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Refusal to seal malpractice suit praised

Sept. 8, 2006 - The Times Leader, Wilkes-Barre, PA

Allowing medical settlements to be filed in secret puts public at risk, says a patients rights advocate.

By TERRIE MORGAN-BESECKER

"The fact is you can find out more about a used car you are going to buy than a surgeon who is going to operate on your heart." - Paul Lyon Spokesman for The Committee For Justice For All

WILKES-BARRE - Patient rights advocates are lauding a Luzerne County judge's recent refusal to seal a medical malpractice settlement and urging jurists statewide to take the same stance.

Judge Mark Ciavarella's decision in the case of Walter Bryk bucked the standard practice within the legal community of allowing settlements of lawsuits to be filed in secret.

In medical cases, the practice puts the public at risk by shielding sub-par physicians from public disclosure of their mistakes, said Paul Lyon, spokesman for The Committee For Justice For All, a non-profit group that advocates for plaintiffs' rights in civil litigation.

"The fact is you can find out more about a used car you are going to buy than a surgeon who is going to operate on your heart," Lyon said. "Secrecy agreements 'keep information about potentially dangerous practices and procedures from the public and put people in harm's way."

Ciavarella's ruling mirrors the stance taken by Lackawanna County Judge Terrance Nealon in a 2004 case. Nealon refused to seal a settlement the family of Lucille Korczakowski, who died of ovarian cancer after a cyst went undetected for three years, reached with her physician, Jung Jang Hwan of Clarks Green.

In his ruling, Nealon said the settlement could not be kept secret because part of the money came from the state Medical Care Availability and Reduction of Error Fund, a taxpayer-subsidized fund that pays part of medical malpractice awards and settlements against physicians and other health-care providers.

The fund was established in 2002 in response to the medical profession's claims that lawsuits were driving insurance costs so high that many physicians were being forced to leave the state. Pennsylvania physicians are required to carry $1 million in liability insurance. The first $500,000 of that is covered by a private insurer, for which the physician pays a premium. The second $500,000 is covered by the M-Care fund.

The fund is financed through a surcharge applied to physicians, with certain high-risk specialties being exempt from the charge. It also receives public money through a tax on cigarettes and a surcharge on motor vehicle violations. In fiscal year 2005 the fund received $271.8 million from those two sources, according to the Pennsylvania Insurance Department.

The M-Care fund will pay part of the $3 million Walter Bryk's wife, Amanda, will receive in her settlement with Mercy Hospital of Scranton and Dr. Jeffrey Wilcox, a heart surgeon who failed to properly suture her 42-year-old husband's heart, causing a rupture that killed him, according to settlement papers filed in Luzerne County Court last week.

In refusing to seal the Bryk settlement, Ciavarella echoed Nealon's sentiment that allegations of medical malpractice are a matter of great public concern, and settlements in such cases should be open to the public.

Unfortunately, Lyon said, there are too few judges who are willing to take that position.

"Judge Ciavarella should be applauded. For too long the medical community has been allowed to hide the epidemic of medical errors by insisting on confidentiality agreements," Lyon said.

Whether there is an "epidemic" of medical errors has been a hotly contested matter of debate.

Attorneys and physicians cite studies that paint vastly different pictures regarding the number of meritorious versus frivolous malpractice suits.

Chuck Moran, a spokesman for the Pennsylvania Medical Society, said the society has not taken a position regarding publicizing settlement amounts.

Art McNulty, acting chief counsel for the Pennsylvania Insurance Department, which oversees the M-Care fund, said the department supports confidentiality agreements. The department believes such agreements play an important role in protecting both patients - some of whom don't want personal details of their lives revealed for all to see - and physicians - some of whom do not believe they were negligent, but opt to settle cases for legal reasons.

"The public may not know the ultimate reason behind why a case settled but will most likely assign the motivating factor to the medicine," McNulty said. "Were this to happen, a good doctor or health-care provider could have his reputation ruined where this may not be the real reason behind why a particular case was settled."

That argument has grown stale for Kingston attorney Joseph Quinn, a veteran malpractice attorney who has been an outspoken critic of the medical profession's claims that the courts are clogged by meritless malpractice suits.

"They want to couch it in terms of how unfair it is to physicians. Let's talk about how unfair it is for a wife to lose her husband at age 42 and for children to lose their fathers," Quinn said.

Quinn represented Amanda Bryk. Even though Ciavarella refused to seal her settlement, neither he nor Bryk could comment on her case due to a confidentiality agreement that the M-Care fund required them to sign.

"They (the medical profession) continue to say these cases don't have merit. If we are going to talk about that and debate it, people should know there are a lot of cases that have merit," Quinn said. "Let's get the facts out."

The M-Care fund paid out a total of $232.6 million in claims in calendar year 2005, but the fund does not identify the physicians or plaintiffs involved in any of its cases. Such information is confidential by law, McNulty said. The Legislature specifically made M-Care fund records exempt from the state Right to Know Act.

Clifford Rieders, a Williamsport attorney who sits on an advisory committee to the M-Care fund, said he hopes someday a member of the public or media will challenge that aspect of the law. For now, it's up to individual judges. He said he can only hope they will do "the right thing."

"I'd like to see every judge in the state say, 'I'm not going to sign off on confidentiality and secrecy,'" he said. "We have to take it out of the hands of the providers and have a good public policy emanate from the courts."