The Law Offices of SJ Spero and Associates - Boston Professional Misconduct Lawyer

The Law Offices of
SJ Spero & Associates

Newton Office
PO Box 240
Newton, MA 02468
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Concord Office
30 Monument Square
Suite 145
Concord, MA 01742
Phone: 617-491-1200
Fax: 978-631-0795
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Boston Office
175 Federal Street
Suite 1425
Boston, MA 02110
Phone: 617-491-1200
Fax: 978-631-0795
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Confidentiality Agreement A.K.A. Gag Orders

You have started your lawsuit against the psychotherapist who engaged in significant boundary violations and caused you serious damage. The attorneys, following arduous and lengthy negotiations, have finally arrived at a dollar settlement amount satisfactory to you. But, then, the attorney for the psychiatrist (psychologist, social worker or counselor) insists that the settlement and all underlying facts related to the failed therapy must be kept confidential.

"What?" you ask in anger. "I can't talk about this with anybody? This is outrageous!"

Is it? What are the vices and advantages associated with confidentiality agreements?

It is all and well good to condemn confidentiality agreements as against public policy. As a policy matter, there are certainly valid arguments against the use of settlement provisions of this type.

You never have to accept confidentiality or secrecy in a settlement!

First, it is ALWAYS the victim's prerogative to reject a proffered settlement, with or without confidentiality, and proceed to trial. No attorney can or should enter into such a settlement, any settlement of any kind, without the client's full prior understanding of its terms and unconditional consent. This is both a matter of legal ethics and client right.

Go to the licensing board! Check with a professional society or organization!

Second, prior to even considering confidentiality, the victim always has the right to complain to a licensing board and seek disciplinary action against an offending therapist. The victim may also seek redress, where available, from professional associations or societies to which the therapist belongs. Or, the victim can inform friends, colleagues, victims' groups, legislators and the media through oral and written communications of the past abuse and the identity of the abuser.

There may be good reasons not to take one or more of these actions (e.g. potential impact on subsequent litigation, impeding settlement, possible defamation liability). Talk to your attorney about potential consequences before proceeding!

Sometimes, the settlement is not so secret anyway!

Third, there are already certain regulatory limitations, which either mandate exposure of wrongful conduct or protect disclosure of abuse in certain instances. For example, in Massachusetts, G.L. c. 112, section 5C provides:

Every insurer or risk management organization which provides professional
liability insurance to a registered physician shall report to the board any
claim or action for damages for personal injuries alleged to have been caused by
error, omission, or negligence in the performance of such physician's
professional services where such claim resulted in:

(a) A final judgment in any amount,
(b) A settlement in any amount, or
(c) A final disposition not resulting in payment on behalf of the insured.

Reports shall be filed with the board no later than thirty days following the
occurrence of any event listed in paragraph (a) , (b) , or (c) .

Such reports shall be in writing on a form prescribed by the board and shall
contain the following information:

(a) the name, address, specialty coverage, and policy number of the physician
against whom the claim is made; and
(b) name, address and age of the claimant or plaintiff; and
(c) nature and substance of the claim; and
(d) date when and place at which the claim arose; and
(e) the amounts paid, if any, and the date and manner of disposition,
judgment, settlement, or otherwise; and
(f) the date and reason for final disposition, if no judgment or
settlement; and
(g) such additional information as the board shall require. No insurer or its
agents or employees shall be liable in any cause of action arising from
reporting to the board as required in this section.

Similarly, Massachusetts. Ann. Laws ch. 112, @ 5E states:

Any registered physician who does not possess professional liability
insurance shall report to the board every settlement or arbitration award of a
claim or action for damages for death or personal injury caused by negligence,
error or omission in practice, or the unauthorized rendering of professional
services by such physician. Such report shall be made within thirty days after
any such settlement agreement has been reduced to writing thereto or thirty days
after service of such arbitration award on the parties and signed by all the
parties. Failure of the physician to comply with the provisions of this section
is an offense punishable by a fine of not more than five hundred dollars.
Knowing and intentional failure to comply with the provisions of this section,
or conspiracy or collusion not to comply with the provisions of this section, or
to hinder or impede any other person in such compliance is an offense punishable
by a fine of not less than five thousand dollars nor more than fifty thousand

Further, again in Massachusetts, under the medical malpractice statute which governs some professional abuse cases against therapists, G.L. c. 231, section 60B, the law provides:

Whenever the [medical malpractice] tribunal makes a finding, the clerk of the court shall, no later than fifteen days after such finding, send a copy of the complaint and finding to the board of registration in medicine. Upon entry of judgment, settlement, or other final disposition at trial court level, the clerk shall, no later than fifteen days after such entry, send a copy of the judgment, settlement or other final disposition, to the board of registration in medicine. The terms of such judgment, settlement, or other final disposition shall not be sealed by agreement of the parties or by any other means and shall be available for public inspection, except, however, the identity of the plaintiff may be kept confidential by the board.

Therefore, in Massachusetts, insofar as the statute concerns psychiatrists and physicians and following the initial phase of a malpractice tribunal, the Board of Registration in Medicine will be notified of the offending conduct and papers filed in Court will remain open for public inspection. This is mandatory disclosure in the malpractice litigation process designed to expose the abuse to the bright light of discipline.

There are also protections for those who are called to testify before the Board of Registration in Medicine. For example, Massachusetts G.L. c. 112, section 5 provides that, "no person . . . who provides information pursuant to this section or who assists the board at its request in any manner in discharging its duties [including obtaining information concerning settlement of malpractice actions] . . . shall be liable in any cause of action arising out of the receiving of such information or assistance."

Caution: The above discussion involves Massachusetts law. Your jurisdiction probably has different rules, regulations, procedures and/or statutes which MAY govern this area. Further, even in Massachusetts, these statutory protections are not all inclusive and do not apply to non medical abusers. Further legislation should be enacted to extend these laws to other professional fields. We should vigorously support such efforts. Always consult an attorney.

The Law Offices of SJ Spero & Associates represented victims of professional misconduct and clergy abuse across the country, including Massachusetts, Missouri, Texas and New York. Based in Boston, our local service areas include Newton, Concord, Acton, Lowell, Cambridge, Quincy, Worcester, Springfield, Pittsfield, Middlesex County, Essex County, Suffolk County, Norfolk County and Worcester County.