances could decrease the quality of care by propagating misinformation and pandering to fear.
There are a couple of additional issues of concern in the article by Sage et al.1 First, they use the word “rationalize” without rationale to negate the valid concerns of doctors. Being concerned about being sued for providing excellent medical care is not “rationalizing,” but a reasonable cause for indignity.4,5 Sage et al. did not mention that doctors may be willing to settle to avoid the high costs of prolonged litigation. The costs can be as much as, if not more than, the total settlement in many cases.1 Second, the Texas attorney general had a good reason for not having a policy reporting claims of malpractice settlement, which is that a malpractice settlement is not the same as a medical error. Nevertheless, the authors conflated these two distinct topics throughout their manuscript by claiming that doctors “rationalize [sic]” when they should have said, “many doctors rightly defend their actions.”
In summary, with the present system of wrongful malpractice and politically motivated regulators, increased reporting of the settlements of malpractice claims may decrease the quality of care. Further evaluation of public reporting of malpractice claims is needed before recommending for or against its widespread implementation.
1. Sage WM, Jablonski JS, Thomas EJ. Use of Nondisclosure Agreements in Medical Malpractice Settlements by a Large Academic Health Care System. JAMA Intern Med. 2015;175(7):1130-1135.
2. Mello MM, Catalano JN. Should Malpractice Settlements Be Secret? JAMA Intern Med. 2015;175(7):1135-1137.
3. Mishler v. State Bd. of Med. Examiners, 849 P. 2d 291 - Nev: Supreme Court 1993. https://scholar.google.com/scholar_case?case=5539688962490335552. Accessed November 24, 2015.
4. Merenstein D. PSA screening-I finally won! JAMA Intern Med. 2015;175(1):16-17.
5. Lewis MH, Gohagan JK, Merenstein DJ. The locality rule and the physician's dilemma: local medical practices vs the national standard of care. JAMA. 2007;297(23):2633-2637.
Brett Thomas. Snodgrass, M.D.
468 N Camden Drive
Beverly Hills, California, 90210
Telephone: 1 (916) 893-1722
Fax: 1 (877) 991-6435
Conflicts of interest
No financial conflicts of interest.
No funding was provided for this work.