site stats
Welcome, register | help | log in

"Medical Justice" Patient Gag Contracts: Not Just Dumb, But Illegal

Featured in:

Asking patients to sign a contract promising to not rate their physicians could be illegal. Common sense ought to prevail.

The rise and impact of physician rating service has been a hot topic lately. In traditional media, blogosphere at large and this blog specifically.

Last year I wrote about an organization calling itself "Medical Justice". Their stated mission of "protecting physicians against frivolous lawsuits" is admirable. Unfortunately the ideas and methods are bound to sow distrust and undermine doctor patient relationship.

Anyways they are still making news, but there is a new twist:

iHealthBeat last week picked up a story from American Medical News, including an interview with Jeffrey Segal, MJ founder. There are no news in terms of how he keeps promoting his patient gag contracts, as I addressed the problems with those point by point earlier. The piece could get no quotes from any supporters other than Dr. Segal and offers no stats on how many docs bought into this idea. However the quotes from opponents (doctors and lawyers) are telling:

Alan Howard, a professor of law at St. Louis University, said there are potential problems associated with asking patients to sign the contract, especially if they are beneficiaries of publicly-funded health care programs. It is illegal to ask individuals to give up their First Amendment rights to receive goods or services paid for by the government, American Medical News reports.

...

Steve Feldman, professor of dermatology at Wake Forest University's School of Medicine in North Carolina, said it would not send a good message to patients to tell them prior to treatment that they are not allowed to post comments online about a physician's services. He said doctors should encourage feedback (Dolan, American Medical News, 6/9).

None of this of course means that libel is no longer a problem. Most online rating systems are worse than useless and physicans have very little recourse to respond to true libel, due to HIPAA confidentiality constraints. Unfortunately, some cures, like Medical Justice are worse than disease. Would you go to a doctor who wants to gag you before providing care? I would not.

I think the real way to address libel is through educating the public and adopting voluntary standards by online publishers.

Trackbacks (0)

The URI to TrackBack this entry is: http://trusted.md/trackback/56266

Comments (16)

Submitted by Jeffrey Segal (not verified) on Tue, 06/10/2008 - 2:12pm.

I was disappointed to read the blog entry entitled, "Medical Justice Patient Gag Contracts: Not Just Dumb, But Illegal."  It seems that the author, an anonymous blogger himself, decided to critique an agreement third hand.  It reminds me of the famous Norman Rockwell painting where one person whispers something to the next until the last person is shocked by the twisted tale.   First, the agreement is not a "gag contract."  There are appropriate and constructive venues for patients to discuss concerns about their care and physician's performance.  Anonymous blogs are not one of those venues.  Medical Justice at all times encourages constructive, professional and bilateral agreements between patients and physicians.  A review of the actual terms of the agreement would show it to be reason.  Unfortunately neither the author of the blog nor anyone quoted by that author has read the agreement which they have criticized.   While free speech is a cherished value in our country, that right is not absolute. Everyone knows you cannot yell fire in a crowded theatre. Schenck v. United States, 249 U.S. 47 (1919). Likewise, fighting words and obscenity are not protected. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Miller v. California, 413 U.S. 15 (1973). And to give this concept color, last year the Supreme Court ruled a school could suspend a high school student for displaying the cryptic banner “Bong Hits 4 Jesus” during an Olympic parade. Morse v. Frederick, 127 S. Ct. 2618 (2007) In the American tradition, the antidote to “offensive speech” is more speech. But, healthcare is complex. Free speech in the medical world is balanced, in tension, with privacy obligations. On that matter, Congress has spoken. HIPAA (as well as state confidentiality laws and plain old medical ethics) prevents a physician from posting the medical record to counter a negative post on a physician ratings site. As it should.  Further, defamatory speech is not protected speech. Normally, a defamed physician has a remedy in court. But, if an anonymous blogger on a physician rating site cannot be identified as a defendant, the doctor’s only choice would be to sue the Internet Service Provider (“ISP”) for posting the content. Congress foreclosed that option by granting blanket immunity to ISPs in 1996. So, the doctor would have no remedy. Mutual agreements to maintain privacy tilts the balance in favor of additional privacy (for each party) over free speech. Not to suggest that free speech is not important. It is. But so is each party’s reasonable expectation of privacy.  I agree with the anonymous blogger that, "Most online rating systems are worse than useless and Physicians have very little recourse to respond to true libel..." For that very reason Medical Justice has designed not only an agreement but a system to deal with this problem.  It is unfair to attack Medical Justice based off of inaccurate third hand information.  The irony should not be missed that an unfair attack is being made against the only entity working to protect doctors from this very abuse.  I am happy to have an informed conversation about the Medical Justice program and the legal opinions that state it is sound.  What is written above is not such a conversation.  That is the sad point.  For the record, I am, Jeffrey Segal,MD 

Submitted by hippocrates on Wed, 06/11/2008 - 11:30pm.

Dr. Segal,

Several responses to your comment:

1) The blogger in question is not anonymous. I agree sometimes things are hard to find on the site, but my identity is not a secret. I invite you to check out my public record here.

2) I called your agreements for what they appear to be. "Gag" is an accepted term to describe any restriction on speech. You might not like how the term sounds, but that's what it is.

3) The legal references in your comment are irrelevant. While they (correctly) describe many of the existing problems with anonymous reviews, these arguments do nothing to justify your solution. Specifically that your contracts may be illegal for government-pay patients and that they send a terrible message of suspicion to patients.

4) Physicians who are led to believe that these contracts, even if signed would be effective might not realize that is not so. I covered the specific problems in my earlier post and would repeat again: Even if a contract is signed, a patient can still post anything under anonymous identities. Your contracts cannot put the genie back in the bottle.

5) I grant you that there might be some details in your contracts lost in 3rd party references. But the idea of asking patients to sign such agreements sends a clear message that the doctor expects to disappoint the patient.

I am happy to take a look at your specific contract language, but I stand by my views. Restricting exchange of opinions on the Internet is futile, no matter how much you believe these opinions are unfair. The right approach is to learn to advocate in the new environment. Write your own blog, encourage your happy patients post on your behalf, etc.

Legal "solutions" to reputational problems only make these problems worse.

Yours Truly,

Dmitriy Kruglyak

Publisher, Trusted.MD Network

Submitted by t drone (not verified) on Wed, 03/04/2009 - 10:43am.

I don't have a problem at all giving my name.  I have a problem when people are stiffled for speaking up and demanding good care.  I am not an advocate of anonymous complaints.   Too many times, there are no options for those who have been treated badly, either from bad service to bad medical care.   There is a difference between defamation of character and those giving opinion or sharing personal experince.  I belive most people are inteligant enough to understand the difference.  If someone has so many complaints, shouldn't they be more concerned at understanding the cause and trying to address situation instead of trying to gag the negative comments.  There is a reason there is negative comments, this is not an accident.  Think about it. 

Submitted by Anonymous (not verified) on Mon, 03/09/2009 - 12:47pm.

I think the patient gag contracts are an excellent idea. Doctors spend years of their lives putting themselves through medical school and building up their practices and work long, hard hours for the benefit of their patients. After all they do for their patients, they should not have to endure the kind of malicious personal attacks that masquerade as ``reviews'' on these websites. If a patient does not like a doctor, I fully support their right to go to someone else, but I think it is wonderful that finally somebody stands up for the rights of doctors to defend themselves from slander. The reviews on the websites in question have the potential to do irrevocable damage to doctor's reputation and should have absolutely no place in the medical profession.

Submitted by hippocrates on Mon, 03/09/2009 - 1:04pm.

@Anonymous:

These patient gag contracts create illusion of protection, where there is none. Something like that simply would not hold up legally.

Yes, doctors should not have to be subjected to malicious attacks and have every right to defend their reputations. Unfortunately the gag contracts are designed to backfire and cause the opposite effect. Would you comment publicly under your real name? Exactly, how many doctors want to be publicly shamed for gagging their patients ?!

Physicians definitely need help with managing their online reputations. But Medical Justice is not really delivering anything useful for them. In my opinion, Medical Justice is a scam.

Submitted by Anonymous (not verified) on Mon, 03/09/2009 - 5:57pm.

Dear Hippocrates,

                                   Thank you for your feedback. I very much appreciate you taking the time to reply.

                                    The gag contracts are reasonable in my view, because what you are telling your patient in essence is this - I will do my best to help you with your health, and in return I would like you not to do anything to harm my reputation or my career. I think that is more than understandable, given the damage such attacks do to doctor's careers.

                                    I am an internist, I have been in practice for only a few months since residency completed. For the record, I have never made any of my patients sign any of these so called ``gag contracts''. But the reason I feel passionately about this subject is because, as a resident, I have had the terrible experience of being attacked by ``evaluations'' by my peers - attending physicians, nurses, interns and students - which are designed to rip your professional, and in some cases, even personal integrity. Such gratuitous hostility, all too frequently, comes from people you have helped and tried to be nice to, and the fact that such backstabbing occurs in professional environments does a grave disservice to our profession. A method to allow such attacks from occuring, are very welcome, in my view. 

Submitted by hippocrates on Mon, 03/09/2009 - 7:32pm.

@Anonymous,

You have every right to be upset about how you are being treated. I empathize with you and every physician who gets unfairly attacked online. I have always said lots of these reviews are garbage.

That is why I am speaking up about Medical Justice. They see your pain and sell a "solution" that does not solve anything, but makes the problem worse - for the reasons I outlined. This diverts physicians' attention from what they really need to do to establish their reputation on the internet - just like snake oil and placebo hurt your patients. Given the overwhelmingly negative public response to these gag contracts, they are encouraging docs to take a risky path.

The problem with these gag contracts is not legal, it is reputational. The damage is greater than the supposed benefit.

Submitted by lucia on Wed, 03/11/2009 - 2:54pm.

...I have rated doctors on these sites, but have done so using my true identity, for which I have paid dearly by becoming a "blacklisted" patient.  

I came across Dmitry's blog while searching Google for information on "Medical Justice".  For the past week, I have noticed several visits to my website  Losing Face 

from Medical Justice.  I do not know if one of the doctors named on my website has engaged Medical Justice and that is the reason for their logging hours of time reading my site, or if they have or intend to approach the doctors I have written about regarding my personal experience with them as potential customers.

 In any event, I am certain Dmitry is correct in reporting that patients look upon doctors who require them to sign such "gag" contracts as less than desirable.   Having been sued (unsuccessfully) for defamation in 2002 by a surgeon who used this heavy handed tactic in an attempt to force removal of my post-operative photographs from the Internet after several months of my respectful attempts regarding a rational explanation for my disastrous surgical results were thwarted,  I was compelled to share my experience with others.

Patients do not complain about doctors unnecessarily and although I would rather see ratings which are made using patients' real identities, I understand how this can backfire on patients through blacklisting.  People can see through reports which do not have substance.

As for the young internist who suffered the indignity of  criticism while a resident, if I understood him correctly, those "attacks" came from his peers and others within the medical profession - not patients.

Most patients are reasonable and will only resort to exposing negative experiences with their doctors when respectful attempts at communication are closed.

Submitted by Anonymous (not verified) on Sun, 03/15/2009 - 3:41pm.

Thank you for your response.

Lucia, you are right about the personal attacks from my peers. They did indeed occur from my colleagues, not patients.

But much as my personal experience with patients has been favourable, I still hold it to be possible, and problematic for patients to attack physicians frivolously without solid reason. That is why the ``ratings'' sites are so misleading, they can destroy physicians' reputation on a basis which can be very flimsy.

I feel it is much better when physicians receive feedback directly from their patients. I for one make it a point of encouraging my patients to fill up feedback forms that ask them how they perceive the strength of my practice. That way, if they have any feedback or criticism, they are able to let us know directly. But the ratings sites leave far too much room for abuse.

Submitted by lace wig (not verified) on Wed, 07/27/2011 - 5:32am.

Most patients are reasonable and will only resort to exposing negative experiences with their doctors when respectful attempts at communication are closed.

Submitted by veterinary technician salary (not verified) on Thu, 07/28/2011 - 12:57pm.

Patients do not complain about doctors unnecessarily and although I would rather see ratings which are made using patients' real identities, I understand how this can backfire on patients through blacklisting. People can see through reports which do not have substance.

Submitted by Dr Shah (not verified) on Tue, 08/16/2011 - 9:02am.

God Bless you Dr. Segal for having the courage and stamina for fighting for the truth. All doctors know that negative online reviews have become a way for disgruntled patients to trash a doctor. Just because a patient did not get what they want they go online to seek revenge. So for example if a patient is non-compliant with the treatment plan, a drug addict, if he did not get a refill, he can go online and lie as much as he wants. How about when a patient has the money but won't pay for services, again trash the doctor and lie as much as you want online - who cares. Satisfied patients very rarely bother or take the time to post positive reviews but you can bet that an angry patient will post a negative review for every stupid little reason. The best way to deal with difficult patients is to send them a Termianation Letter at the first hint of trouble.

Submitted by Lyzbeth (not verified) on Sat, 08/27/2011 - 8:04am.

Thought it wuodln't to give it a shot. I was right.

Submitted by sell wow account (not verified) on Tue, 10/04/2011 - 10:54am.

nice ............

Submitted by Patient feedback host (not verified) on Fri, 03/16/2012 - 1:29pm.

http://vitals.msnbc.msn.com/_news/2011/11/30/9124107-toothache-lawsuit-m...

It's now 4 years after Dr. Segal's comments. The case cited above demonstrates that Segal's contract was an invalid one and is still ripe for challenge regarding copyright law.

For those not wanting to read the full link: The gist of the story is that a patient challenged Segal's contract and started a class action law suit against one of the doctors using it. Later Segal 'retired' his contract and advised his Medical Justice members not to use the same contract. Although, Segal defends it here in this Blog, I'm sure he now realizes that this particular contract is going to be hard to enforce in a court of law and might even backfire on doctors continuing to use it.

Submitted by salenayoungs (not verified) on Sat, 05/12/2012 - 1:15am.

The system works by using the same 3G wireless networks that high-end smart phones use to access internet services.

If you can get a cell phone reception, you can use our wireless internet system to meet all your rural broadband

needs. However, unlike standard cell phone signals, your data would be sent through an AAA remote server. These AAA

servers manage the internet traffic faster and more efficiently than cell phone carriers.
how broadband blue works



Copyright © 2005-2013, Trusted.MD Network, Trusted.MD Privacy Policy, UBM Medica Network Privacy Policy

User login