A bill that would prohibit “gag clauses” that forbid reports to the professional regulatory body in malpractice settlements has passed a key California legislative committee unanimously, according to an article in The Recorder. (The Recorder/Law.com, “Malpractice Settlement Bill Clears Key Calif. Panel,” by Jeff Chorney, 01-15-2004). A thorough explanation of the bill, AB 320, is contained in the Legislative Bill Analysis, available here.
The Recorder article notes that:
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.
It is difficult to conceive of a good reason to oppose this bill, which is modeled after existing California restrictions on attorney malpractice settlements. This bill covers any profession regulated by the California Department of Consumer affairs, including all health care fields, accountants, and many others. It would not bar other types of gag clauses in a malpractice settlement, such as those barring talking to the press. The Bill had no opposition in the Committee. Nonetheless, some observers fear opposition in the broader Legislature, because “tort reformers and insurance interests are wary of just about anything supported by the plaintiffs bar.”Sheesh. I’m often unhappy with the plaintiff bar’s position on contingency fees, but I refuse to believe that everything it does is suspect. Indeed, far more worrisome to me is this perspective from the defense bar (as quoted in the Recorder article):
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.
Taking that incentive off the table seems like a risk the public should take in order to assure better regulatory processes and consumer protection. All I have to say is: Can’t we all just get along for the public’s sake (for a change)?
- Having just defended the integrity of the plaintiff’s bar on this topic, I do have to say that I still smile when I see their chosen sobriquet — “Consumer Attorneys of California.” Reminds one of the bar association ULP committees that now call themselves “Consumer Protection Committees.” A rose by any other name . . . .
- I wonder if the bar should change its own rules, and prohibit an attorney from seeking such gag clauses in any malpractice settlement agreement, relating to any licensed profession, not just in lawyer malpractice cases.