by Erica Cohen
Would you be alarmed if your physician used a company like Medical Justice to “manage” his reputation? Would you question his integrity if he slipped in with your medical intake forms a waiver that legally prohibited you from mentioning his name online?
Despite the red flags this behavior raises, this is exactly the route some physicians have taken in response to the growing number of physician review sites such as Yelp, Angie’s List, RateMDs, HealthGrades, and Vitals.
Medical Justice provided its physician clients with what is commonly referred to as a gag contract – a contract prohibiting the patient from posting commentary about the physician, his expertise, and his treatment.
While physicians have legitimate concerns, contracting patients to give up their rights may not be a rational, or even legal, method to accomplish physicians’ end goals.
Many physicians incorrectly assume that reviews are negative; however, rating sites may be beneficial. One recent study found that 88% of online doctor reviews were positive. Another study indicated that reading patient reviews boosted physician morale.
Critics argue that the contracts are unconscionable because doctors are in a position of dominance and patients do not have equal bargaining power. The contracts also may be invalid under contract law as they appear to lack consideration – the benefit that each party expects to get from a contractual deal.
Medical Justice mentions enhanced privacy as the purported consideration patients receive. However, patients should receive the highest level of confidentiality regardless. Therefore, the contracts offer patients something to which they are already entitled. A physician’s compliance with HIPAA cannot be conditioned on patient silence.
Companies also developed contracts requiring the copyright ownership transfer of anything posted by the patient about the physician to the physician. In theory, this gives doctors the ability to remove patient commentary.
Patients filed a consumer class action lawsuit against their doctors over these contractual bans. The Center for Democracy and Technology filed a complaint with the Federal Trade Commission alleging that Medical Justice engaged in deceptive and unfair business practices and that their contracts were legally unenforceable. In response, Medical Justice ceased the use of those contracts.
In addition to posing a legal issue, these contracts pose a professional ethics issue as well. The AMA medical ethics code prevents physicians from placing their financial well-being and reputation ahead of patients’ needs. Doctors also have a duty to “do no harm,” and these contracts may certainly cause patient harm.
In response to online reviews, physicians have pursued legal remedies against both patients and review websites. Additionally, to skew ratings, the companies have posted bogus positive reviews, which mislead patients.
Although doctors are rightfully concerned about their reputations, managing their public image should not be achieved by stifling legitimate commentary and information exchange. Physicians should recognize that hindering patients’ rights can ultimately hurt their practices and reputations. If a physician is worried that negative reviews will harm his reputation, he should consider why patients are dissatisfied and encourage happy patients to post positive reviews.
Physician review sites have the potential to be very powerful. However, website administrators must work to ensure that reviewers are actually patients who were treated by that particular physician. Other methods to improve the entire rating system include collecting a minimum number of comments before posting anything, limiting the commentary to subjective impressions and making it clear that is what they are, and avoiding technical details.
Public reporting is a key strategy in the effort to improve health care quality, and it can lead to better patient choices. Both physicians and patients need to adapt by using it honestly and fairly.
Erica Cohen is a third-year law student concentrating in health law at Drexel University Earle Mack School of Law. She graduated from the Scripps School of Journalism at Ohio University with a major in online journalism and minors in business and political science. Prior to attending law school, she worked for DKMS Americas, the world's largest bone marrow donor center. She currently works as a legal intern in the office of general counsel at a local hospital.