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Doctors Gagging Patients

Physicians insist patients aren't competent to criticize them

By Jon Hood
ConsumerAffairs.com

March 5, 2009

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Recent news reports have focused attention on a long-established but little-noticed practice: doctors forcing their patients to sign forms promising not to post an online review of the physician’s performance. The forms are provided by Medical Justice, a company whose website describes it as “relentlessly protecting physicians from frivolous lawsuits.”

Medical Justice owner Jeffrey Segal, himself a physician, insists that online medical reviews “are little more than tabloid journalism without much interest in constructively improving practices,” and defends his business as trying to prevent frivolous malpractice lawsuits.

Indeed, the company’s website loudly proclaims that, “While Medical Justice is sensitive to the fact there are legitimate claims by patients who have been harmed by negligent care, the fact remains that the majority of medical malpractice cases are ultimately deemed without merit.” The site further claims that, while eight to ten percent of doctors nationwide are sued for malpractice, that number drops to less than one percent for those who use Medical Justice’s services.

Medical Justice charges $1,500 for a one-year membership, which includes the right to use the generic gag order form, an “early action strategy” to be executed if the member is sued for malpractice, and a “pre-emptive critical practice infrastructure” to deter potential plaintiffs who are considering bringing an action. The plan also promises a pursuit of counterclaims against expert witnesses.

Almost 2,000 doctors have signed up since the service began two years ago.

The company encourages doctors to have all patients sign the “gag order” forms, and to tell them to go somewhere else if they refuse. While Segal insists that the forms are meant as a shot across the bow against Web sites, the form’s language warns that patients who breach its terms could also be subject to legal action.

While the forms may seem draconian, it’s unclear whether a court would uphold them. A court could potentially find that the unequal nature of the doctor-patient relationship makes the forms voidable; since patients place a large amount of trust in their doctors, the physician arguably has the upper hand in any agreements he or she enters into with the patient.

Additionally, the threat of withholding medical service unless the patient signs the form could be seen as a kind of undue influence and, in some cases, could subject the physician to sanctions by state licensing boards.

Whether the form is enforceable or not, the physicians who fork over the $1,500 for the comprehensive plan will likely still find harsh words about them online. That’s because at least one Web site — RateMDs.com — publishes comments anonymously and has no idea who posts on their site. Cofounder John Swapceinski has also refused several recent requests from doctors to remove the complaints altogether.

Swapceinski isn’t shy in making his opinion about Medical Justice known. As he recently told the Associated Press, “They're basically forcing the patients to choose between health care and their First Amendment rights, and I really find that repulsive.” He’s planning to start a “Wall of Shame” listing the doctors who subscribe to the service.

More to come

A spokesman for ConsumerAffairs.com, which has not routinely published consumer complaints about doctors, said most of the complaints it receives do not deal with malpractice issues but with billing disputes and the physician's general attitude towards patients.

Given the attempt by Medical Justice to help doctors gag patients, however, ConsumerAffairs.com said it would immediately begin publishing complaints about doctors and dentists and would search its database for previously unpublished complaints.

Medical Justice, meanwhile, claims it’s all for online physician ratings — but claims it wants them done right. On its blog, the company says it is “exploring” partnering with online ratings company Drsource.com, which Medical Justice views as “the one site pushing a scientifically validated survey methodology.” In the same blog entry, the organization defends its practices as necessary in an industry where doctors can’t respond to unwarranted feedback from “people posing as patients — such as disgruntled employees, ex-spouses, or competitors.”

The problem with this argument is that it could be made about any industry — lawyers, realtors, and car mechanics all run the risk that someone with a chip on their shoulder will post a scathing review that happens to be entirely false. It begs the question whether such risk comes with the business. If all else fails, though, there’s always RateMDs.com.

Reader comment:

I am not sure I completely agree with your position. The professions such as medicine and law do not share the same arms-length business/consumer relationship as that of any business such as a mechanic, realtor or any other business. The nature of the relationship is much more intimate, where the customer is relying on the doctor or lawyer to tell them what they need and they disclose confidential information.

By putting this on the Internet this exposes that relationship and, because lawyers and physicians are strictly regulated to protect confidentiality, their hands are tied and they cannot always respond to disgruntled clients and patients. What are they supposed to say? Yes she is angry about the hysterectomy but she had a long history of STDs that diseased it, stemming from manic sex episodes characteristic of bipolar patients like her. Or perhaps, Yes I refused to sue the defendants for fraud because Mr. Brown told me he stole those funds and despite what he thinks he had no case. If patients and clients are allowed to make the issue public, then shouldn't then doctors or lawyers be free to respond without needing to keep patient or client records confidential?

People don't like to lose their cases and they don't like adverse medical results, but half of all legal cases lose and many people can't be cured. There is a lot of anger though no fault of the professional.

And yes, except in outrageous cases most laymen aren't really capable of judging whether they are getting quality legal or medical services. They don't understand that their 85 year old parent died on the table because it was a choice of either take that risk or face a certain painful death three months later.

They also have to deal with people that are by definition ill or in legal trouble, which includes most people having mental problems, criminals and frauds. Or enraged that their father/mother/child died or that they lost their case, perhaps a child custody case --despite the fact that you did the best any doctor or lawyer could with what they had to work with. These people are prone to be malicious and vexatious, which is usually for the same reason they are in the system in the first place. Some physicians for example usually have two or three people a week faking symptoms in order to get drugs. Lawyers are frequently asked to file baseless actions by malicious clients or participate in committing some fraud on the court like destroying evidence or perjury.

This is reality folks, it's not your mechanic / consumer relationship. It's one where what you do to make clients or patients gush approval about you may be horrible professional conduct. A doctor could win kudos for passing out the morphine, a lawyer could get a pat on the back for helping the client fabricate evidence, but in both cases it would be reprehensible. By the same token, if you are valiantly dealing with a more hopeless medical or legal population, the complaints are bound to be more frequent from people disappointed with the results.

Medical boards and Bar associations have long recognized this special situation so they allow complaints to be filed and decided in confidence then published if there is any legitimacy to them.

My point is not that they shouldn't be rated for client or patient satisfaction, I am not sure I disagree with you. But the business / consumer advocate lens you are viewing the relationship needs to be a little more sophisticated. Your viewpoint needs more consideration about how to fairly deliver consumer critiques of professional services rather than Gag order, as if they are Panasonic getting people to refrain from criticizing their appliances.

Perhaps we need something altogether new in this situation.

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