From the College on Forensic Sciences (CFS) - 
http://www.forensic-sciences.org

Malpractice Settlement Bill Clears Key Calif. Panel

Jeff Chorney

01-15-2004


A bill that chips away at confidentiality agreements in malpractice 
settlements cleared a key Assembly committee Tuesday with 
bipartisan 
support.

AB 320 would forbid anyone regulated by a state professional board, 
including doctors, accountants and contractors, from signing 
malpractice 
settlements that include prohibitions against the plaintiff talking to 
state regulators.

The bill's author, Assemblyman Lou Correa, D-Santa Ana, Calif., said 
regulators are often stymied in their attempts to discipline 
professionals who commit egregious errors or have a history of 
screwing 
up. To protect other consumers, Correa believes people who file 
suits 
should be able to tell their stories to regulators without fearing 
they'd lose their settlements.

But medical malpractice defense lawyers warn that taking away 
such "gag 
clauses" could cause more cases to go to trial.

Although the bill would affect a variety of professional boards under 
the Department of Consumer Affairs, the main focus has been on 
doctors. 
The California Medical Board supports the measure, and the board's 
chief 
of legislation, Linda Whitney, testified at Tuesday's hearing in front 
of the Assembly Business and Professions Committee, which Correa 
chairs.

Board investigators can already get access to depositions and other 
malpractice lawsuit evidence through subpoenas. The board learns of 
lawsuits from insurance companies and doctors, which are required 
to 
report most malpractice claims. But Whitney said Correa's bill 
would 
make investigations easier.

"A lot of [discipline] cases are closed because there isn't clear and 
convincing evidence," Whitney said.

Correa went out of his way to explain that he didn't intend to do 
away 
with confidentiality clauses. But he admitted that perception could 
cause him problems as the bill moves through the Legislature.

One reason is that tort reformers and insurance interests are wary 
of 
just about anything supported by the plaintiffs bar.

Indeed, Consumer Attorneys of California President-elect Sharon 
Arkin, 
of Robinson, Calcagnie & Robinson in Newport Beach, testified in 
support 
of the bill. She later explained that Correa's idea was "very 
coherent" 
with the plaintiffs attorneys' goal of doing away with 
confidentiality 
agreements, especially in medical malpractice cases.

But as yet there is no significant opposition to the bill. In fact, no 
one voted against the bill Tuesday, and at least six members of 
Correa's 
committee asked to sign on as co-authors, including at least one 
Republican.

But Richard Carroll of Long Beach's Carroll, Kelly, Trotter, Franzen & 
McKenna, which exclusively does medical malpractice defense, 
warned of 
an increase in cases going to trial if Correa's bill passes. Carroll 
said provisions against talking to regulators are an important 
incentive 
for doctors to sign settlements.

"It's not bad for me as a lawyer, [but] I'd hate to see cases that could 
settle go to trial," Carroll said.

But Arkin disagreed. If the law is changed, agreeing to keep 
regulators 
in the dark is "simply no longer a chip that's on the table" in 
settlement talks, she said.