The majority of malpractice settlement agreements made by a Texas health system included clauses that prevented details about the case from being released, but there was little standardization or consistency in such provisions, according to a study published online May 11 in JAMA Internal Medicine.

Such nondisclosure provisions, while common in settlements across the United States, run contrary to greater promotion of health care transparency and improved patient safety, the study’s authors said.

Dr. William M. Sage of the University of Texas at Austin, and his colleagues, analyzed settlement agreements made by the University of Texas System from 2001 to 2002, from 2006 to 2007, and from 2009 to 2012 (JAMA Intern. Med. 2015 May 11 [ doi:10.1001/jamainternmed.2015.1035]). They chose the time frames to study the differences in settlements before, during, and after the enactment of tort reform in Texas.

In 2003, Texas amended its constitution and enacted legislation that capped noneconomic damages against physicians in medical malpractice cases at $250,000 and imposed limitations on personal-injury lawsuits.

During the study periods, the University of Texas System closed 715 malpractice claims and made 150 settlement payments. The median compensation paid by the university was $100,000, and the mean compensation was $185,372.

Excluding 20 cases involving non–University of Texas defendants and 6 minor dental injury cases, 89% of settlements (110 of 124) included nondisclosure provisions. All the nondisclosure clauses prohibited disclosure of the settlement terms and amount. The nondisclosure clauses ranged in length from 23 to 385 words. Ten of the nondisclosure clauses applied to all parties to the agreement, including the physicians and hospitals.

Of the nondisclosure provisions, 55.5% prohibited disclosure that the settlement had been reached, 46.4% prohibited disclosure of the facts of the claim, and 9.1% prohibited disclosure by the settling physicians and hospitals, as well as the plaintiff.

In addition, 2.7% of nondisclosure provisions specifically prohibited disparagement of the physicians or hospital by the claimant. Complaints to the Texas Medical Board or other regulatory bodies were prohibited in 26.4% of nondisclosure provision cases.

Researchers found that the 50 settlement agreements signed after tort reform took full effect in Texas (2009-2012) had stricter nondisclosure provisions than did the 60 signed in earlier years. Settlements made after tort reform were more likely to prohibit disclosure of the event of settlement, to prohibit disclosure of the facts of the claims, and to prohibit reporting to regulatory bodies.

The study authors noted that in response to the findings of their study, as of 2014, the University of Texas no longer restricts regulatory reporting in settlement agreements.

Nondisclosure clauses that go beyond nondisparagement, as well as restrictions on disclosing the payment amount, appear inconsistent with respect to patients and current approaches to improving the safety of medical care, noted Dr. Sage and his coauthors.

“In situations where the harm is more general or might occur again, confidential settlement of private litigation can be contrary to the public interest,” the authors wrote. “There is increasing consensus, even among early proponents of protected peer review, that greater transparency to patients and the public is necessary for safety to improve.”

The use of nondisclosure agreements should be reviewed elsewhere, the researchers suggested, including at institutions with communication-and-resolution programs.

The authors reported no conflicts of interest.

agallegos@frontlinemedcom.com

On Twitter @legal_med

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