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January 10, 2018

USA Today spotlights hospitals' controversial use of confidential settlements

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    Critics say that hospitals' use of confidential settlements to resolve allegations of sexual assault can endanger patients' safety by preventing misconduct claims from becoming public, according to a USA Today investigation into how the Cleveland Clinic handled allegations against a physician.

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    Details on USA Today investigation

    According to the investigation, the Clinic kept Ryan Williams, a colorectal surgeon, on staff while addressing two instances involving patients who accused Williams of anal rape. Williams—who left the Clinic in 2017 for "unrelated" reasons, according to Clinic spokesperson Heather Phillips—said he "vehemently den[ies] what these women are saying."

    In the first instance, a woman filed a police report in 2008 stating that Williams had assaulted her during a rectal exam. A rape kit and other tests conducted at the time were inconclusive, and a Clinic spokesperson said Williams passed a polygraph.

    According to the Washington Post, Williams was not prosecuted in a criminal court. The woman, who had sued Williams and the Clinic, ultimately reached a confidential settlement with the Clinic. She declined to comment on the matter, citing a confidential settlement with the Clinic, according to USA Today.

    In the second instance, a woman submitted a police report in 2014 stating that Williams had assaulted her in 2009 after giving her pills that made her groggy during a hemorrhoid procedure. The woman could not press charges or sue the Clinic or Williams, USA Today reported, because the one-year statute of limitations for rape and medical malpractice had passed.

    Phillips, the Clinic spokesperson, said, "We take any allegation very seriously and act in a swift manner to address them." She added that the Clinic had involved local police in the allegations against Williams, noting that confidential settlements don't "preclude Cleveland Clinic from reporting allegations of wrongdoing to authorities," USA Today reports.

    Williams currently works at Ohio State University Wexner Medical Center, which has placed him on administrative leave. Officials at the hospital system said they were unaware of the "disturbing allegations" when they hired Williams. "The university takes these allegations of past misconduct seriously," Andrew Thomas, the medical center's chief clinical officer, said, adding, "We are actively investigating to ensure that patient safety at Ohio State was never compromised."

    The controversy around confidential settlements

    According to USA Today, the use of confidential settlements in the health care industry has drawn concerns from critics, who say the settlements' gag clauses can circumvent efforts by states, providers, and patients to hold physicians accountable.

    State law varies widely on confidential settlements, USA Today reports, with some states—such as California—barring their use in litigation involving alleged felonies, including sexual assault. By contrast, according to Michael Shroge, former associate general counsel at the Clinic, Ohio has passed laws over the past two decades establishing some of the country's broadest "protections affording confidentiality."

    Phillips said confidential agreements "brin[g] finality and closure to disputed matters." She added that "it is not only corporations that request confidentiality; individuals filing claims request confidentiality as well."

    Patrick Malone, a plaintiffs' attorney in Washington, said that hospitals often take over physicians' liability in confidential settlements to prevent medical negligence claims from being filed with the National Practitioners Data Bank. Hospitals and other health care organizations check the bank—which includes such claims, as well as disciplinary actions taken by hospitals, medical boards, and medical societies—before they hire a physician.

    Malone argued, "At least some aspect of the settlement—but not necessarily the dollar amount—should be public to make sure it's not going to happen again.

    Separately, Christian Patno, a personal injury and medical malpractice lawyer in Ohio, expressed similar concerns. "Things can occur that keep on going," Patno said. "That's the biggest concern and it prevents the impetus to make change" (Rappleye, Becker's Hospital Review, 1/5; O'Donnell, USA Today, 1/5; Bever, "To Your Health," Washington Post, 1/5).

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