After a bacterial skin infection and then pneumonia sent Veronica James’ mother, Vera, to the hospital, she seemed to be recovering. They hoped to have her back home within a month or two.
But soon after James checked in on her one February morning, things quickly spiraled. Her mother’s oxygen flow was cut off, and she fell into a coma and later died — all due to hospital negligence, James says.
As part of an eventual settlement out of court, the New Jersey hospital tried to get her to agree to a gag clause, which would have prevented her from speaking out, James told MarketWatch.
Instead, James added a provision that she says allows her to speak about the experience. She’s since become a patient advocate, starting a bill to end gag clauses in her home state of New Jersey. (The hospital did not return MarketWatch’s request for comment.)
Gag clauses, also called nondisclosure agreements, are “why you don’t hear about things like this in the news,” James says. “It’s hush money, basically.”
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Disgraced USA Gymnastics doctor Larry Nassar’s sentencing hearing, which concluded last week, was an unusually high-profile airing of misconduct by a doctor — complete with statements by 155 victims over the course of seven days.
But cases of physicians harming a patient, ranging from sexual misconduct to medical error, are often kept quiet through secret settlements, patient advocates say.
Such agreements are intended to shield doctors and medical institutions from bad publicity, but critics say they threaten public safety by keeping critical information from patients.
“It might be a botched surgery, it might be a serious infection they got in the hospital, it might be they got some kind of treatment they didn’t ask for or expect,” Lisa McGiffert, director of Consumer’s Union’s Safe Patient Project, told MarketWatch. “There’s really not a whole lot of accountability for doctors that harm patients.”
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Physician sexual misconduct certainly extends beyond Larry Nassar, though the exact reach is difficult to ascertain. A survey conducted by Women’s Health and the Rape, Abuse and Incest National Network, found that just under 30% of nearly 500 women surveyed reported experiencing sexual misconduct by a physician.
More than 2,400 doctors have been accused of sexual misconduct explicitly involving patients since 1999, though the number could be higher than 3,100, according to a sweeping investigation by The Atlanta Journal-Constitution that analyzed public records from all states.
However, because many violations never become public, “no one knows the extent of the problem,” the investigation concluded.
Ryan Williams, a colorectal surgeon for The Cleveland Clinic who was accused of anally raping two women during medical appointments, was kept on staff while the hospital reached a confidential settlement, USA Today reported earlier this month.
Settlements are also prevalent in cases of medical error, which are hard to track but could account for as much as 10% of U.S. deaths, which would make it the third-leading cause of death.
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In the early 2000s, when a neurosurgeon said Patty Skolnik’s 22-year-old son needed emergency brain surgery for a brain tumor that could kill him, Skolnik didn’t question the doctor.
But after a traumatic experience that spanned “32 months in five different hospitals in three different states,” culminating with her son being be taken off life support, Skolnik now believes the surgery was unnecessary.
After suing the doctor, she was offered a settlement with a gag clause, which would have prevented her from talking about her son’s story and the doctor and hospital involved, she said.
In other words, “‘we’ll give you this money and you shut your mouth,” Skolnik said.
But she says she was able to negotiate a settlement that allowed her to speak about those matters, just not about the monetary value of the settlement.
Settlements in malpractice claims commonly prohibit some kind of information from being shared, according to a 2015 Journal of the American Medical Association study, which looked at the 150 settlement payments made by the University of Texas medical system over the course of five years.
Settlements prevented such things as sharing a settlement’s terms and amount, that a settlement had been reached, the facts of the case, reporting to regulatory agencies and, in some rare cases, disparagement of the doctors or hospitals, the study found. (The study said that, in response to its findings, the health system stopped prohibiting reports to regulatory agencies.)
In the years since her son’s death, Skolnik has been busy advocating for patients. She helped pass legislation in her son’s name that makes it easier to look up medical professionals in Colorado, and has worked to educate consumers and train health professionals through her small business, Citizens for Patient Safety.
Other advocates have also been working to improve medical transparency in their states, but they say it’s slow going. Even information about disciplinary actions against doctors, which should be publicly available through state medical boards, is not easy to find, McGiffert said.
“You can find out about your car from Carfax, you can find out about your roofer from the Better Business Bureau — you need to be able to find out about your health care professional,” Skolnik said.