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Doctors Gagging Patients

March 5, 2009 

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.

(see the article online)

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