Saturday, October 25, 2014
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Putting a gag on patients

Would you be alarmed if your physician used a company 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?

Putting a gag on patients

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. (AP Photo/Mike Groll)
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. (AP Photo/Mike Groll)

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.

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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.

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For Inquirer.com. Portions of this blog may also be found in the Inquirer's Sunday Health Section

Robert I. Field, Ph.D., J.D., M.P.H. Professor, School of Law & Drexel School of Public Health
Jeffrey Brenner, MD Founder of the Camden Coalition of Healthcare Providers, Medical Director of the Urban Health Institute at Cooper University Healthcare
Andy Carter President & CEO, The Hospital & Healthsystem Assoc. of Pa.
Robert B. Doherty Senior Vice President of Governmental Affairs & Public Policy American College of Physicians
David Grande, MD, MPA Assistant Professor of Medicine at the University of Pennsylvania
Tine Hansen-Turton Chief Strategy Officer of Public Health Management Corporation
Drew A. Harris, DPM, MPH Director of Health Policy Program at the Jefferson School of Population Health
Antoinette Kraus Director of the Pennsylvania Health Access Network
Laval Miller-Wilson Executive Director of the Pennsylvania Health Law Project
David B. Nash, MD, MBA Founding Dean of the Jefferson School of Population Health
Mark V. Pauly, Ph.D. Professor of Health Care Management, Business Economics and Public Policy at The Wharton School
Howard J. Peterson, MHA Managing Partner of TRG Healthcare, a national healthcare consulting firm
Donald Schwarz, MD, MPH Deputy Mayor for Health & Opportunity and Health Commissioner for the City of Philadelphia
Paula L. Stillman, MD, MBA Healthcare consultant with special expertise in population health and disease management
Elizabeth A. W. Williams Senior Vice President & Chief Communications Officer for Independence Blue Cross
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