This week USA TODAY reported the discovery of a number of lawsuits that alleged corporate malfeasance in cases of pharmacy errors at Walgreens and CVS. Many were settled, and nearly all the settlements included confidentiality agreements.
Pharmacies have two major reasons to insist on confidential settlements. First, to avoid bad publicity in a field where public trust is important. Second, to keep potentially damaging information from plaintiff lawyers.
The problem is such agreements make it difficult to detect patterns of errors at pharmacies, though it’s in the public interest to know if they exist. And just about any corporate defendant insists on some element of confidentiality as part of the settlement terms. Though plaintiffs’ attorneys appreciate the bad public policy established by these confidentiality terms, the lawyer’s duty is to the client whose interest may well be best served by the financial terms of the settlement.
Barry Furrow, director of the health law concentration at the Drexel University College of Law, writes textbooks on health law. “There’s a whole world of research that’s very hard to do,” he says. “It is hard to find out much of anything, even if I talk to lawyers, because they can’t tell me much. It’s hard to spot patterns and see what’s going wrong.”
Walgreens disputes the assertion that it typically asks for confidentiality in settling such cases. “Rather than a strict policy,” the chain said in a written statement, “we consider each case as unique and handle it individually.” But few if any details regarding resolution of lawsuits filed against it are available to the public.
CVS, (CVS) which also answered in a written statement, said: “Confidentiality agreements are a common practice for all businesses in commercial transactions and in litigation. By including the confidentiality provision, CVS follows standard procedures typical for resolution of any liability claim.”
Walgreens was required to supply recent prescription-error data chainwide in a Tennessee federal lawsuit filed by the family of Trey Jones, a 5-year-old mistakenly given an anabolic steroid. But U.S. District Court Judge Aleta Trauger granted Walgreens’ motion for a protective order. She wrote that lawyers for Jones’ family were entitled to the information for purposes of pretrial discovery, “but not for purposes of making a publicity ‘splash’ against the defendant.”
A typical settlement includes boilerplate language such as this: Terms are “confidential and are not to be publicized, revealed, disclosed or discussed directly or indirectly with any representative of the print or electronic media, or to any professional or trade publication or organization.”
Errors are generally not made public by state pharmacy boards unless disciplinary action is taken — even in cases of death or serious injury — according to Carmen Catizone, executive director of the National Association of Boards of Pharmacy.
North Carolina is the only state that makes public all errors involving death or serious injury, though the National Association of Boards of Pharmacy has tried for 10 years to persuade other states to mandate such reporting. After significant errors such as the Givens case make news, there are demands that errors be tracked. “But once that initial outrage dies down,” Catizone says, “the issue is left to politics. Then we lose.”