Recent headlines show we should never underestimate the dark power of a secret.
In fact, some secrets become so systemic they are written into legal documents, preventing those who settle cases with wrongdoers from ever sharing information that might warn and protect others from the same harm. In the legal world, protecting these types of secrets goes by more covert names: confidentiality agreements or nondisclosure agreements.
Last month, the world discovered that for Neil Armstrong’s family, a confidentiality agreement kept fatal medical errors in the shadows for years. Files that were shared anonymously with The New York Times revealed a dramatic story of a medical malpractice settlement that prevented the family from holding Cincinnati’s Mercy Health hospital system accountable. As this issue and others come to light, we’ve seen increasing recognition of the role that confidentiality agreements can play in shielding those responsible for alleged safety issues.
In the world of personal injury and medical malpractice law, manufacturers, insurance companies, pharmaceutical makers, hospitals and others wield confidentiality agreements as a tool of their trade when settling cases with individuals who allege they were harmed by the organization’s products or procedures, or a provider’s medical error.
Confidentiality agreements embolden wrongdoers to continue operating without acknowledging and fixing the issue that caused harm in the first place. These agreements clear a path for repeat offenses, removing incentives to improve safety and blocking other consumers, employees or patients from knowing full risks.
Fortunately, there’s something more powerful than a secret: the truth.
Our firm’s longstanding policy is to never agree to confidentiality, empowering clients to talk about their experiences — if they choose — long after they’ve reached a fair settlement with a defendant. This policy makes us an outlier in our profession. We don’t pressure our clients to settle, and contrary to popular belief, we’ve found that our policy puts us in a stronger negotiating position as we advocate for change.
When individuals retain and harness the power of their truth, we all benefit. For example, by publicly sharing their experiences, one client’s family spurred law enforcement agencies to accept responsibility and change policies for high-speed chases after their 40-year-old wife and mother of two — an Everett nurse — was killed by a fleeing suspect in 2013.
Another client, a remarkable man paralyzed following multiple missed spinal fracture diagnoses over two weeks of treatment in 2013, compelled hospital administrators to collaborate with him on identifying and improving the systemic miscommunication issues that led to his tragic injury.
If those settlements had included confidentiality agreements, the same actions could have repeated unfettered, under the cover of secrecy.
Of course, not all of our clients elect to share their experiences publicly — and that’s OK, too. The important thing is that they — not a defendant — own the decision to tell their stories and pursue the safety improvements or other changes they want to achieve.
We will continue to refuse confidentiality agreements in settlements, and we call on our colleagues — and individual consumers, employees and patients everywhere — to do the same. Together, we can diffuse the potency of secrets, bring misconduct to light and harness the power of the truth.