Selling doctors on patient gag orders

May 24, 2011 6:16 PM

"It's completely unethical for doctors to force their patients to sign away their rights in order to get medical care." Ars Technica dissects doctor "privacy" agreements that seek to limit patients' ability to post online reviews by making them sign the copyright of any future reviews over to the doctor, in exchange for vague (and possibly illusory) extra privacy protection. Doctored Reviews offers info and tools for fighting "anti-review contracts," whose language comes primarily from an "anti-defamation protection program" sold by a company called Medical Justice. Sources quoted in the article express doubts that this kind of "privacy blackmail" would hold up in court, with some wondering if Medical Justice is actively deceiving doctors by selling them a product that won't work as advertised.

Doctored Reviews' press page has lots of interesting related coverage. Via BB.

posted by mediareport (30 comments total)

"First, force no contract under duress."
posted by orthogonality at 6:31 PM on May 24, 2011

Wow! I had no idea this was happening.... still reading through the links but what an eye opening topic!
posted by Poet_Lariat at 6:31 PM on May 24, 2011

Wow, this is disgusting. With as many doctors as I see on a regular basis, I'm amazed I haven't come across one of these yet. And when I do, I'm walking out the door.
posted by strixus at 6:36 PM on May 24, 2011

And it gets worse. The "mutual privacy agreements" promise not to exploit a loophole in HIPAA that allows doctors to sell patient information for marketing purposes. But Schultz said that loophole was closed several years ago. Which means that recent versions of the Medical Justice agreement (including the one I was asked to sign) are lying to patients when they promise more protections than are offered under federal law. The Medical Justice website still claims that patients are "granted additional privacy protections" under the law, but doesn't elaborate or back up this claim.

A contract is an exchange of things of value; if the doctor is only "giving" me what i already by law have, is this a valid contract? I'm not asking for legal advice, but would like to see one of Mefi's many lawyers comment on this.
posted by orthogonality at 6:37 PM on May 24, 2011 [1 favorite]

Yeah, my understanding is that a contract has to offer something of value to both parties. Someone can't just sign away rights in exchange for nothing.
posted by delmoi at 6:41 PM on May 24, 2011

ortho:

I know almost nothing about law. But what I am learning from my contracts class is that this is textbook "duress". Signing over something means absolutely nothing if someone is holding a gun to your head or (in this case) withholding medical care.

What kind of krap is that, doctors? I understand you want to protect your careers...but damn bitches, you shouldn't be doing it at the expense of the people you are SUPPOSED to be treating.

As a real question, and not to be snarky "Do doctors go through any kind of 'ethics' classes or CME?"
posted by hal_c_on at 6:42 PM on May 24, 2011

One of the weird things the article points out is that while doctors say it's to fight against fraudulent reviews, someone who posts a fraudulent review probably never signs the agreement anyways so what's the point. Clearly the doctors don't seem to be thinking this through.
posted by SirOmega at 6:45 PM on May 24, 2011

Yeah, my understanding is that a contract has to offer something of value to both parties. Someone can't just sign away rights in exchange for nothing.

I was confused by this concept too. What I learned is that there has to be "consideration" for both sides. Consideration is a "legally recognized detriment".

So yeah, you giving money to someone is a legal detriment just as them giving you widgets is a legal detriment. Thats a contract.

In this scenario, there is no legal detriment to the doctor.

But doctors probably hire people who can get around that in drawing up a contract. Its probably attached in one of those "you give me money and dont talk about me...then i give you medical care".

If anyone can school me here, I'd appreciate it.
posted by hal_c_on at 6:47 PM on May 24, 2011

I guess the only option left is to leave reviews of doctors you didn't visit. Or, perhaps, one you didn't use because of the request to turn over copyright.

I'm sure that'll improve things.
posted by Bovine Love at 6:48 PM on May 24, 2011

Signing over something means absolutely nothing if someone is holding a gun to your head or (in this case) withholding medical care.

While this analogy might have validity in an emergency room, I'm not sure it applies to a routine visit to establish care with a primary physician or getting a consultation for elective surgery. These can hardly be considered a state of duress when there is ample time to arrange for an alternative provider.

Still, this is an utterly pointless, poorly thought out, and unethical practice. I think a much more productive approach would be to encourage all of your patients to leave reviews on sites, and to find ways to facilitate that process. It would be both instructive to the physician in helping improve their practice, and would help balance out the sporadic (if that is the case) bad reviews that otherwise get disproportionate attention. Alternatively, it would do a better job of weeding out bad docs who get consistently poor reviews.
posted by drpynchon at 7:00 PM on May 24, 2011 [4 favorites]

Wow, that is pretty bad; I can never imagine forcing one of those things on a patient. In fact, I would say that any doctor who pays for this service is being victimized as well; the doctor review sites linked above are so outdated and full of bad information that they are pretty useless. For example, I have been in the same hospital for 20 years, yet don't appear on either site while people that left our hospital 10 years ago are still listed as being there. The reviews are a mixed bag; some physicians that are horrible are loved by their patients, while some excellent physicians are blasted (usually for long wait times or rude staff-which are valid complaints that a physician should want to know about). Interestingly there is one surgeon I occasionally work with that is very well thought of who got a scathing review. The reason: he had the patient sign one of those stupid agreements. I will probably mention it to him the next time he has a case here. It seems like the only people benefiting from this scam are the ones selling it.
posted by TedW at 7:06 PM on May 24, 2011

I wonder how many really crappy doctors there are out there that there's enough of them frightened of negative reviews that there's a mini-industry built up around this kind of fraud. Seems they'd be better served if they invested in being good doctors who attract customers and earn good reviews than threatening and scaring people with contracts like these.

Since so many people are one or two steps removed from the actual business decisions of medical care (including internal referral networks which limit patient choice and never knowing really what the services cost because all the patient forks over is the co-pay), there really aren't many ways the "invisible hand" can affect quality and cost of medicine. Seems like online reviews are the only recourse a lot of the time.

It will be interesting to see how all this plays out.
posted by hippybear at 7:14 PM on May 24, 2011 [1 favorite]

Seems they'd be better served if they invested in being good doctors

That requires effort & skill. It's just easier to find some hack "contract".
posted by aramaic at 7:21 PM on May 24, 2011

Any doctor or dentist so focused on his on-line reviews/presence that he'd do something like this, isn't focusing enough on patient care, and as such is a doctor or dentist that I'd avoid like the plague.
posted by scblackman at 7:41 PM on May 24, 2011 [5 favorites]

No question, this is unethical and a very bad precedent, however I do have some sympathy for the doctors. I mean, as a user I love Yelp, I love internet reviews sites in general. But I sympathize with the small business owner who can get devastated by a bad review or two, especially if for a type of business that doesn't get a lot of reviews. If one person has a bad experience (and there's always going to be someone who has a bad experience) they are much more likely to slam the business and blow things out of proportion. And truth be told there's some people out there who have become very entitled about their review power, coming into business transactions with a very "go out of your way to please me or I'm going go after you in my reviews" manner. It doesn't help that a lot of review site's business models is to charge way too much money for business owners to be able to respond to reviews and have an official presence on their businesses review page.
posted by aspo at 7:47 PM on May 24, 2011 [1 favorite]

I don't understand how patients who break this contract could be identified. There's no need at all to use one's real name when reviewing a doctor. In fact, many if not most people's usernames don't even include their real name. And I seriously, seriously doubt a disgruntled doc would have the power to make a review site hand over IP addresses and/or email addresses of the offending parties.
posted by parrot_person at 7:50 PM on May 24, 2011

hal_c_on: "But doctors probably hire people who can get around that in drawing up a contract."

I have been asked to sign contracts, drawn up by local lawyers who should have been fully aware of local and state law, that were *completely* unenforceable. Contracts that, for example, ignored state-mandated time limits for non-compete clauses. I've even pointed these unenforceable phrases out to the owners of the businesses, and they just looked at me blankly and said, "A lawyer drew it up, so it's valid."

And that's as far as many lawyer's clients are going to go, or the people who sign the contracts. It's in there, so it must be valid. The language is threatening or restricting, but it's in a "legal contract," so it must be legal.

No, don't take it on faith that language in a contract is solid and unbreakable, or even entirely legal.

Heh. I've also simply not signed everything in the stack handed to me by a doctor, because for one reason or another I did not agree with the statement I was supposed to be signing. (Example: the office that handed me a brochure about HIPAA and claimed they'd given me their HIPAA policy. Then asked me to sign a statement that said I'd been provided with their HIPAA policy. And could not comprehend that the actual HIPAA policy given to patients is something entirely different from an informative brochure meant for doctors.) They've never checked and asked me to come back and sign; I think they generally just stick the stack of papers in the patient file and get on with their day.
posted by galadriel at 8:07 PM on May 24, 2011

You know, tangentially, Ars Technica is fucking great these days. From actually telling the truth about games and gaming (and making the rest of 'games journalism' look lazy and complicit by comparison) to pieces like this and many others on Important Issues 'o the Day, they have gone from one of my favorite tech-related sites since way back to the very top of the heap in the last year or so. (And even though I didn't like their redesign a ways back, they've progressively refined it, and it's pretty darn slick, which I appreciate as a lover of slickness.)
posted by stavrosthewonderchicken at 8:07 PM on May 24, 2011 [2 favorites]

But doctors probably hire people who can get around that in drawing up a contract.

You'd think that, but people vastly overestimate their own ability to write legalese and save money on a lawyer. While their is a general trend in the US toward relaxing the strict, formal contract regime, people still write the sloppiest, wordiest, pseudo-informed shit I've ever seen when they think they can get one over on their counterparty.

In the past month I've redlined and sent back contracts that proposed:

1) Circular indemnity provisions. Why on earth would I oblige myself to indemnify you against having to indemnify me against having to indemnify you....?

2) Disclaimer of all warranties and guarantees and obligations to move a muscle, with nothing carved out to suggest that the party actually had any obligations other than to show up and get paid.

3) Travel expenses for services to be provided by a business that was within 5 miles of the client (redlined and bolded).

4) Making a client of a service provider liable for service provider's failure to withhold income for federal taxes from service provider's employees.

etc. I think the kicker was one that tried to get a party to sign over authorization to use any trademarks it owns, but used "copyright" and "trademark" interchangeably.
posted by Inspector.Gadget at 8:30 PM on May 24, 2011

while there is
posted by Inspector.Gadget at 8:30 PM on May 24, 2011

One of the weird things the article points out is that while doctors say it's to fight against fraudulent reviews, someone who posts a fraudulent review probably never signs the agreement anyways so what's the point. Clearly the doctors don't seem to be thinking this through.

The impression I got was that a company is selling doctors on these; my reading was that they've got a legitmate problem (fraudulent, axe-grindy reviews, something which Ars takes a frankly ludicrously blase view about; I want my doctor doctorin' not wasting time on the Internet trying to correct that crap, thanks) that they're probably inflating and using to sell a non-solution to legally-not-literate docs.
posted by rodgerd at 2:19 AM on May 25, 2011

The basic thing here is the lack of confidence of the doctors to gather positive reviews.
posted by skincarebeautytips at 3:08 AM on May 25, 2011

I want my doctor doctorin' not wasting time on the Internet trying to correct that crap, thanks

It's a tough problem, dealing with negative online reviews that may not seem fair, but it's a problem many small businesses and professions have had to learn to deal with. That medical professions have tended to circle the wagons on disciplinary information and done little over the years to help patients compare services is certainly a factor, too. This article linked from Doctored Reviews suggests doctors have been generally isolated from being publicly reviewed and have been shocked when it happens to them:

Online rating services, of course, aren’t exclusive to physicians. Most service providers and product manufacturers have been subject to consumer reviews for decades. But Stewart Gandolf, founding partner of healthcare marketing firm Healthcare Success Strategies in Irvine, Calif., says the trend has been a harder pill to swallow for doctors who have had little exposure to the “dirty world of business marketing.”

“No one in corporate American likes ratings sites, but healthcare is really the deer in headlights because they’ve been so isolated,” says Gandolf, noting that marketing of professional health services was illegal until 1977. “There are a lot of doctors who are very uncomfortable with this thing they can’t control and think, ‘You’ve got to be kidding me. I had enough to worry about before.’”

It's too late to stop online doctor review sites (and I think it would be a bad thing if they were stopped) and it's not clear that doctors deserve special protection from the kind of consumer sharing many other professions have had to learn to deal with. Which means the responses Doctored Reviews suggests here are the way to go. I assume you find those ludicrously blasé, as well?
posted by mediareport at 6:17 AM on May 25, 2011

It's a little simplistic to ask why they're afraid of bad reviews. Sick people are going to inherently be a very self-selected set of reviewers and readers. As some examples:

• A husband whose wife died sees no difference between a mediocre doctor and a brilliant one.
• A gynecologist is not exactly going to see Jennifer Y. saying "Doctor Andy fixed my genital herpes right up! Five stars!"
• If I was going to one of these sites, I would feel compelled to give extra weight to bad reviews... good ones might be astroturfing, but noticing a bad one might mean the difference between life and death!

I'm inclined to think that the web review model is fundamentally incompatible with medicine. Maybe what we need is a central government-run authority with published statistics about malpractice losses and settlements, patient load, etc... but of course that would come with its own host of problems and doesn't really answer the question of "which doctor has good bedside manner".
posted by Riki tiki at 6:39 AM on May 25, 2011

I'm inclined to think that the web review model is fundamentally incompatible with medicine.

That means "free speech" is fundamentally incompatible with medicine, though, doesn't it? I can talk to as many people as I like about a bad experience with a doctor, even write them letters about it and publish a paper zine if I want to go that far, but as soon as it goes up on the web it's now suddenly incompatible with medicine? How does that work again?
posted by mediareport at 6:45 AM on May 25, 2011

i've never trusted yelp enough to look up a review on anything, having been around customer service just enough to know how unreasonable people and their expectations can be, and plus it's a bit vague on the degree to which a reviewed party can buy protection from bad reviews, not to mention how well they screen out planted reviews. i don't get how anyone trusts anything said there. at least in a word-of-mouth thing you have some capacity to assess the sanity and reasonableness of the person offering an opinion.

when it comes to doctors, there is a fundamental unfairness about the review process you can't get around: while a company can respond to a bad review with an explanation or clarification or refutation, a doctor cannot do this because it can threaten patient confidentiality. so you can't come back and say that ms. smith, who claims you botched her hip replacement, disobeyed medical advice and went skiing a week after surgery. or that mr. jones, who says your billing practices are unfair, really just wants you to forgive the co-pay portion of his bill and thinks he can back you into a corner with a bad review. add to this that many people are entirely ignorant about health and the uncertainty of outcomes, and many will assume the doctor did something wrong if they are not cured.

so yeah, if i were subject to a review process against which i have no means to defend myself outside of perhaps paying whatever bribe the review site is asking for to remove or reposition bad reviews, then i'd be looking for a way around it as well.
posted by fallacy of the beard at 7:01 AM on May 25, 2011 [2 favorites]

The astroturfing/axe-grinding problem is how, once you have a good-sized network, Twitter becomes useful. It took me a long time to get that, and even longer to convince friends of that. Sure, breaking news and the funny one-liners, but it's also an instant, on-demand, personalized review tool. If necessary, you can ask for more detail from the person who has something negative to say.

I've found that Yelp is worthless. EVERY place I like has a few negative reviews on Yelp that, if I believed them, would keep me from going there.
posted by ctmf at 7:21 AM on May 25, 2011

while a company can respond to a bad review with an explanation or clarification or refutation, a doctor cannot do this because it can threaten patient confidentiality

fallacy, that's directly addressed at Doctored Reviews. They claim it's simply not true that doctors cannot explain or clarify their processes or procedures without threatening patient confidentiality:

How can I respond to online reviews? I thought that would violate patient privacy?
The most common patient complaints do not relate to a doctor’s medical advice or treatment; instead, they relate to non-confidential aspects of a doctor’s business operations, such as parking, wait times, and staff attitudes. See this study regarding the most common types of patient reviews. Doctors can easily respond to these concerns without violating patient privacy. For example, doctors can freely explain how they handle billing, scheduling, prescriptions and other general aspects of their services without either confirming or denying that a particular reviewer was their patient.

Doctors can use a similar approach in response to patients’ complaints about the doctor’s medical advice or treatment. Doctors can generally discuss how they handle their practices and their patients as well as the medical care and standards they use. Read an article discussing these issues here. Doctors can also request a specific patient’s consent to respond.
posted by mediareport at 8:42 AM on May 25, 2011

I was looking for a new primary care physician recently, and the review sites were very helpful. Mostly because I was able to take all of that into account; the negative reviews were going to be really negative, because sometimes, doctors just can't work miracles. But seeing a good set of positive reviews about specific aspects of a doctor's practice would definitely put a doctor on my list of possible hits.

The one I ended up choosing had a few bad reviews, but his office had responded to them professionally and courteously. The good reviews were stellar. And it turns out, they were right; he seems to be a great doctor.

The problem is... there's no alternative. I hate relying on online ratings for something this important, but the only other option is to throw darts at my HMO's doctor listing and hope for the best.
posted by MrVisible at 1:30 PM on May 25, 2011

I spent a couple of hours browsing through doctor reviews out of curiosity. I've done the same for professors. I've spent uncountable hours going through Amazon reviews (like more then a few). I've used Urban Spoon and Yelp for restaurant selection, and Trip Advisor for help in selecting hotels. For anything where you have more then a few reviews I find the idea that "it all sucks" just because some of them are bad to be pretty narrow minded and lacking in judgment. Is this where the internet literalists rule?

Sure you will see some suspiciously positive review. Sure you will see some bad reviews that seem unfounded. And I'll quite happily admit that some of the good and some of the bad reviews are likely fraudulent or borderline so. But assuming you take the time to actually read them, I think time and time again the pattern of feedback has matched the reality of experience (when I've been able to). You will see products/services/etc that have a ton of positive feedback and a few wildly negative ones. But you will see some with a goodly amount of negative feedback (not necessarily rabidly so, either). In my experience when I've ignored the latter i've usually been burned. The pattern of feedback and the text of the feedback seemed true.

It's tempting to write that off as much more nuanced then a typical person would be (I analyze lots of things for a living), but I think it isn't. Sure people can be overly focused on a particular anecdote but I think the ability to evaluate a variety of social opinions and form an opinion is something that most people have. People are often smarter then we give them credit for.

In my review travels I've seen the small proprietor going off the rails and being pissed at some negative review. Often the same product had a multitude of positive reviews; as far as I could see, the proprietor was waaaay over focused on the bad review, failing to step back and see the big picture. When your honour and ego have been kicked, I think it is human nature.

Specifically for doctors, I noted some had way, way more complaints about wait times, rudeness, billing errors, etc. then most other doctors. I strongly suspect those doctors should be looking at their practice instead of having people sign agreements. I think they are likely blind to their own businesses shortcomings.
posted by Bovine Love at 2:11 PM on May 25, 2011