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The Associated Press July 22, 2011, 1:58PM ET

Judge balks at secrecy clause in UIHC settlements

A judge has objected to a clause in settlements of medical malpractice lawsuits involving University of Iowa Hospitals and Clinics that require the plaintiffs to never divulge the amount they were paid and all other terms.

Citing concerns about the confidentiality clause, District Judge Eliza Ovrom last month initially refused to approve a $475,000 deal reached with the estate of a 57-year-old Des Moines veteran that claimed UIHC doctors mishandled a 2005 procedure, resulting in his death. Ovrom eventually approved the settlement, but she ruled the details were public under Iowa law.

The language that Ovrom questioned required the widow and children of Larry C. Brown and their attorneys not to reveal to anyone "any of the terms of the settlement of this lawsuit, including but not limited to the amount being paid to us by the parties released" unless they had written permission.

Similar clauses have appeared in UIHC medical malpractice settlements involving millions of dollars this year and generally prevent plaintiffs and their lawyers from talking about the cases after they are settled. UIHC employees also rely on the language to avoid questions about the cases.

They include a $1.5 million settlement approved in January with the children of a 78-year-old retired UI cafeteria employee who died at the hospital after her family claimed UIHC employees gave her improper blood transfusions. One by one, all 11 of Maxine Driscoll's sons and daughters agreed to the confidentiality provision as part of the settlement, records show.

Critics say the language is meant to protect UIHC and its employees from negative publicity and scrutiny. The confidentiality clauses contradict the intent of Iowa lawmakers, who approved a law that took effect in May that specifically calls settlement agreements public records, said Kathleen Richardson, executive director of the Iowa Freedom of Information Council.

"It's the legislative intent of this new section to increase transparency when a government body is being sued," Richardson said. "Any sort of language that would prohibit the release of more information would sort of seem to be counter to that legislative intent. ... The public is essentially a party, too, since the taxpayers are footing the bill for the settlement."

Attorneys say both sides can benefit from secrecy provisions, which are common in lawsuits involving the private sector. Plaintiffs can get higher settlements in exchange for agreeing to confidentiality and usually don't want their neighbors and colleagues to know how much they were paid for traumatic events such as losing a loved one, said Thomas Staack, president-elect of the Iowa Association for Justice, which represents trial lawyers.

But Ovrom questioned whether she had the legal authority to approve the confidentiality clause in the Brown case because settlements with governmental bodies are public records in Iowa. She approved the settlement three days later, but with this caution: "The confidentiality provision does not apply to the state of Iowa." The Brown estate's lawsuit claimed that UIHC employees were negligent when they performed a procedure on his heart, giving him brain damage and leading to his death.

Other state settlement agreements generally do not include confidentiality provisions or explicitly state they are public records under Iowa law.

Brian Galligan, a Des Moines attorney who represented Brown's estate, said confidentiality agreements in state-funded settlements may be useless since the state is required to make them public under the law if someone asks.

"I think that's what Judge Ovrom was balking at. Are you agreeing to confidentiality where you can't agree to it?" he said. "I guess you could argue it's not real effective language. It's just put in there. What effect it has, frankly, I don't know."

But the settlements do silence some plaintiffs and their attorneys. Nancy Kammerer of Urbandale, who along with her husband was recently awarded $1.5 million in damages and legal fees to settle a malpractice case, said earlier this month she could not comment on anything because of the confidentiality clause. The diabetic woman alleged in court that UIHC surgeons mistakenly cut her pancreas during a kidney transplant in 2008, leaving her dependent on insulin and forcing her to quit her job.

While the settlements may help protect doctors from public criticism, they do not shield them from the scrutiny of medical regulators, said Mark Bowden, executive director of the Iowa Board of Medicine. He noted the board routinely reviews malpractice claims involving state-run hospitals to determine whether to open disciplinary investigations, and physicians who are named in lawsuits also required to report that information to the board.

Richard Tucker, an Iowa City attorney who is hired to represent UIHC in malpractice cases, refused to explain why the settlements impose confidentiality on plaintiffs.

"If you do what I do, you have critics from all corners -- apparently including you," Tucker said. "That's one reason why I have long since learned in 35 years that you don't discuss in the newspapers why things are done. It's a no-win situation."

But Eric Tabor, chief of staff to Iowa Attorney General Tom Miller, whose office represents the state and approves settlements, said the provisions have been in such settlements for years without objection from plaintiffs and will continue to be included.

"The purpose of the settlement is to buy peace," he said. "If plaintiffs are able to basically try to re-litigate disputes in the press, that is not conducive to future settlements. ... Clearly it's worked well over many, many years."

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