Lessons Hard To Learn If State Requires Secrecy In Medical Malpractice Cases

Originally Published Pittsburgh Post-Gazette (PA); October 27, 1993; Section: NATIONAL; Edition: SOONER; Page: A-8

Steve Twedt, Post-Gazette Staff Writer

When a catastrophic medication error occurs in a U.S. hospital, the likelihood of it becoming public knowledge is small.

In Pennsylvania, the chances are even smaller because the state agency that funds large medical malpractice settlements requires that victims and their families agree to a strict “no-publicity” clause. An example:

In August 1991, producers for the ABC newsmagazine show “20/20” were following up local news coverage about three unusual overdose deaths at St. Clair Memorial Hospital, two of them the result of medication errors, the third a still-unsolved murder by massive insulin overdose.

One of ABC’s calls was to Dolly Wolf, whose husband Ed Wolf Jr. had died from an accidental lidocaine overdose at the Mt. Lebanon hospital. She was at first reluctant to talk, but thought it might help others.

“It’s a difficult thing, even now,” she said during an interview at her Bridgeville home.

“But if people are made aware, I think it should be known what happened. Then I’d think Ed didn’t die in vain, if it can help someone else.” She agreed to talk to ABC. Even St. Clair officials said they wouldn’t object, as long as Wolf abided by their June 1991 settlement agreement that she not criticize the hospital or divulge the settlement terms.

Then, the day before the ABC crew was to fly into Pittsburgh, their interview collapsed. The reason: The Medical Professional Liability Catastrophe Loss Fund, which administers Pennsylvania’s medical liability insurance program, threatened to void the settlement if Wolf went through with the interview. It didn’t matter if she talked about the settlement terms or not.

“If you or your client discuss this case with the media, you will effectively violate the no-publicity clause of the CAT Fund Settlement Release” and “no payment will be made,” wrote state medical malpractice claims examiner Michael J. Stack III in a letter to Wolf’s attorney, Dr. Cyril H. Wecht. A copy of the Oct. 15, 1991 letter was provided to the Post-Gazette by Wecht. Wolf either had to cancel the interview or risk the money due her from the settlement on her husband’s death. On Wecht’s advice, she canceled. “If it had just been me, I would have been willing to roll the dice. Because I was sure we would ultimately prevail, and prevail with interest,” said Wecht, who calls the no-publicity clause “a form of blackmail.” Wecht said he feels ethically bound not to disclose the settlement terms.

But, after months of stories about the accident in various local media, “how could they legitimately prevent someone from talking about something which is known?” he asked. “I was confident then and I’m confident now that they can’t.”

When the medical malpractice fund’s no-publicity clause was challenged in court last year, its lawyers successfully argued that it is critical to getting physicians to agree to what fund officials believe are private agreements. “Any settlement is an agreement that comes as a result of negotiation and that is one of the elements of the release which we negotiate,” said B. Craig Black, acting chief counsel for the fund. “We feel it is a very integral part of the agreement.” But Pennsylvania’s no-publicity edict also keeps details of the state’s worst medication errors from public scrutiny.

During its investigation of medication errors, the Post-Gazette contacted families across Pennsylvania who had lost loved ones due to such errors. Leon Sosnoskie of Middletown, Dauphin County, agreed last September to talk about his 3-year-old son Michael, who died following a medication error at Hershey Medical Center in 1989. “Just let me check with my attorney.” A week later, the attorney called to say the Sosnoskie family would not meet with the reporter “because of the confidentiality clause.”

The Post-Gazette also reached families of two of three newborn children killed at Philadelphia’s Albert Einstein Medical Center in 1990 after a pharmacy dispensing error resulted in their IV lines being flushed with potassium chloride instead of dextrose solution.

Joseph and Carmen Rodriguez, parents of 3-month-old George, had talked publicly about their loss immediately after their son’s death and said they would be willing to be interviewed again. But their Philadelphia attorney, Steve Hurvitz, said no.

“The bottom line is that you can basically infer that something happened between the time of those interviews and now,” said Hurvitz. Thomas Yorko, the Philadelphia attorney representing the family of 15-day- old Rayna S. Williams, echoed Hurvitz’s worry.

“We could be putting them in jeopardy by talking about this. They could end up losing money,” he said. “I’m their attorney. I must look out for their best interests after resolution of the issue. The broader issue is, what is good for the public? The more refined issue is how they will recover, and what would put that in jeopardy?”

The executive-branch agency that strikes such fear among plaintiffs’ attorneys was started in 1975 to provide reasonably priced liability insurance to health care providers and to make it easier for injured patients to settle claims quickly. Its purpose is to cover medical malpractice settlements in excess of $200,000, up to $1 million for any one case. The extra layer of coverage is funded by an annual surcharge on all Pennsylvania doctors based on their malpractice premiums. In 1991 alone, the fund paid $150 million in claims for some 350 cases. But as the executive state agency authorizes payments for hospital mishaps, it also extracts a promise to never discuss the case publicly.

One effect is that Pennsylvania hospitals’ mistakes often stay hidden, along with any lessons that could be learned from those mistakes. Jerry Meyers, a Downtown malpractice attorney, said his experience shows how valuable those lessons may be. His firm represented the family of Duquesne University honors student Karen Tirimacco of Washington County. She suffered permanent brain damage at Mercy Hospital in 1976 when her respirator was inadvertently disconnected. Two years later — amid much local publicity — the two sides agreed to an out-of-court settlement.

“I was talking to a respiratory therapist in 1978 who said that because of the publicity of that case there were at least two hospitals that changed their policy about (respirator) keys,” Meyers said. “Who knows how many other hospitals were impacted by that?” Said Wecht: “If you can’t discuss these cases then you’re missing a great opportunity to educate everybody, and you’re denying the possibility of avoiding such a similar catastrophic event.”

The trend among many other states has been to adopt laws that make secrecy the exception, not the rule. According to the Association of Trial Lawyers of America, 15 states have either enacted legislation or adopted or proposed court rules to restrict secrecy agreements. But Pennsylvania remains steadfast. Said Meyers: “If everyone continues to be polite about this secrecy issue, the secrecy issue is never going to go away.”

All articles in this blog are the collaborative effort of attorneys Jerry Meyers, Brendan Lupetin, and Gregory Unatin.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

What are you looking for?