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A Bergen County, N.J., judge ruled Friday that all state records of settlements, judgments and arbitration awards in medical malpractice cases be handed to the media within the next 60 days. Judge Sybil Moses’ ruling, in North Jersey Media Group v. State of New Jersey, L-5571-03, ends at least three decades of secrecy in the handling of med-mal insurance payouts. Her order covers the last five years of records, but if it withstands review, its logic presumably could extend indefinitely into the past. The opinion also — in theory — puts an end to confidential settlements in medical malpractice cases. Med-mal insurance payouts have often remained secret as litigants hid them inside thousands of settlements filed under seal with the courts based on nondisclosure agreements between the parties. Insurance companies, however, are required under the Professional Medical Conduct Reform Act of 1989 to notify the state Board of Medical Examiners when a payout is made. The board examines the allegations leading to the payment, and determines whether the doctor in question needs to be disciplined. Only in cases of discipline are the details made public. In the vast majority of cases, the board takes no action, leaving details of the payment hidden. Moses’ ruling discloses to anyone who asks the amount of money paid to settle a case, regardless of the terms of the settlement reached by the parties. The notices give the names of the parties, the docket numbers and, in many cases, a description of how the insurance company apportioned liability for the payment, according to Robert Conroy and Steven Kern, attorneys for the Medical Society of New Jersey, the doctors’ lobbying organization. Liability apportionment — and whether a small number of physicians is responsible for rocketing insurance premiums — has been the key piece missing from the med-mal puzzle. The ruling, which Moses made from the bench, took the med-mal defense bar by surprise. “If this ruling stands it’s going to make it far more difficult to settle cases. One reason cases get settled is the ability to provide some degree of nondisclosure. If we lose that we’re going to wind up trying more cases. Which may not be a bad idea,” says Kern, of Kern, Augustine, Conroy & Schoppmann in Bridgewater. At the North Jersey Media Group in Hackensack, which owns The Record of that city and the West Paterson Herald News, corporate attorney Dina Sforza pronounced herself delighted with the ruling. Her argument — that the public’s right to inspect doctors’ discipline records trumped statutes and regulations rendering the records confidential in a common law balancing test — was relatively novel for an arena featuring confidentiality agreements and medical records. “I don’t know that this opens a Pandora’s Box … you’re talking about public documents,” she said, referring to the state Healthcare and Consumer Information Act, N.J.S.A. 45:9-22.21, which would also open some med-mal records held at the board. The act’s effective date, however, is unclear, Sforza believes, hence the suit. The Division of Consumer Affairs, which oversees the board, said it would study the suit before deciding on further action.

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