The Use of Confidentiality Agreements in Medical Malpractice Cases

Last month, WSOC-TV did an investigation piece on the use of confidentiality agreements in medical malpractice cases. The piece highlighted the case of a woman who underwent a partial hysterectomy in Elkin, North Carolina 20 years ago. During that surgery, a surgical sponge was left in her body. The woman knew something was wrong, but when she returned to the doctor, he was unable to determine what the problem was. Six months later, the woman visited another doctor who took an abdominal X-ray which revealed the surgical sponge inside the woman’s body.

The second doctor who found the surgical sponge on the X-ray referred the woman back to her original surgeon, telling her she had an “abdominal mass” and that she needed “emergency surgery.” The woman says that she was never told by the original surgeon about the surgical sponge that was left in her body and the papers she signed prior to surgery referred to a “mass.”

The woman took her case to trial, but the jury was deadlocked at 6-6. The woman had had a previous surgery at another hospital, and some jurors felt they could not determine which surgery resulted in the retained surgical sponge. After the deadlock outcome, the woman accepted a settlement from the hospital which included agreeing to a confidentiality agreement.

Although the woman cannot talk about her settlement with the hospital, she is speaking up now in an attempt to change North Carolina laws which allow confidentiality agreements in medical malpractice cases. She feels such confidentiality agreements serve to protect healthcare providers and keep information from the public.

One lawyer and senator in the Durham area is working on a bill to change the current law. In South Carolina, Florida and California, the use of confidentiality agreements is either banned or limited in federal courts and some state matters. The bill that the Durham senator is working on would be similar to these bans or limitations and leave the decision of using a confidentiality agreement up to a judge. A judge would be able to weigh the balance between public information and the need for secrecy or privacy.

This is not the first time that the Durham senator has discussed introducing a bill that would limit confidentiality agreements. In 2013, the senator spoke of sponsoring a bill that would do just that in an effort to “protect our families.” The bill that was later introduced during that session limited confidentiality agreements only in claims involving public hazards and was not passed into law.

The concern with using confidentiality agreements in personal injury cases, including medical malpractice cases, is that by keeping the details of these cases secret, the public is limited in the information they have to keep themselves and their families safe. The average health care provider, on the other hand, is motivated to limit this information out of concern for their reputation. According to legal experts, most cases end in settlement with a confidentiality agreement.

Leaving a surgical sponge, or other foreign object, in a body after surgery seems like it should be a rare mistake, but a hospital safety advocate group estimates that it occurs in one out of every 5,500 surgeries. A 2012 study of surgeries in the United States conducted by researchers at Johns Hopkins found that a foreign object is left in a patient’s body 39 times a week. Even North Carolina law treats this type of medical malpractice differently. Most medical malpractice cases have a heightened pleading requirement. G.S. 1A-1 Rule 9(j) requires that a medical malpractice pleading be “reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care.” However, this rule does not apply when “[t]he pleading alleges facts establishing negligence under the existing common-law doctrine of res ipsa loquitur.”

According to the North Carolina Supreme Court, “res ipsa loquitur claims are normally based on facts that permit an inference of [the] defendant's negligence.” (Anderson v. Assimos 2002)  The North Carolina Court of Appeals explained in a later case that “res ipsa loquitur applies in ‘situations where the facts or circumstances accompanying an injury by their very nature raise a presumption of negligence on the part of [a] defendant.’” (Snipes v. Warren 2007)

There are two situations which the court of appeals has recognized when properly applying the doctrine of res ipsa loquitur and one of those is “injuries resulting from surgical instruments or other foreign objects left in the body following surgery.”  (Griggs v. Lester 1991) Professionals agree that this type of mistake should never happen. This makes sense considering that the facts on which res ipsa loquitur claims are based “permit an inference of [the] defendant's negligence.”

Knowledge of these types of mistakes especially can be argued to help the public keep themselves and their families safe. However, in August, the federal government stopped publicly reporting some mistakes involving retained foreign objects. Although the government began reporting these mistakes again just one month later, some people were concerned that the reporting stopped at all.

One of those people concerned was the woman who underwent the partial hysterectomy in Elkin 20 years ago. She wishes that she had had access to this type of information before her surgery. Now, she hopes that North Carolina law changes to limit the use of confidentiality agreements in cases such as hers so that healthcare providers will be held accountable for these types of mistakes.

If you have been injured by an act of medical malpractice, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.