Are Gag Orders Making Medical Errors More Common?

Word of mouth is a fundamental part of how people make decisions. You probably consider reviews and the opinions of people you trust when choosing where to eat, what to buy, and who should do your taxes. Bad reviews are just as important as good ones because they give you insight into the items and services that aren’t worth your time.

What would happen if these negative reviews weren’t legally allowed to exist? If your neighbor couldn’t tell you about an awful experience they had? It would become significantly harder to avoid genuinely terrible locations, and you would be more likely to waste time and money on things that may even hurt you. The bad or dangerous organizations would continue to receive customers, keeping them in business and putting more people at risk.

Unfortunately, that exact situation occurs in California all too often. Many victims of medical malpractice are bound by gag orders that prevent them from talking about their injuries or the healthcare workers who caused them. This may be causing medical errors to become more common by allowing negligent medical professionals to continue treating patients who know nothing about their history of mistakes. 

These gag orders may be causing harm in California and around the country. Here’s what you need to know about medical malpractice gage orders, how they work, and what you can do   

What Is a Gag Order?

A gag order is a colloquial term for a non-disclosure agreement (NDA). These agreements are often included in larger contracts but may also be independent. The purpose of a gag order is to impart legal consequences if the signer talks about subjects listed in the agreement. To be considered valid, NDAs must include:

  • The names of the parties in the agreement
  • What information is protected by the contract and any exclusions
  • How long the NDA is in effect
  • Miscellaneous provisions such as the laws applying to the contract and penalties for violating the NDA

NDAs can be used for many reasons, such as protecting trade secrets, maintaining secrecy surrounding new concepts and initiatives, and guarding a company’s reputation. The last point is the most common use of gag orders in civil lawsuits. When an organization settles a claim, it may include an NDA in the settlement contract. These NDAs typically prevent the plaintiff from talking about their losses to protect the company from damage to its reputation.

Why Are Gag Orders Involved in Medical Malpractice Settlements?

Gag orders are widespread in high-value medical malpractice settlements for several reasons. First, medical malpractice claims often lead to payments worth hundreds of thousands of dollars. Defendants often fear that should these settlements become well-known, they would spur additional lawsuits from alleged victims motivated by the large sums involved. NDAs prevent the plaintiff or other parties in the settlement from publicizing their story and putting the practice at risk of a flood of lawsuits. 

Furthermore, wrongdoer hospitals may worry that publicizing a case could alert other victims that they are not alone. Defendants often make settlement offers because they wish to avoid the potential legal consequences of going to court for a claim. If many victims emerge, at least a few will likely choose to pursue the case in court, potentially leading to significant penalties for the defendant. The NDA insulates them from this risk.

Finally, NDAs protect the medical practice’s reputation going forward. If a victim can inform others about the harm they suffered, the defendant may lose current and future patients who are rightfully worried that they may get hurt. 

Why NDAs May Be Causing More Medical Errors

Protecting an institution’s reputation by instituting a gag order in a medical malpractice settlement may make future malpractice more likely. Doctors, nurses, and other healthcare professionals are theoretically held to high standards for safety and negligence. However, worker shortages and high workloads have made it difficult to maintain these standards in recent years. This makes it less likely that mistakes are noticed and appropriate measures are taken to remove negligent medical professionals, putting patients at risk.

One way patients could theoretically help protect themselves and others would be by spreading the word that a given institution or healthcare worker harmed them. However, settlement NDAs specifically bar this kind of communication between patients to protect the organization. As a result, doctors who may be causing harm continue to operate and potentially make other mistakes. 

Patients aren’t the only ones who may be pressured to remain silent. California law requires instances of potential harm to a patient to be investigated by peer review bodies. This body is protected from having to testify or reveal anything in that meeting. However, “he prohibition relating to discovery or testimony does not apply to the statements made by a person in attendance at a meeting if that person is a party to an action.” 

If a doctor was involved in the situation, they might refuse to attend the meeting to review their potential mistake because anything they say or do may be used against them in court. The fear of justified lawsuits that makes NDAs so common may also prevent healthcare workers from honestly examining and learning from their mistakes. This attitude of protecting institutions over patients penalizes those who want to improve, encourages doctors to avoid acknowledging their mistakes, and allows medical errors to proliferate.

Get Legal Help to Pursue Truth and Justice Regarding Your Losses

Hospitals are responsible for monitoring their healthcare workers and removing those who pose a risk to patients. If you discover that a medical professional who harmed you had a history of negligence hidden by gag orders, you should hold the institution accountable for keeping them on staff. Get in touch with the expert team at the Law Offices of Michael Oran, APC, to start the process. We will help you argue your medical malpractice case and uncover the truth regarding hospital and physician negligence.

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