Chapter

SECRECY, SETTLEMENTS, AND MEDICAL MALPRACTICE LITIGATION

Eric Helland and Gia Lee

in Confidentiality, Transparency, and the U.S. Civil Justice System

Published in print May 2012 | ISBN: 9780199914333
Published online September 2012 | e-ISBN: 9780199980185 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199914333.003.0002
SECRECY, SETTLEMENTS, AND MEDICAL MALPRACTICE LITIGATION

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This chapter provides an empirical analysis of the impact of secrecy in civil litigation on settlement values and subsequent claims. The analysis focuses on the disclosure of medical malpractice data on websites in seventeen states. These states take two fundamentally different approaches to disclosure: some report all settlements on websites; others require trial and arbitration judgments to become public, but not private settlements. The study calls into question the claim that confidential settlement bans are unworkable or would overwhelm the civil justice system. It suggests that, at least in the medical malpractice context, average settlement values would decline. It points to two reasons for such decline that are not mutually exclusive. It suggests that some defendants value secrecy and currently pay a premium to ensure settlement secrecy. In mandatory disclosure regimes, litigants will be unwilling to pay the secrecy premium, and settlement values will decline. It further suggests that mandatory disclosure will generate additional lower value litigation.

Keywords: secrecy; civil litigation; settlements; medical malpractice; civil justice system

Chapter.  6191 words.  Illustrated.

Subjects: Constitutional and Administrative Law

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