Can a Massachusetts Injury Settlement Be Kept Confidential?

Usually yes. A confidentiality clause is an ordinary contract term, insurers ask for one in a large share of Massachusetts injury settlements, and once both sides sign it the promise is enforceable like any other promise in the release. What the clause cannot do is override a statute. Four Massachusetts situations put the terms of a settlement in front of a judge or a state agency regardless of what the parties agreed: a settlement for a minor or incompetent person submitted for approval under M.G.L. c. 231, sec. 140C1/2, a third party settlement where workers compensation was paid, which under M.G.L. c. 152, sec. 15 cannot be made “without the approval of either the board, the reviewing board, or the court in which the action has been commenced after a hearing”, a workers compensation lump sum, which under M.G.L. c. 152, sec. 48 has to be reviewed and approved before it is perfected, and a death case, where M.G.L. c. 229, sec. 2 requires the damages to be “recovered in an action of tort by the executor or administrator of the deceased”, which means an estate. Separately, a repayment obligation does not care about the clause at all: M.G.L. c. 118E, sec. 22 requires repayment to the executive office of health and human services out of the settlement, and M.G.L. c. 111, sec. 70A gives a hospital a lien on the recovery. Jim Glaser Law can be reached at (617) JIM-WINS. The line is answered 24 hours a day. The first telephone consultation is offered without charge.

Why This Question Comes Up at the Worst Possible Moment

Almost nobody asks this at the start of a case. It arrives near the end, when a release has been emailed over for signature and there is a paragraph in it that was not discussed in any phone call. Sometimes the reason is privacy: a person does not want neighbours, an employer, or an ex-spouse knowing what happened or what it was worth. Sometimes it is the opposite, and the person wants to be free to warn other people about a property, a product, or a driver.

Either way the paragraph is usually presented as standard, and it usually is standard. That is not the same as saying it is unimportant, because a confidentiality clause is one of the few terms in a release that continues to bind a person for years after the money has been spent.

What a Confidentiality Clause Actually Is

It is a contract term. It is not a court order, it is not a statute, and it does not come with a government enforcement mechanism behind it. Its force comes from the fact that both sides signed a document containing it in exchange for something, and the something is the settlement payment.

Clauses vary far more than people expect, and the variation is where the practical consequences live.

What is covered. A narrow clause covers the amount only, so the fact of a settlement can be mentioned but the figure cannot. A broad one covers the amount, the terms, the existence of the settlement, the allegations, and sometimes the underlying facts of the incident.

Who is bound. A one way clause binds only the claimant. A mutual one binds both sides, which matters more than it sounds, because the defendant is frequently the party with more to say publicly.

The carve outs. A well drafted clause lists the people the claimant may still tell. The usual list is a spouse, legal counsel, an accountant or tax preparer, and anyone a court or a taxing authority compels. A clause with no carve outs at all is worth asking about before signing, because a person who cannot tell their own accountant has a problem the moment a tax question arises.

What happens on a breach. Some clauses simply leave the other side to sue for damages, which are hard to prove. Others attach a specific number, or require repayment of some portion of the settlement. Those are the versions worth reading twice.

Answer Capsule

A Massachusetts injury settlement can generally be kept confidential by agreement, and insurers commonly ask for it, but the clause is a contract term and it cannot override a statute. Four situations put the terms into a record anyway. A settlement for a minor or incompetent person is submitted to court under M.G.L. c. 231, sec. 140C1/2, which contemplates “filing a complaint and petition for settlement approval”, so a court file exists. A third party settlement where workers compensation was paid cannot be made “without the approval of either the board, the reviewing board, or the court in which the action has been commenced after a hearing in which both the employee and the insurer have had an opportunity to be heard” under M.G.L. c. 152, sec. 15. A workers compensation lump sum is not perfected until reviewed and approved under M.G.L. c. 152, sec. 48, and sec. 48(3) voids any release in one that would bar future employment, pay or benefits due, a future compensation claim, or a wrongful discharge or breach of contract claim. A death case requires an executor or administrator under M.G.L. c. 229, sec. 2. Repayment duties run regardless of the clause: M.G.L. c. 118E, sec. 22 requires repayment of medical assistance benefits out of the settlement and creates a presumption that an unallocated settlement “applies first to the medical expenses”, and M.G.L. c. 111, sec. 70A gives a hospital a lien on the net recovery, behind the attorney’s lien.

The Four Situations Where Massachusetts Looks at the Terms Anyway

A Settlement for a Child or an Incompetent Person

M.G.L. c. 231, sec. 140C1/2 is the only section of the General Laws on settling a minor’s personal injury claim, and its first words are permissive: “The trial court may review and approve a settlement for damages because of personal injury to a minor or incompetent person in any case before the court where any party has filed a petition for settlement approval signed by all parties.”

Approval is not compelled by that sentence, and the reason lawyers seek it anyway is covered separately in court approval of a minor’s settlement in Massachusetts. What matters here is the mechanism. The second paragraph of the section says that a party to a settlement of a minor’s claim not already in suit “may initiate an action by filing a complaint and petition for settlement approval for the purpose of seeking the court’s approval of the settlement under this section.”

Filing a complaint and a petition creates a case, and a case has a docket. Massachusetts court records are generally available to the public unless a judge impounds them, and impoundment is something a party has to ask for and a judge has to allow. It is not the default, and it is not what a confidentiality clause between the parties accomplishes.

So the practical answer for a child’s case is that the parties can agree to keep quiet about the settlement, and that agreement can still sit inside a public court file.

A Third Party Settlement After Workers Compensation Was Paid

This is the one that surprises people most, and it is common. A worker is hurt on the job by somebody who is not the employer, a driver, a subcontractor, a property owner, a machine manufacturer. Workers compensation pays. The worker also brings a claim against that third party.

M.G.L. c. 152, sec. 15 governs what happens to the money, and it contains this: “Except in the case of settlement by agreement by the parties to, and during a trial of, such an action at law, no settlement by agreement shall be made with such other person without the approval of either the board, the reviewing board, or the court in which the action has been commenced after a hearing in which both the employee and the insurer have had an opportunity to be heard.”

Read that carefully, because it does more than require a signature. It requires a hearing, and it requires that the compensation insurer be heard at it. The same section then directs what the hearing decides: the court “shall inquire and make a finding as to the taking of evidence on the merits of the settlement, on the fair allocation of amounts payable to the employee and the employee’s spouse, children, parents and any other member of the employee’s family or next of kin who may have claims arising from the injury”, and on the amount the insurer is entitled to by way of reimbursement, and on the amount of excess subject to offset against future benefits.

A hearing in which the settlement amount is examined, allocated among family members, and divided with an insurer is not a private event. A confidentiality clause in that settlement still has work to do, because it governs what the parties may say afterwards, but it does not keep the number away from the insurer, the judge, or the file.

The workers compensation side of that relationship is covered in medical liens on an injury settlement in Massachusetts.

A Workers Compensation Lump Sum

A lump sum settlement of the compensation claim itself runs through M.G.L. c. 152, sec. 48. Under subsection (1), where the employee is unrepresented, where the parties want an administrative judge to set the amount payable out of the lump sum to discharge a lien, or where any party asks for judicial approval before filing, the agreement “shall not have been perfected until and unless approved by an administrative judge or administrative law judge as being in the claimant’s best interest.” In every other case it is still not perfected “until reviewed and approved as complete by a conciliator, administrative judge or administrative law judge as appropriate.”

There is no version of a Massachusetts lump sum that nobody official looks at.

Subsection (3) is the part worth knowing even if confidentiality is not the reason you came to this page, because it voids terms rather than merely disclosing them. It provides that no lump sum agreement “shall contain as part of a settlement a general or specific release that would serve as a bar to (i) employment with any employer, (ii) the receipt by the employee of any pay or benefits due him by an employer, (iii) the bringing of any future workers’ compensation claim or (iv) the bringing of any claims of wrongful discharge or breach of contract.” It then says: “All such general or specific releases shall be null and void.” And it adds a penalty: “Any employer, insurer, employer or attorney attempting to obtain such release from an employee shall be punished by a fine of ten thousand dollars.”

That is the clearest statement in Massachusetts law that what a settlement document says and what it can do are two different questions.

A Death Case

M.G.L. c. 229, sec. 2 provides that “Damages under this section shall be recovered in an action of tort by the executor or administrator of the deceased.” There is no route by which a surviving family member simply settles a Massachusetts wrongful death claim in a private capacity. Somebody has to be appointed to represent the estate, and an appointment happens in the Probate and Family Court.

The consequence for privacy is structural rather than dramatic. A death claim generates an estate, an estate generates a file, and the people entitled to the damages under the statute are identified in that process. The mechanics of the claim itself are in the Massachusetts wrongful death claim.

Repayment Obligations Do Not Care What the Clause Says

Even in a straightforward adult settlement with no court involvement, the settlement figure does not stay inside the four corners of the agreement if somebody else paid the medical bills.

M.G.L. c. 118E, sec. 22 is unambiguous about MassHealth. When a claimant “receives payment from a liability or workers’ compensation insurer or any other third party as a result of a loss”, the claimant “shall repay to the executive office of health and human services the total of medical assistance benefits provided from monies allocated in the payment, settlement or compromise of claim or action, court award or judgment for medical expenses.” Subsection (c) then closes the obvious loophole: if the settlement “fails to specify what portion” is payment of medical expenses, “there shall be a presumption that the payment, settlement or compromise of claim or action, court award or judgment applies first to the medical expenses incurred by the claimant in an amount equal to the medical assistance benefits paid.” Subsection (d) lets the executive office dispute an allocation and have a hearing on it.

Hospitals have their own route. M.G.L. c. 111, sec. 70A gives a licensed hospital, and certain other providers, a lien “for the reasonable and necessary charges of such hospital” upon “the net amount payable to such injured person, his heirs or legal representative out of the total amount of any recovery or sum had or collected or to be collected, whether by judgment or by settlement or compromise, from another person as damages on account of such injuries.” The same section says “The lien of any attorney shall have precedence over the lien created under this section”, and that the lien does not reach charges incurred after the settlement.

Neither of these is defeated by an agreement between the claimant and the insurer that neither of them will discuss the number.

Who You Can Still Tell

A confidentiality clause is a promise, and like most promises it has limits, some of which are written into the clause and some of which come from outside it.

Almost every workable clause permits disclosure to a spouse, to legal counsel, to an accountant or tax preparer, and where disclosure is required by law or by a court. If the draft in front of you does not say so, that is worth raising before signing rather than after, and it is usually not a controversial change.

Two things a private contract does not accomplish. It does not relieve a person of an obligation to respond truthfully to a lawful subpoena or a court order, and a clause that purported to do so would be asking for something no settlement can deliver. And it does not reach the reporting obligations attached to money, which is a separate subject covered in is a personal injury settlement taxable in Massachusetts.

Confidentiality and Non-Disparagement Are Not the Same Clause

They frequently sit in the same paragraph and they do different things.

Confidentiality is about facts: the amount, the terms, sometimes the existence of the settlement. Non-disparagement is about opinions and characterisations, and it is typically drafted much more broadly. A person can comply with a confidentiality clause perfectly and still breach a non-disparagement clause by leaving a review, and the reverse is also true.

If keeping the ability to say something publicly matters to you, the non-disparagement sentence is usually the one that decides it, not the confidentiality sentence. Read them separately.

What Happens If the Clause Is Broken

Enforcement is a contract action. The party claiming the breach has to establish that a breach occurred and what it cost them, which is ordinarily difficult where the clause carries no agreed figure.

Clauses that carry an agreed figure, or that require repayment of some part of the settlement, change that calculation entirely, because they replace a hard damages question with an arithmetic one. That is precisely why they are worth identifying before signing rather than discovering later. The general point that a signed release is difficult to undo is covered in reopening a claim after a settlement release in Massachusetts.

What This Article Cannot Tell You

It cannot tell you what your release says, and that document is what governs. The statutes quoted here are the outer boundaries; inside them, the terms are whatever the parties wrote.

It also cannot tell you whether confidentiality is a good trade in your case. Sometimes it is worth real money to a defendant and can be negotiated for. Sometimes agreeing to it costs a claimant nothing they wanted. That is a judgment about a specific case and a specific document, and it is the kind of thing to put in front of a lawyer before the signature rather than after it.

Frequently Asked Questions

Q: Can I be forced to sign a confidentiality clause to settle in Massachusetts?

A: Nobody can force a signature, but a defendant is generally free to make confidentiality a condition of the deal it is offering, and many do. The practical question is what it is worth. It is a term of the bargain like the number itself, and it can be negotiated, narrowed, made mutual, or given carve outs. What cannot be negotiated is a statutory requirement, so a clause promising that no court and no agency will ever see a settlement that falls under M.G.L. c. 152, sec. 15 or M.G.L. c. 231, sec. 140C1/2 is promising something the parties cannot deliver.

Q: Does a confidentiality clause mean I cannot tell my spouse or my accountant?

A: Not if the clause is drafted the way most are, because the standard carve outs cover a spouse, legal counsel, a tax preparer, and disclosure required by law. If the version in front of you contains no carve outs, that is worth raising before signing, because tax reporting on a settlement can require the number to be given to a preparer.

Q: Is a settlement for my child private in Massachusetts?

A: Not automatically, and it is the situation where people most often assume otherwise. M.G.L. c. 231, sec. 140C1/2 contemplates “filing a complaint and petition for settlement approval”, which creates a court case. Massachusetts court records are generally available to the public unless a judge impounds them, and impoundment has to be requested and allowed. A confidentiality clause binds what the parties may say; it does not by itself close a court file.

Q: I got workers compensation and I am settling with the driver who hit me. Can that be kept quiet?

A: The settlement terms cannot be kept from the compensation insurer or from the judge. M.G.L. c. 152, sec. 15 says no settlement by agreement “shall be made with such other person without the approval of either the board, the reviewing board, or the court in which the action has been commenced after a hearing in which both the employee and the insurer have had an opportunity to be heard”, and directs the court to make findings on the merits of the settlement, on the fair allocation among family members, and on the insurer’s reimbursement. A confidentiality clause can still govern what is said publicly afterwards.

Q: Does confidentiality protect me from having to repay MassHealth?

A: No. M.G.L. c. 118E, sec. 22 requires a claimant who receives payment from a liability insurer or any other third party to repay the executive office of health and human services for medical assistance benefits out of the amounts allocated to medical expenses, and if the settlement does not specify an allocation, subsection (c) creates a presumption that it “applies first to the medical expenses incurred by the claimant in an amount equal to the medical assistance benefits paid.” Hospital charges have a separate route under M.G.L. c. 111, sec. 70A, which gives a lien on the net recovery, ranking behind the attorney’s lien.

Q: Can a workers compensation lump sum include a promise that I will not work for that employer again?

A: No, and this is unusually explicit in Massachusetts. M.G.L. c. 152, sec. 48(3) provides that no lump sum agreement shall contain a release barring employment with any employer, the receipt of pay or benefits due, a future workers compensation claim, or a wrongful discharge or breach of contract claim, and it says “All such general or specific releases shall be null and void.” It adds that anyone attempting to obtain such a release from an employee “shall be punished by a fine of ten thousand dollars.”

Q: Can I still leave a bad review about the company that injured me?

A: That usually depends on a different sentence than the one you are looking at. Confidentiality clauses cover the settlement, its amount and often its terms. Non-disparagement clauses cover what you say about the other party, and they are typically drafted more broadly. The two are separate promises even when they share a paragraph, so read them separately and ask about the one that covers the thing you actually want to be free to do.

Q: What happens if I breach the clause?

A: The other side would have to bring a contract action and prove the breach and its damages, which is often hard where no figure was agreed. Where the clause specifies a sum, or requires repayment of part of the settlement, the damages question becomes arithmetic instead, which is why those versions deserve attention before signing.

Q: Is Jimmy Knows AI giving me legal advice?

A: No. This is general information about Massachusetts law, not legal advice, and reading it does not create an attorney client relationship. Whether any of it applies to your situation depends on facts that are not in this article, and above all on the wording of the document in front of you. For advice about your own settlement, speak with a lawyer.

Talking to a Lawyer

If a release has been sent to you for signature, the useful moment to ask about the confidentiality paragraph is before it is signed. Afterwards the question changes from what the term should say to what the term now requires, and those are very different conversations.

Jim Glaser Law can be reached at (617) JIM-WINS. The line is answered 24 hours a day. The first telephone consultation is offered without charge.