Judge rejects secrecy in med-mal settlement involving public funds.

Following the lead of at least one other judge in his state, a Pennsylvania trial court judge recently refused to seal a settlement in a medical malpractice case, citing the public's right to know that money from a state fund would be used to pay the widow of the patient who died. (Bryk v. Wilcox, No. 9254 (Pa., Luzerne Co. Com. Pleas settled Aug. 30, 2006).)

Amanda Bryk considered filing a claim after her husband, Walter, died shortly after undergoing aortic valve replacement. The surgeon allegedly failed to properly tie off sutures in Walter's heart, causing a fatal rupture.

Before she filed suit, the case was settled, with part of the settlement to be paid from the state's Medical Care Availability and Reduction of Error Fund (Mcare Fund). The fund provides excess medical malpractice coverage through the state's insurance department and is financed by fees assessed on health care providers, moving-violation surcharges, and cigarette tax monies.

Although Mcare typically includes a confidentiality provision in its settlement documents, Judge Mark Ciavarella said in an interview that he had good reason to make this settlement public.

"First, part of the settlement proceeds comes from public money, and I believe if you're using public money, the public has a right to know where their money is being spent," he said. "And second, many of the physicians during Pennsylvania's medical malpractice crisis about four years ago complained that they didn't know what was happening throughout the course of their cases because the system wasn't open enough. I believe that if they want to have public disclosure, that it should not be limited to what they want when they want it, that if you're going to have public disclosure, you should have full public disclosure."

Clifford Rieders, a trial lawyer in Williamsport, Pennsylvania, said Mcare routinely includes a confidentiality provision in settlements at the request of defendant health care providers.

"I have called [Mcare] repeatedly and asked them why they put this [provision] in; they are a state agency and cannot do it," Rieders said. "Their response has always been, 'You're right; we only put it in when the providers ask us to, and if they agree to have it come out, we'll take it out.' But they never take it out--unless the plaintiff has the gumption to say, 'I'm not settling this case without taking it out.'"

In 2004, Lackawanna County Judge Terrence Nealon ruled that a settlement involving monies from the Mcare Fund in a wrongful death action against a gynecologist was not to be sealed. (Korczakowski v. Hwan, No. 01 CV 934 (Pa., Lakawanna Co. Com. Pleas Sept. 23, 2004).) Nealon rejected arguments that defendants would balk at settling cases without a guarantee that settlements would be sealed and noted that any such risk "would not override the public's right of access to documents or information relating to the expenditure of public funds."

Rieders said that although most defendants and even some plaintiffs prefer confidential settlements, payments from a public fund are a matter of public interest.

"Almost every carrier and corporation wants confidentiality and sealing," he said. "Corporate America wants to keep its secrets. Some plaintiffs do, too--they don't want people knowing how much money they got because they don't want to be bothered by their neighbors and friends. Other people say, 'I want this to be public information. This happened to me, and anybody should be able to look at it and know that they're paying money to me.'"