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 

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. 

@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.

@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.

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.

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.

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

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.