Do No Harm (But Don't Let Anyone Talk About You)

The online community reviews everything these days.  Be it via stars, thumbs, or free-form comments, the denizens of the Internet are keen to offer their assessments of books, movies, restaurants, and all else out for public consumption and aggregation.  Most subjects seem to accept it as a part of offering goods or services to the public.

Not the doctors, though.

According to an Associated Press report, some doctors, peeved at being subjected to patient reviews, are requiring their patients to sign waiver agreements, in which the patient agrees to refrain from posting online comments about the doctor, his expertise, or his treatment.

Oy vey.  (Or as Marc Randazza put it, "Omfg!")

This is apparently the brainchild of one Dr. Jeffrey Segal, and part of a service offered through his company, Medical Justice.  He justifies thusly:

"Consumers and patients are hungry for good information" about doctors, but Internet reviews provide just the opposite, contends Dr. Jeffrey Segal, a North Carolina neurosurgeon who has made a business of helping doctors monitor and prevent online criticism.

Some sites "are little more than tabloid journalism without much interest in constructively improving practices," and their sniping comments can unfairly ruin a doctor's reputation, Segal said.

Segal said such postings say nothing about what should really matter to patients — a doctor's medical skills — and privacy laws and medical ethics prevent leave doctors powerless to do anything it. (AP)

The AP writes that approximately 2,000 doctors have signed up for Segal's service, and that some doctors have indeed used the waivers to get websites to remove negative comments. Of course, those in the business of running sites hosting the criticism are a wee bit perturbed:

John Swapceinski, co-founder of, said that in recent months, six doctors have asked him to remove negative online comments based on patients' signed waivers. He has refused.

"They're basically forcing the patients to choose between health care and their First Amendment rights, and I really find that repulsive," Swapceinski said.

He said he's planning to post a "Wall of Shame" listing names of doctors who use patient waivers. (AP)

Doctors do have some legitimate concerns.  The New York Times recently covered the entry of Nina Zagat, of restaurant guide fame, into the doctor-reviewing arena.  Naturally, the doctors that the Times interviewed were dismayed, noting that they shouldn't be treated "as if we were preparing a meal."  Indeed, it's hard to think that the comments offered by medical-neophyte patients about their one-on-one care with a particular doctor would be revealing to others in any useful way.  Sure, if the doc were a jackass or clearly just waiting for his next round of golf, that might be helpful to know.  But would prospective patients really be wise to rely on, say, reviews of the hyperbolically misanthropic Gregory House, M.D. to determine his ability as a doctor?  On top of that, doctors may be limited in their ability to respond publicly to negative comments because of the doctor-patient privilege.

But, while rating doctors might not be terribly useful, requiring patients to agree not to review doctors is profoundly offensive.  The doctor-patient relationship is anything but an arms-length contract negotiation.  The ill patient has to place a huge amount of trust in the doctor and his/her vastly superior medical knowledge, and assume that the doctor will act in the patient's best interests.  For the doctor to impose unreasonable conditions upon the patient, especially conditions demanding the relinquishment of a core constitutional right like freedom of speech, is outrageous.  Without having seen a copy of the waiver itself, it is difficult to say for sure, but there are at least serious questions about whether a court would find such a waiver agreement enforceable.  The restriction on speech might be struck down as against public policy, or create a constitutional issue should a court (a state actor) move to enforce its provisions. Alternatively, the unequal power dynamic between doctor and patient might lead to a finding of unconscionability. 

Amusingly, Medical Justice's approach seems to have backfired by encouraging others to get into the game., which wasn't in the business of reviewing doctors before, announced that "Given the attempt by Medical Justice to help doctors gag patients . . . it would immediately begin publishing complaints about doctors and dentists and would search its database for previously unpublished complaints."  Good work, Medical Justice.  You're clearly well on your way to silencing the critics.

(Arthur Bright is a second-year law student at the Boston University School of Law and a former CMLP Legal Intern. Before attending law school, Arthur was the online news editor at the Christian Science Monitor.)

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