Health care either coerces or buys silence whenever things go wrong. We wish that were illegal. Until such time as it may be, including certain language in any settlement agreement can help. The line should not be negative. It should be a positive line declaring your right to speak about issues that may or may not have been brought up in the course of the case. There could be language including, but not limiting it to, issues like crime in medicine, patient safety, sex abuse, and such like. What they really care about is that you do not identify them (and that you don’t try to sue them). Including a positive statement affirming your right to talk about health care, but without identifying them, can help reduce the extent to which you are silenced.
At the bottom of this page is a sample of what that language might look like.
Society needs Rememberers
The community needs victims of patient harm problems to stop signing gag orders or non-disclosure clauses without at least narrowing their scope.
Gag orders are routine and expected. Patients’ attorneys are used to them, include them without argument and recommend signing them. It is the standard thing to do. But signing them demolishes the responsibility that patients have to each other. A positive declaration of what you can talk about without violating their gag order keeps it from being so broad.
When you know that there are snakes in the field, you have a responsibility to try to protect the other people who are walking through the field. Even if you are not allowed to name specific snakes, the community must hear the victim’s experience, including the lessons learned from trying to get justice and/or compensation and/or suing or being sued afterwards. Otherwise the community will not develop the vocabulary and understanding necessary to protect itself.
But really, not tell the who, what and where? Not name names? Just tell the story of a sex predator working in a local hospital but not tell which hospital or which caregiver? Currently medicine has all the power and keeps it, in part, by coercing silence. At least poke a little hole in it by agreeing only to be silent about identifying them. Write in, by hand at the signing if necessary, a clause saying you are allowed to discuss issues that may or may not have come up during the course of the case.
Witnesses and rememberers are fundamental
to a safe and just society
The statistics on the amount of crime in medicine already are available, but people don’t think in statistics. They think in stories. The police are not aware of what they are doing wrong when they refer victims of crimes to state medical boards (hard to imagine graduates of police academies being no smarter than that, but it is the fact). State medical boards derail the rule of law in medicine but believe that’s okay. (When it isn’t in the interest of medicine to obey the law, medicine believes the law is wrong). So the victims get defeated and are left unable even to tell their stories. Without the stories of the victims health care workers cannot learn from their experience either, and future victims will not have that to draw on to help them deal with their tragedies. It is necessary for victims of patient harm problems to be heard.
I know of a patient who refused to sign the gag order and still got the settlement.
“If all mankind minus one, were of one opinion, and one, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.” — John Stuart Mill
Below is a suggestion of the kind of language that could be inserted in settlement agreements to ameliorate the overly broad gag orders with which other parties want to stifle you. In judicial circles there is sympathy for this. We are a country founded on free speech. Clauses making people shut up are not their favorite things.
The clauses below only are suggestions and should be tailored to your situation by your counsel. If your counsel puts off showing the final draft of the agreement to you until the signing and nothing like this is in there, even after you asked for it, if you don’t fire that lawyer and find a new one, take out a pen, handwrite this into the contract, and have copies made for the other party.
“Although [your name] is permitted to discuss issues such as patient safety but not necessarily limited to patient safety, that may have been raised in connection with this suit, the Parties agree that there shall be no discussion by [your name] that would identify [name of the caregiver or facility or whatever] in any medium with regard to testimony or evidence of [whatever the specific issue is, narrowly defined].
Just include that one. If they do not accept it, offer to include the one below as well.
“[Your name] will not discuss or mention the name of [the caregiver or facility or whatever] in any public or private forum or conversation; in any website; or in any other publication by him/her; except however, in the event [your name] is required to make disclosure as may be required by law or an order of any court or other governmental authority.”
Keep in mind that writing something in your own handwriting makes it an even more powerful tool to use against you. It is like putting your signature on every word. If you can get anyone else to do it for you, so much the better. “My handwriting is so bad. We don’t want to find ourselves debating what it says because we can’t read it. Is yours better?”