How public hospitals silence patients who accuse them of sometimes deadly medical errors

Hana Hooper was not yet 19 years old and had just started college when she was told she was dying.

An echocardiogram revealed that he had end-stage dilated cardiomyopathy. The diagnosis sounded incomprehensible but, in essence, it meant that it required a new heart, and fast.

To stay alive while doing so, she first had to undergo what is called “bridge to transplant” surgery, in which a device is placed in the left ventricle of the heart to help it keep pumping.

Concerned, her parents, Ali and Patrick Hooper, tried to get their daughter – the middle among three sisters who grew up in Seattle – to gain the necessary time, scheduling the surgery at one of the most prestigious and largest public hospitals in the state: the University of Washington (UW) Medical Center.

But soon after a renowned cardiac surgeon, Dr. Nahush Mokadam, performed the procedure in January 2017, it became clear that something had gone wrong. Hana suffered a stroke, went into a semi-coma and lost her sight.

Her parents later filed a lawsuit accusing Mokadam of using an unconventional surgical technique that exposed Hana to greater risk, without telling them beforehand.

They claimed that, to cover up his wrongdoing, the doctor blamed the operation's problems on an unexpected “significant amount of plaque” he found in Hana's aorta and removed her from a list of people eligible for transplant for this reason. When the family asked for a second opinion, Mokadam threatened to tell other transplant programs that Hana was not suitable for a new heart, they alleged.

“Dr. Mokadam lied in his findings about the operation and attempted to prevent Hana from accessing a life-saving heart transplant,” Hana and her parents stated in a legal notice that preceded the lawsuit.

Mokadam referred questions about the case to his attorney, who declined to comment.

The alarming allegations of misconduct by the doctor had never made the news before, and the University of Washington hoped it would never happen.

After more than two years, the case was settled in March 2023 with a $12 million payout and without either Mokadam or the university admitting wrongdoing. But the institution imposed a confidentiality clause (NDA), a legal tool widely used by large companies and wealthy celebrities so that the accusations cannot be discussed.

In this case, the silence agreement ordered the Hooper family “not to make public the names or identities of the defendants” or “any description of their conduct.”

Nondisclosure agreements can hide details of misconduct from the public, but they have come under fire in recent years for protecting wrongdoers and allowing misconduct to persist.

Critics have said they allow, for example, prominent people to hide sexual assault allegations and companies to silence potential whistleblowers. But little attention has been paid to the persistent use of these confidentiality agreements to conceal allegations of wrongdoing at taxpayer-funded institutions, including public hospitals.

Although the use of confidentiality clauses to hide accusations of malpractice is widespread, lawyers and academics question their use, especially in public hospitals, since they receive public money and are subject to transparency laws.

“The information they withhold is in the public domain, so confidentiality is nothing more than a barrier they put in front of victims,” said Paul Luvera, a retired trial lawyer in Washington state, who opposes the common use of NDA. “They are an intimidating clause.”

In 70 of the 89 agreements negotiated for the University of Washington Medical Center and other UW-affiliated hospitals and clinics from 2015 to early 2023 and obtained through public records requests by NBC News, the university included confidentiality clauses. that require victims and their families to remain silent about their claims, the compensation they were paid, or both, as a condition of the settlement.

As a result, allegations of egregious medical errors and serious misconduct at Washington's largest taxpayer-funded hospital system have been hidden from the public. Payments to resolve cases that included confidentiality requirements range from $2,000 to $14 million.

Copies of out-of-court settlements reviewed for this article, including those involving some of the largest payouts, show that the university required confidentiality in cases alleging serious harm:

  • A newborn who suffered severe brain damage because doctors allegedly failed to properly control his heart rate during delivery ($14 million).
  • A man who died after doctors allegedly misdiagnosed and inadequately treated a cancerous mass on his face and neck ($6 million).
  • A girl left with permanent cognitive disability after a doctor who operated on her face allegedly left bone fragments in her skull, causing a catastrophic stroke ($11 million).

A UW Medicine spokeswoman, Susan Gregg, commented that the allegations leading to such confidentiality agreements “may not be factually accurate.”

“Like many healthcare organizations, including publicly owned ones, the UW requests confidentiality to achieve finality and certainty when concluding a claim,” Gregg said in a statement. “Confidentiality clauses are standard industry practice.”

Law firms hired to defend the university are often instructed in their contracts that agreements “must include” confidentiality. In its NDAs, the university often presents agreements to plaintiffs as “mutual promises” of confidentiality, but also often includes the phrase “will use reasonable efforts” on top of its own promise to keep the agreement secret.

That's because, in some states, government-run hospitals that are subject to public records laws cannot legally withhold many of the key details they require their accusers to keep secret, and they know it.

Several families who settled with the University of Washington told NBC News that they were unaware that if an outside party requested the settlements, the university could not keep them secret. One complainant, Ruby Blondell, noted that she felt the university “wasn't being completely honest.”

Ruby Blondell looks at a photo of herself with her late husband, Douglas Roach, who sued the hospital before dying of cancer.

“I was surprised — I should say a little shocked — to learn that we had signed a confidentiality agreement and were not allowed to talk, but the information was there to be found,” added Blondell, a retired UW professor whose husband , Douglas Roach, died of cancer after alleging in a lawsuit that university doctors did not inform him about a critical injury detected in his lungs.

“Seeing that document in his hands with my signature bordered on creepy,” Blondell said.

Other hospitals around the country subject to public records laws routinely employ the same secrecy tactics to keep malpractice cases hidden, documents obtained through public records requests show.

The University of Kansas Hospital Authority hospital system demanded confidentiality in agreements with the families of two men who said their loved ones died after contracting bacterial infections from a defective medical device used during open-heart surgeries.

A spokesperson for the hospital system did not respond to specific questions about the cases, but said it has “robust processes and systems in place to address the small number of situations in which harm occurs while providing necessary care.”

Confidentiality clauses can also hinder accountability by curbing the publicity that often fuels investigations.