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Can Doctors Enforce Contracts Barring Public Comments on the Care They Provide (or Fail to Provide)

This month’s ABA Journal includes an article that stunned me, and it is set out below. The gist is that some physicians are trying to use contracts to preclude patients from commenting in public media about the care they receive or do not receive. According to the article, the patient is limited by contract to filing a malpractice suit, complaining to the state regulator or telling friends (not clear what’s ok there – can you email or just whisper softly to your friends in the confines of your home). Even more surprsing to me is that, according to the article, the AMA “takes no position” on the propriety of such contracts.

Even though I am a defense/corporate lawyer and am in general sympathetic to defense-side issues, the contract described by the article is to me a stunningly bad idea, and a contract of adhesion that courts can not and should not enforce when entered into prior to the care being provided. Suppose you have cancer and need treatment asap – how in the heck can anyone claim there is room for fair bargaining in such a situation ?

The AMA not taking a position is to me no correct. I cannot imagine our ethical rules for lawyers letting us do this sort of thing. I won’t claim to be an ethics expert, but a quick flip through the rules brought caused me to focus on Illinois Rule 1.8(b. That rules specifically precludes lawyers from asking a client for rights related to publizing the facts of an engagement until the engagement is over. I presume that rule was aimed at blocking the lawyers from acquiring the rights to a sensational story as part of a retainer agreement, which is a somewhat different situation than teh doctor who is trying to avoid publicity. That said, the situations are alike in that clients cannot possibly know what is in their interest, or not, until the professional engagement is over, and so our rules block us from asking cleints to give up rights in advance. Rule 1.8(f) also is relevant as it precludes Illinois lawyers from seeking to limit our liability to our clients unless the client has separate counsel to evalaute that agreement.

I fail to see why doctors should be treated differently, especially when their mistakes actually can kill or badly injure a person. At least for civil lawyers, the worst we can usually do is to cost someone some moeny.

Comments anyone?

http://www.abajournal.com/magazine/a_prescription_for_silence/

Opening Statements A Prescription for Silence June 2009 Issue By Leslie A. Gordon

Once consumer websites began rating everything from restaurants to dog groomers, it was only a matter of time before doctors found their care and bedside manner critiqued online. As many as 40 websites, including Zagat, Angie’s List and RateMDs.com, now feature anonymous, patient-written doctor ratings. Physicians say these unpoliced sites often publish unfair accounts that can destroy professional reputations. And, because the ratings usually are anonymous, doctors argue that the “patients” rating them may really be disgruntled employees, ex-spouses or competitors. Federal and state privacy laws prohibit doctors from responding, even to legitimate posts.

Now one doctor has figured out a way to help his colleagues fight back, but his technique has left some wondering about the legality of his tool.

Dr. Jeffrey Segal, a neurosurgeon and founder of Greensboro, N.C.-based Medical Justice, created mutual privacy agreements that prohibit patients from rating their doctors. Wiggling through loopholes in the Communications Decency Act, the agreements transfer to the physician the copyright on any online content about the doctor. Segal’s business has licensed the agreements to 2,000 physicians, and he says the “vast majority” of patients sign them. If a patient violates the agreement, the doctor can try to enforce it by asking the ratings website to remove the post.

While the American Medical Association has no policy on these agreements, its president, Dr. Nancy Nielsen, says Web forums “have many shortcomings.” Segal says a credible system, akin to the one used to produce Consumer Reports, would verify patient status, evaluate only technical competence and require a minimum of evaluations “to soften the extremes.” While First Amendment considerations don’t factor in, Sam Bayard of Harvard University’s Citizen Media Law Project questions whether copyrights to content that doesn’t yet exist can be transferred. But, he adds, “private parties can do what they like.”

So far the agreements have not been tested in court. But that has not stopped them from being–according to Segal–unfairly characterized as gag orders, even though nothing in them prevents unhappy patients from suing, speaking to friends or complaining to licensing boards.

Bayard says rating sites are valuable because “individuals can con- tribute to the dissemination of infor­mation. There are defa­ma­tion laws to redress speech that’s really bad.” Invoking the “marketplace of ideas,” Bayard adds that the remedy for reckless speech is to allow more. “They are truly open forums. Someone else can come along and add a positive comment. It’s healthy.”

#PolicyIssues

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About Kirk

Since becoming a lawyer in 1983, Kirk’s over 30 years of practice have focused on advising a wide range of corporations, associations, and individuals (as both plaintiffs and defendants) on both tort and commercial law issues centered around “mass torts.”

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