Negotiating Confidentiality Provisions in Personal Injury Cases

One of the greatest challenges we face when dealing with personal injury cases is finding a way to effectively quantify pain experienced by our clients. The following case involves a victim who sought our help after a restaurant’s negligence left her with injuries that would potentially affect her for the rest of her life. The case also shines a light on the complexities of confidentiality provisions in personal injury settlements.

A head injury alters a woman’s future forever

Elise Jones* joined her father and fiancé at a Columbus-area restaurant for a late lunch on a cold day in February. The hostess was leading them through a poorly lit area to be seated, when Elise felt her foot slip from underneath her. As she fell to the ground, her head hit hard against a brick wall, and she completely lost consciousness for a few moments.

As people scrambled to help Elise up from her fall, her father and another patron noticed an employee surreptitiously place a “wet floor” sign in the area. The patron also mentioned that he’d seen another customer slip in that same spot no more than 10 minutes earlier.

Elise was taken to a hospital for examination and was later discharged. However, she soon began to develop terrible and frequent headaches. What would begin as a dull pain, escalated into excruciating migraines. At times, Elise would be completely incapacitated—forced to remain in bed all day. She was even hospitalized for the pain on a couple of occasions.

As a consequence of the increasing and frequent headaches, Elise was unable to concentrate and her work began to suffer. She became more irritable, and this affected her relationships.

Elise consulted multiple specialists, but none could offer her a cure. She was faced with the fact that she might have to live with the headaches for the rest of her life, and, at best, could hope to manage the pain with medication.

Confronted with that knowledge, and with the knowledge that the restaurant staff knew about the slippery floor, she decided to file a lawsuit against the restaurant.

Ohio personal injury attorneys tackle the difficulties of Elise’s case

Establishing that Elise’s fall was what led to her terrible headaches would be tough, but we had a little help because this was a civil case. Elise’s doctor agreed that the headaches were consistent with trauma to the head, but could not be certain if the trauma was linked to the fall in the restaurant. Medically speaking, a physician establishing certainty needs to be 90 to 95 percent sure that the fall led to Elise’s headaches.

In civil cases, only 51 percent certainty needs to be established in order to sway a court’s decision. In other words, if you tell a jury there’s a 51 percent chance event A happened and a 49 percent chance event B happened, the jury should believe that event A happened. The fact that Elise’s painful headaches started soon after her fall strengthened her claim.

Proving the very existence of Elise’s headaches, let alone their severity would be difficult. Most doctors and pain specialists agree that pain is very difficult to measure from an objective standpoint. Those who suffer unidentifiable pain face a common problem: not only has the quality of their life been compromised, but they struggle to prove to others that their pain is real.

Finally, “slip and fall” cases are notoriously difficult because of the “open and obvious” doctrine, a general set of rules that protect premises owners from liability for injuries if the danger was “obvious” or easily detectable. In Elise’s case, the hazard wasn’t at all obvious—it was 20-25 feet from the wet entryway. Additionally, the fact that an employee quickly set up a “wet floor” sign after Elise’s fall, suggested the restaurant staff was aware of the hazard and had failed to warn their patrons sooner.

Pros and cons of confidentiality provisions

Confidentiality provisions can work in a number of ways in a civil case. Unless our client really wants to keep a case quiet, we think it benefits the community to know what the facts of the case were. After all, one of the tenets of our legal system is to bring out the truth in order to achieve justice.

From a legal standpoint, keeping those facts open to the public is useful for attorneys attempting to evaluate similar types of new cases: What verdicts are they getting? Are they being settled or going to trial? In both cases, for what amount? More often than not a settlement agreement will have a confidentiality provision. Fortunately, this can actually benefit our clients. From our perspective, since defendants almost invariably want confidentiality as part of their settlement agreement, it becomes a valuable component for us to leverage.

In Elise’s case, we arrived at a number to settle the case, but when the defendant’s attorneys drafted an agreement, they slipped in confidentiality language. We in turn asked for and received a higher settlement because of it.

While confidentiality provisions are almost always proposed by the defendant, we’ve seen a number of plaintiffs readily accept them, and it has little to do with obtaining a larger settlement. Many simply want to avoid the stigma sometimes associated with a personal injury lawsuit. As we’ve written about before, cynical political and media organizations have constructed a perception of courts clogged with “frivolous lawsuits.”

Providing for an unknown future

Ultimately, we did reach a settlement for Elise, and it did contain confidentiality provisions. Given the fact that she has a lifetime ahead of her with unknown issues and expenses related to her injury, we knew it was critical that the settlement be sufficient to help her move on in a positive direction.

The close of this case represented a way for Elise to gain a tangible measure of control. It also represented a new beginning, a chance to put something bad behind her and move on. And she’s doing just that: she married her fiancé, and is slowly getting more involved in the business she started prior to the accident.

It’s gratifying for us to help people heal emotionally, financially, or in any other way that can be achieved through the civil justice system.

*Names in this article have been changed to protect our client’s privacy.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.