Confidentiality Clauses Are Killing Patients

Eliminating them is the lowest-hanging fruit in the patient safety movement

by Charles Pilcher, MD
November 15, 2024

Our most egregious mistakes in medicine often become lawsuits. A common denominator of those lawsuits is that they should prevent these situations from happening to another patient. However, the worst of these cases are settled pre-trial and almost all of those settlements contain a confidentiality or non-disclosure agreement (NDA)opens in a new tab or window, also known as a "gag order." No one can talk about it. No one learns anything. We bury the learnings and bury the next patient.

But we can learn from these events by telling the stories -- what happened, why, and what we should learn from them. The stories can be told anonymously and with no mention of settlement amounts. No blame and shame, just learnings.

Stories have been the most memorable source of learning for millennia. They remain"the brain's preferred unit of learning -- and the most powerful tool of persuasion." Without learning from these stories, we will continue to repeat our mistakes. Patient safety will not improve.

Lawsuits Do Not Improve Quality

Assuring that mistakes are not repeated should be our number one goal. Several studies have shown that lawsuit do not improve quality of care. In fact, I'm not sure our tort system of attorneys, medical malpractice insurers, or those being sued has ever considered that preventing medical error should be one of their goals. Why? Because each party has a different goal -- and it's not patient safety. The irony for insurers is that their greatest opportunity for cost savings would be to eliminate medical error in the first place.

https://www.medpagetoday.com/opinion/second-opinions/112920?xid=nl_secondopinion_2024-11-17&mh=8cd4012dca4961126d1dcdcbfbe83e79