The medical malpractice claims came in 2020 in a staggering wave. Seventeen families alleged that Dr. Yvon Baribeau was responsible for grievous injuries to their loved ones over a six-year period.
The surgeon swiftly settled all the claims out of court. But families received money only after agreeing to an ironclad condition: They could never publicly discuss the harm Baribeau allegedly caused or that any settlement was reached, including what they received.
Although the number of claims was extraordinary, Baribeau appeared to be following a familiar — and increasingly controversial — strategy among physicians accused of malpractice: keep lawsuits from being filed in court where they become public, and, if settlements are necessary, make sure alleged victims sign nondisclosure agreements to prevent them from discussing it publicly.
Baribeau, a veteran cardiothoracic surgeon at Catholic Medical Center in Manchester, N.H., who retired in 2019 after years of complaints by colleagues, insisted he was only behaving pragmatically when he settled the claims. He declined to address the confidentiality provisions.
“These claims were never filed in court as lawsuits, and I consented to settle them all together, without admitting any fault or wrongdoing, for one reason only — to avoid lengthy and protracted litigation in my retirement,” he said in a statement to the Globe.
Given how often doctors insist on secrecy, say national experts on malpractice claims, the public often never learns about allegations of wrongdoing.
“The public has an interest in knowing if there are unsafe doctors out there,” said Dr. William Sage, a professor of law and medicine at the University of Texas Austin. “When it comes to light years later, it looks like somebody was covering it up.”
Sage co-authored a 2015 study that found roughly nine in 10 settlements in a Texas academic hospital system contained nondisclosure clauses.
Some law firms, however, refuse to accept settlements muzzling victims.
“Hiding settlements with binding confidentiality provisions protects only the medical provider at fault,” said Bill Thompson, a lawyer at Boston-based Lubin & Meyer. “That does a tremendous disservice to the patient and the public.”
Baribeau settled a total of 21 malpractice claims and lawsuits from his quarter-century career at CMC. He declined to say how much he or his insurer paid, and the hospital, which also negotiated Baribeau-related claims, won’t discuss them.
The 17 most recent claims were brought by the Manchester law firm headed by Mark A. Abramson, one of the best-known malpractice lawyers in New Hampshire. His firm informed the hospital in a 2018 letter that it represented multiple families of Baribeau patients; later, the firm demanded compensation in confidential correspondence that carried the threat of litigation.
Like similar confidentiality clauses in settlements of sexual abuse claims against clergy and disgraced celebrities such as Harvey Weinstein, such requirements in malpractice settlements are tantamount to buying victims’ silence, according to critics.
The provisions also reflect the complicated, and self-interested, role often played by lawyers such as Abramson.
By several accounts, it was his firm’s first letter to CMC that seemed to jolt hospital officials into removing Baribeau from the operating room.
Abramson went along with the hospital’s and Baribeau’s insistence on confidentiality provisions even though he acknowledged to the Globe that it is “against public policy to keep secrets.” He said he took some “blame” for the prevalence of nondisclosure orders in New Hampshire; he began agreeing to them decades ago, he explained, and now they are almost expected by hospitals and physicians. Hospitals typically negotiate settlement amounts and then, at the very end, he said, insist on confidentiality as a condition for payment. The lawyer’s fee is typically a percentage of that payout.
Several of Abramson’s clients expressed openness to discussing Baribeau’s alleged botched care with the Globe but balked after consulting the law firm. Abramson told the Globe he was afraid the hospital might try to claw back settlements, although several legal experts described that as unlikely.
“CMC is very unhappy,” Abramson said. “They are not as embarrassed as they should be.”
Abramson’s firm has a major stake in preserving the settlements. Malpractice lawyers typically work on contingency and receive about a third of settlements or jury awards if successful.
Several plaintiffs’ lawyers defended confidentiality provisions, as long as plaintiffs agree to them. They said their first duty is to clients, many of whom would rather get compensated than take a case to trial, where painful details of their medical history may be aired and the verdict left to the uncertainty of a jury.
But Dr. Marty Makary, a surgeon and public policy researcher at Johns Hopkins University who writes about patient safety, said keeping settlements secret can make it harder for people grieving to move on.
“When somebody has lost a family member to a catastrophic preventable error, they’re shaken up, vulnerable,” he said. “Hospitals rush to have them sign settlements, but people may not fully grasp what they’re agreeing to or realize that talking about medical errors is part of the healing process.”
Rebecca Ostriker, Deirdre Fernandes, and Liz Kowalczyk of the Globe staff also contributed to this report.
Jonathan Saltzman can be reached at firstname.lastname@example.org.