Keeping Malpractice Secret From The Public
Our courts historically are open to the public, not only in terms of giving every citizen access to the courts to solve disputes, but also in terms of giving all citizens access to what is going on in suits involving others. On any given day in Little Rock, Fort Smith or any other Arkansas city, there will be civil trials underway. In big cities like Dallas or Houston, there will be ten or more trials going on in different courts at any one time. Anyone who wants to can go into the courtroom, have a seat, and listen all they want. Every courtroom has a “gallery” area for people to do just that. Likewise, court records are open to the public. Want to find out if someone has been sued before, or divorced, or convicted of a crime? Those records are available to everyone. And that’s great, because there are things that people get sued for that the public needs to know about—like when a car is dangerous, or when a doctor is sloppy and negligent.
But the vast majority of lawsuits never get to trial—they are settled. And when a case gets settled, part of the deal is always that the defendant wants the settlement to be “confidential”. Settlement agreements in lawsuits against doctors and hospitals always have clauses requiring the plaintiff to keep their mouths shut about what happened and how much they got paid. This means that the sloppy doctor or negligent hospital doesn’t suffer any bad publicity for what they did: and it means that people thinking about going to that doctor or hospital will never find out about what they did that got them sued.
Has your doctor paid settlements in 20 malpractice suits? There would be no way for you to know—county records will reveal only that he was sued and the case against him “dismissed.” This makes it look like the cases were no good, when just the opposite may be true.
This is dangerous and unfair to people who are looking for a good surgeon, for example. You’d really want to know if the surgeon you are considering having do your gallbladder surgery had paid a bunch of claims to patients that he had hurt in the same kind of surgery. But these records are all kept secret—except from hospitals and from malpractice insurance companies.
There is a database which insurance companies and hospitals can see, but you can’t. Its called the “National Practitioner’s Data Bank” and it has records of every settlement paid on behalf of any doctor by a medical malpractice insurance company. These records can be accessed by state medical boards and by hospitals considering whether a given doctor will be allowed to get a license in another state, or whether the doctor will be allowed to do surgery at a given hospital. They can also be used to determine whether a malpractice insurance company will offer malpractice coverage to a doctor, and at what cost.
But the most important issue of all—whether you are going to let the surgeon operate on you—is not one that the National Practitioner’s Data Bank will help you with.
This is just one of many wrinkles in the law that protect doctors and their insurance companies at the expense of public safety and justice. Others include damage caps which allow doctors to pay only a fraction of the damages they cause, special rules and time limits to make it harder for you to sue them than for them to sue you, and evidence rules that protect doctors from having to testify at all on some issues. These provisions in the law are ridiculous: every American citizen is entitled to equal justice under the law. Doctors and insurance companies have succeeded in getting laws passed which make the playing field very unequal when patients try to sue their doctors.