Personal Injury Law

Why in a medical malpractice case wouldn't a lawyer comment about the settlement?

By Steve Lombardi

There are several reasons lawyers won't comment on the terms of a settlement, the main one being a confidentiality clause being one term of settlement. It's not uncommon for companies who pay damages as part of a settlement to require the parties receiving the money to remain hush-hush about it. After years of litigation people injured or damaged in any case will easily agree to keep the terms confidential in order to settle the claim and get it over with and on with their lives. Society can't blame them for doing this or stop them from contracting to do so. But society should examine this issue because it maintains secret information that may protect someone else.

In the case reported in the Sioux City Journal the plaintiffs appeared to be represented by Don Beattie, a lawyer known to me. He's an excellent attorney who has developed a niche in explosion cases. His honesty is without question. His loyalty to his clients is beyond reproach. It's reported that Don refused requests from the Sioux City Journal to elaborate on the terms of settlement. His declining to answer those questions is a sure indication of a confidentiality clause in the settlement agreement. I've settled cases with confidentiality clauses. Like me I'm sure Don isn't real happy with having to remain quiet, but we do it because it's in our client's best interest and our rules of ethics require us to follow the agreed settlement terms by remaining quiet.

But, what is ethically required of lawyers or in our client's best interests isn't always in society's best interest. And that's the rub about confidentiality agreements. If I can put this in perspective consider all types of professional malpractice cases. You are a lay person without training in law, medicine, architecture, engineering or any of the other professionals that require licensing. You hire them to perform a very skilled action. Wouldn't it be useful to know if they have had professional malpractice settlements involving situations like your own? Don't you want to know if a professional has shown a lack of professional attention to details similar to the type of work you need? Well of course you do and that's where confidentiality clauses aren't allowing that information to be readily available to you.

David Grossbaum, with an office in Providence, Rhode Island and Boston, Massachusetts has a well written article on the pros and cons of such agreements and the limits of enforceability and proving damages.

Grossbaum points out that, "Courts have occasionally refused to enforce confidential settlement agreements when they frustrate important public policy goals. Brockport v. Calandra, 745 N.Y.S. 2d 662 (2002)("where a confidentiality clause subverts public policy, it is unenforceable")."

Jennifer Snyder Heis has written a primer on the subject titled Keeping Settlements Secret - Confidentiality of Settlement Agreements. So should you as an injured party to a lawsuit sign settlement documents requiring confidentiality? My advice, talk with your attorney and listen to the advice they give you. And then do what you agreed to do. One attorney told me of an instance where his 18 year old client agreed to confidentiality and then while at the mediation conference text messaged to several young friends the amount of the settlement. HELLO! Did you listen to your attorney? Being young isn't an excuse for disregarding what you agreed to do.

Full post as published by Des Moines Personal Injury Lawyer on May 21, 2008 (boomark / email).