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Censorship Medicine Your Rights Online

Doctors Silencing Online Patient Reviews Via Contract 324

Posted by timothy
from the that's-one-view-of-the-1st-amendment dept.
Condiment writes "Next time you're sick, take five and actually read the pile of contracts your doctor dumps on your lap, because it's becoming more and more likely that your doctors are banning patients from posting reviews on the Web. You heard that right: as a prerequisite to receiving medical care, patients are in many cases required to sign away their First Amendment rights!"
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Doctors Silencing Online Patient Reviews Via Contract

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  • non-issue (Score:5, Insightful)

    by Em Emalb (452530) <ememalb AT gmail DOT com> on Thursday March 05, 2009 @06:04PM (#27083331) Homepage Journal

    see subject.

    You can't ban free speech, at least not in this country.

    Although they're working on it.

    • Re:non-issue (Score:5, Insightful)

      by Arthur B. (806360) on Thursday March 05, 2009 @06:09PM (#27083441)

      Freedom of speech includes the right to waive that freedom in particular cases. NDA's for example.

      This is not censorship or a ban on free speech.

      This is a questionable practice, it's doomed to fail because anonymity makes it unenforceable, it's counter productive, it's idiotic, but it is not a violation of freedom of speech.

      • Re: (Score:2, Informative)

        by Em Emalb (452530)

        yes, you're correct. However, it is a censuring of a "right" in that if I go to a doctor and receive treatment and don't like the treatment...I should by the inherent right of our freedoms be able to post my opinion about it.

        This is lame. I'm so tired of hearing/reading about crap like this, it just frustrates me. How dare I voice a negative opinion about some stupid doctor's office? Please.

        There outta be a law....:D

        • yes, you're correct. However, it is a censuring of a "right" in that if I go to a doctor and receive treatment and don't like the treatment...I should by the inherent right of our freedoms be able to post my opinion about it.

          This is lame. I'm so tired of hearing/reading about crap like this, it just frustrates me. How dare I voice a negative opinion about some stupid doctor's office? Please.

          Nothing a few disgruntled patients with high aggression levels won't fix.

          There outta be a law....:D

          Now you've gone and made me cry.

        • Re:non-issue (Score:5, Insightful)

          by neapolitan (1100101) on Thursday March 05, 2009 @06:24PM (#27083671)

          As a doctor, I would just add that doctors that are nice, and doctors that are skilled, are weakly correlated. Patients are, in general, able to evaluate the first trait, but not as well the second. It is a shame, because misunderstandings happen -- you see every permutation: very good doctors that don't have excellent people skills, very good doctors that are jerks because they think they are so good, (technically) bad doctors that are really nice, doctors with substance abuse problems, patients that are completely unreasonable and on their fifth physician whom they will shortly badmouth, and good doctors that told the patient something honestly that they didn't want to hear, who subsequently leave and badmouth the doctor.

          It's a very complex issue, and difficult to sum up in a little pithy paragraph or two.

          What I would counter to this particular 'problem,' is, make a list of doctors who make you sign such contract, and post it for everybody to see. That would surely not be illegal, and just do not go to any of these doctors. It is like a prenuptial agreement -- I can see how it would be useful / essential for some people, but I wouldn't want to be anywhere near a situation that requires this.

          • Re:non-issue (Score:5, Insightful)

            by DrLang21 (900992) on Thursday March 05, 2009 @06:41PM (#27083937)
            As a patient, I would just like to add that to any reasonable person (I know the existence of these patients can be rare) it's generally assumed that most negative feedback is first exaggerated, and second, not necessarily linearly proportional to the negative experiences. People are a lot more likely to go out of their way to write feedback when they are emotionally moved (ala, being pissed off). Good experiences don't often strongly move people emotionally... at least not like bad experiences can. So the point to take here is, don't worry too much about the negative feedback. Once enough doctors around you have feedback, it will not matter unless you really have a disproportionate amount of negative feedback, which should make you consider the possibilities that you really do deserve it, or that you are a victim of libel slander.
          • by Arthur B. (806360)

            It is like a prenuptial agreement -- I can see how it would be useful / essential for some people, but I wouldn't want to be anywhere near a situation that requires this.

            Quite the opposite, the prenup allows you to *keep* some freedom that you would lose with the default marriage.

          • Re: (Score:2, Interesting)

            by fratermus (608212)
            I'd say the agreement could be that the patient is free to post about the doctor. The patient agrees that doing so allows the physician to post, in public, about the patient. This should help us identify legitimate whistleblowers from Munchhausen whackjob hypochondriacs and whiners.
          • "It's a very complex issue, and difficult to sum up in a little pithy paragraph or two."

            How about "regardless of skill, doctors are humans too".

            I'm not from the US, the thing that grabbed my attention in TFS was "the pile of contracts your doctor dumps on your lap". Why is there a pile of contracts in the first place?
          • What happens when you have a hypochondriac who decides, irrationally, to go "after" a doctor who's treatment he did not like, did not think worked or whatever?

            It becomes a bitch to deal with.

          • by jeko (179919) on Thursday March 05, 2009 @11:07PM (#27086835)

            very good doctors that don't have excellent people skills, very good doctors that are jerks because they think they are so good

            There's a reason why "bedside manner" has been considered an important skill since Hippocrates. Until we have a Star Trek medical tricorder that can tell us ABSOLUTELY everything that's going on inside a patient's body, then you're going to have to rely on patient reports for much of your diagnostic information.If your people skills are so bad that you can't hear your patients, or you engender so little trust that they don't tell you what you need to hear, then you aren't getting the whole picture, and that by definition makes you a bad doctor.

            There's a reason why Gregory House works with four other doctors.

            Beyond that, arrogance in a physician is LETHAL. Arrogance makes you secure in your first conclusion. Arrogance makes you resistant to disproving your own hyptheses. Arrogance means you don't consider new information, or information that contradicts your first assumptions. I wouldn't be surprised to find out physician arrogance was a leading cause of malpractice suits.

            • by demonlapin (527802) on Thursday March 05, 2009 @11:53PM (#27087123) Homepage Journal

              I wouldn't be surprised to find out physician arrogance was a leading cause of malpractice suits.

              Well, consider it a contributing factor. It's actually bad blood between patient and physician that is the #1 cause of malpractice suits; sometimes that's rooted in an unreasonable physician, sometimes in an unreasonable patient or family. Also, the specialty makes a huge difference: in a general practice, there's a great deal more handholding required. I'm an anesthesiologist, and I have what I think is a pretty good bedside manner for my specialty. I'd be bad at family practice, but the qualities people seem to respond well to in anesthesiologists are the same things they want in airline pilots: a calm, unexcitable person you'd trust with your life (because you're definitely doing that). It's a good fit for me, but not for everyone.

          • Re:non-issue (Score:5, Insightful)

            by syousef (465911) on Friday March 06, 2009 @01:01AM (#27087533) Journal

            As a doctor, I would just add that doctors that are nice, and doctors that are skilled, are weakly correlated.

            I'm tired of doctors on slashdot saying STUPID things like this. I am troubled and angered that a doctor can be so incredibly blind that they'd make such awful statements.

            Being "nice" is a PRE-REQUISIT to a doctor being skilled. A doctor who can't build a rapport and trust with the patient is not going to be able to get ALL the pertinent information. They will make mistakes ignoring and misdiagnosing the patient. If their people skills are so poorly developed they are likely to allow their own biases to cloud their judgement. I've seen this first hand. Doctors insisting there is nothing wrong with a patient that's showing clinical symptoms that can't be faked.

            Also doctors that aren't "nice" and don't genuinely care about their patients are more likely to be sloppy with their diagnosis and treatment because it just doesn't matter to them. For example I've seen 3 doctors fail to check the contraindications on a patient's medicine while each one upped the dosage and caused the adverse reaction to increase until it was life threatening. Then when brought to the specialist's attention he said "oh okay...maybe you should stop then" failing again to check that suddenly stopping said medication makes people suicidal.

            It is a shame, because misunderstandings happen -- you see every permutation: very good doctors that don't have excellent people skills, very good doctors that are jerks because they think they are so good, (technically) bad doctors that are really nice, doctors with substance abuse problems, patients that are completely unreasonable and on their fifth physician whom they will shortly badmouth, and good doctors that told the patient something honestly that they didn't want to hear, who subsequently leave and badmouth the doctor.

            You and I define "good doctor" differently. As long as people skills and clinical skills are seen as separate and distinct, the medical profession will continue to decline.

            What I would counter to this particular 'problem,' is, make a list of doctors who make you sign such contract, and post it for everybody to see. That would surely not be illegal, and just do not go to any of these doctors. It is like a prenuptial agreement -- I can see how it would be useful / essential for some people, but I wouldn't want to be anywhere near a situation that requires this.

            The trouble with this is most people are so apathetic that they'll just see you as some trouble maker on a holy crusade. If a doctor tried to make me sign something like that I'd simply look for another doctor. If all doctors available to me did this I'd be double checking everything they did and getting second opinions all over the place because I would realize the doctors don't even come close to being interested in my well being.

            • Re: (Score:3, Insightful)

              by wisty (1335733)

              Replace "doctor" with "lawyer", "manager", "programmer" or "recruiter", and it still makes sense.

              People skills are important, but seeming "nice" is not the only people skill that matters. There are plenty of people who are honest, but a bit rude (all good surgeons, for starters), but it doesn't mean patients would like them.

          • by Wandering Wombat (531833) <mightyjalapeno@@@gmail...com> on Friday March 06, 2009 @01:57AM (#27087871) Homepage Journal
            What confuses me is... your doctors give you contracts? To HEAL you?

            ...

            I think I've found a flaw in your medical system. In Canada, doctors give us medicine.
          • Re:non-issue (Score:5, Insightful)

            by bitrex (859228) on Friday March 06, 2009 @02:52AM (#27088153)

            It's difficult for any doctor to be nice when they're overworked, and as a patient with a neurological illness that has not been conclusively diagnosed in the past 3 years who has seen 9 specialists in that time, I've seen my share of good and bad physicians. All of them have been overworked, it goes without saying. Interestingly, the physicians who have been able to shed the most light upon the possible causes for my suffering and do the most to relieve its symptoms all were physicians who had their own essentially private practices and answered to nobody but themselves. They always run an hour to two hours late in seeing their patients. Nobody in the waiting room cares, because they know they'll get at least a half hour of time with the physician to work through everything. The last time I was at Super Huge Specialist Head & Neck Neurological Hopsital That Advertises a Lot in Big Northeastern City I timed how long my appointment took - 8.5 minutes. How can one possibly hope to make it through all the issues that come up with neurological problems in that time?

            I have to say that when the symptoms of this illness first came on after the "fever of unknown origin" I had in 2006 I thought to myself: "I'm screwed." Neurological symptoms aren't like a sucking chest wound - but I was still consistently amazed at the number of physicians who seemed incapable of believing that I was in excruciating pain because there was no physical evidence. However, being at one point a student of science myself, I understand the position that they're in - and in my circumstances the only physicians I would rate negatively were the ones (one) who said things such as "I'm not interested in your medical history, I've got a lot of people to see today, I just want to know symptoms." One physician I saw told me straight out - "I don't know what's wrong with you. There are a lot of things that can go wrong with people that medical science doesn't understand: you might get worse, you might eventually get better, you might stay the same the rest of your life, but I could help 20 people who have things wrong that I DO understand in the time that it would take to work on you and think up some treatment that may or may not have any effect." The latter would not get a negative review from me.

            Television shows like House, M.D. always make me chuckle, having been too close to the subject matter for suspension of disbelief to work. When something serious goes wrong with one's body that cannot be diagnosed with first-line test results and (revenue-generating) treatment prescribed in 8.5 minutes, you are no longer an asset to the healthcare industry. You are a liability. There is no genius physician who will ponder over your case in his or her downtime. There are no attractive residents who will hold conferences in well-appointed conference rooms where they will discuss your case and argue over the possible diagnoses on whiteboards and through video teleconferencing. If you have something go terribly wrong with your body, hope that it's a chronic condition, because otherwise you'll die admiring the 1970s airport style furniture in the emergency room waiting area as the 2 physicians on staff at 3 AM chat up the nurses.

      • Freedom of speech includes the right to waive that freedom in particular cases. NDA's for example.

        This is not censorship or a ban on free speech.

        This is a questionable practice, it's doomed to fail because anonymity makes it unenforceable, it's counter productive, it's idiotic, but it is not a violation of freedom of speech.

        But if the doctor is paid in any way by medicare/medicaid or any other government funded source, they can not force this clause.

        • Reference? I don't think this is true... In general a doctor can not abandon a patient in need (ER doctor, rural doctor, etc.), and can not systematically discriminate (I won't treat Italians / African Americans, etc.), but they are free to treat whoever they want otherwise.

          Regarding signing an agreement to post negative comments, I would think this requires a prior court case, because I doubt any such language in the Medicare/aid legislature rules are specific enough to be directly applied. I'm sure the

          • > Alas, that is how lawyers make their millions and become parasites of the system in some ways, but do good things for many people in other ways.

            Yes, they do some good things: they defend the people against your former parasites. In the end, both kinds of lawyers get millionaires.

      • by circletimessquare (444983) <[moc.liamg] [ta] [erauqssemitelcric]> on Thursday March 05, 2009 @06:28PM (#27083735) Homepage Journal

        since its unenforceable, its no big deal

        but you are disregarding the issue of intent

        simple actual effect is not the only grounds on which we can, and should, legally proceed, on this question or any other

        that's why we can try people for attempted murder. but according to you, someone is innocent until they actually murder someone. that if they try to murder someone, and fail, according to your approach they get off scott free. wrong. or consider the riaa: their reason for being is to stop music piracy. their tactic of suing grandmothers and students of course has zero effect. but according to you, since their intent is unfulfilled, they can't be prosecuted on the grounds of having an legally questionable purpose (nevermind being prosecuted for the secondary damage to their main purpose, of extortion of people of limited means)

        no, your entire argument completely disregards the notion of intent, which is a completely valid legal concept

        if someone attempts to squash your freedom of speech, they have violated the spirit of the law, if not technically successful

        and they are therefore wrong, morally, and legally

      • Re: (Score:2, Insightful)

        by Iluvatar (89773)

        What you say about anonymity is really important.

        Solving the problem at it's root would require that *both* doctors and their reviewers/patients can be held accountable for what they do or say, respectively. Reciprocity is fair.

        However, the only thing such a measure will eventually achieve is to encourage anonymous reviews. An anonymous reviewer cannot be held accountable for anything.

        In that respect this measure is just another example brain dead example of technology-blindness. It's not the first and c

    • Re:non-issue (Score:5, Informative)

      by fm6 (162816) on Thursday March 05, 2009 @06:23PM (#27083661) Homepage Journal

      The government can't ban free speech. (In theory, anyway.) Private individuals have more latitude.

      I once lost a job after disagreeing with a political rant a customer was making. (I thought I was polite and respectful; the customer disagreed.) Abridgment of my free speech rights! But no, two different lawyers assured me that employer was well within his rights in regulating workplace discourse.

       

      • Re:non-issue (Score:5, Interesting)

        by Em Emalb (452530) <ememalb AT gmail DOT com> on Thursday March 05, 2009 @06:32PM (#27083805) Homepage Journal

        Dude, been there, done that, except for the getting fired part.

        Had a guy go off one time on the phone about Clinton's "cigar" and "I didn't have sexual relations" thing when I was on the phone with him. He asked me my opinion and I said I didn't really care, as his getting (or not getting) some nookie didn't have anything to do with the state of the country. He got really irritated that I thought that (should have said I have no opinion, in hindsight) and then started lambasting democrats, Clinton, etc, complete with f-bombs and all that. I just hung up on him. Not because I'm a Clinton apologist, but because I didn't care.

        When they asked me about it, I said I accidentally hit the release button on my headset. They wanted to punish me for pissing off the customer, but since they couldn't prove the hangup was intentional, they couldn't. Win-win. I got to hang up on a butthead and received no punishment for it. (I quit that company not long after that) :)

    • Re: (Score:3, Insightful)

      by Eil (82413)

      Nobody's banning free speech. Patients are within their rights to refuse to sign the contract and take their business elsewhere to another hospital or doctor. It's not like health care is that hard to find. (It's just hard to pay for thanks to the insurance industry.)

      The very purpose of a contract is that it releases you from or binds you to certain obligations. If you sign a contract saying you won't post a review of your doctor on a website, you are bound by the contract to not post a review of your docto

      • Re: (Score:3, Funny)

        by fractoid (1076465)

        I know that every time someone says, "there ought to be a law," god kills a kitten [...]

        Actually, this is a case of correlation != causation. There's a hidden common factor - every time someone says "there ought to be a law", a laywer m@$#urbates.

  • First Amendment (Score:4, Informative)

    by Jon_Hanson (779123) <jon@the-hansons-az.net> on Thursday March 05, 2009 @06:05PM (#27083353)
    The First Amendment doesn't cover speech between two private parties. It covers speech that the government may not oppress. Please stop claiming First Amendment rights when the government is not involved.
    • Re:First Amendment (Score:5, Insightful)

      by Anonymous Coward on Thursday March 05, 2009 @06:09PM (#27083429)

      Ain't so simple as you make it. Courts have also ruled that free speech may not be banned by contract where there is a significant public policy interest in preventing this from occurring.

      Whether this would be included would likely be decided in court, and indubitably appealed to the first court of record in the jurisdiction where the case was brought.

    • Re:First Amendment (Score:5, Interesting)

      by Chris Burke (6130) on Thursday March 05, 2009 @06:29PM (#27083749) Homepage

      Please stop claiming First Amendment rights when the government is not involved.

      No, and I'm not going to stop until the government passes a law saying I can't. :P

    • Please stop claiming First Amendment rights when the government is not involved.

      Hey! I'm allowed to mischaracterize the First Amendment if I want to! It's a free country! Stop trying to take my rights away!

    • by Asic Eng (193332)
      The US is actually one of the few democratic countries which does not guarantee it's citizens freedom of expression. Most others have ratified the universal declaration of human rights and thus give their citizens the protection of article 19 of the declaration. (See http://www.un.org/Overview/rights.html [un.org])
  • by dave562 (969951) on Thursday March 05, 2009 @06:05PM (#27083355) Journal

    I'm not sure about the laws in other states, but here in California I refuse to sign a lot of the paperwork all of the time. I always refuse to sign the waiver that asks me to give up my rights to sue over medical malpractice.

    I think that as Americans we get conditioned to sign everything and rarely think about not doing it. Every time I refuse, I get weird looks, but I've never once been denied service.

    • by SoundGuyNoise (864550) on Thursday March 05, 2009 @06:24PM (#27083677) Homepage
      IANAL....No matter how many forms you sign, you are legally protected from ever waiving your right to sue. Putting in a "no sue" clause is merely a formality that you recognize the seriousness of what you are about to do.

      I have a company where my participants have to sign a release form. It's really more for our liability insurance. I'll even tell them they can't sign away the right to sue.
      • IANAL either, but . . . You can waive your right to sue by contracting to have any dispute settled by binding arbitration. Even then you can sue, but you have to argue that the contract or arbitration should not be acknowledged by the court before you can sue for them amputating the wrong leg. I suspect that most state medical boards have some ethical prohibition on conditioning care on the patients subsequent behavior (other than litigation and payment), if they don't they should.
      • Re: (Score:3, Interesting)

        by QuantumRiff (120817)

        IANAL....No matter how many forms you sign, you are legally protected from ever waiving your right to sue.

        No, that is not true. Mandatory Binding Arbitration has held up in court many, many times. You are giving up your right to a traditional court, and being forced to follow the rules and decisions of the arbitrator, who the company that makes you sign the contract gets to pick. (guess who they side with more than 90% of the time!).

        • by dgatwood (11270) on Thursday March 05, 2009 @07:58PM (#27085017) Journal

          You're kidding, right? Mandatory binding arbitration clauses are struck down frequently. If both parties have comparable negotiating power, they are generally upheld, but that's the exception, not the rule, from what I've seen. The 9th circuit has been striking them down left and right. Even in the 6th circuit, for disagreements not stemming out of the terms of the contract itself, such clauses have been thrown out recently.

          I'm not saying you can blow your nose on the binding arbitration clause, but it is a lot closer to the way a waiver of liability doesn't necessarily protect against claims of gross negligence, but rather tries to convince the injured party that they don't have a case so that they don't contact a lawyer in the first place. In other words, it's mostly a smoke screen more often than not, at least in the 9th Circuit. Your circuit may vary.

          • Re: (Score:3, Interesting)

            by ShakaUVM (157947)

            I think that the large health care company that is funneling millions of dollars of work to a *specific arbitration company* (at least, it is that way with Kaiser) is not going to get equal justice in such a setup. Or, rather, Kaiser will get justice, and patients will get nothing. I got to watch all that when my father tried to sue them after they nearly killed him (they injected him with radioactive iodine, which he turned out to be hideously allergic to, and then left him alone for three hours as he was

        • Re: (Score:3, Interesting)

          by Walkingshark (711886)

          You can always split the difference by crossing out the part where they get to pick the guy and writing in that YOu get to pick it, then signing that part and making sure you keep a carbon of the document with the modifications on it. Then enjoy the look of surprise on their face when they find out your mom is arbitrating the malpractice claim.

      • Yeah, but do you know anyone who sued after signing a contract that stipulated arbitration would be used to resolve any disputes?

        I do. The lawsuit was thrown out because they'd signed a contract agreeing to arbitration to resolve any disputes.

      • by Eil (82413) on Thursday March 05, 2009 @08:43PM (#27085581) Homepage Journal

        IANAL....No matter how many forms you sign, you are legally protected from ever waiving your right to sue.

        Bzzt. You can effectively sign away your right to sue and many people do, routinely, without realizing it. (The most common are cell phone, cable, and other service contracts.) The culprit is called a mandatory binding arbitration clause [consumerist.com] and when you try to sue the company, the court will require you submit to arbitration since that's what you and the other party agreed upon when you signed the contract.

        Now, arbitration doesn't really sound all that bad, does it? It's just like court only less expensive and with fewer gavels, right? Well, yes. For the company you're in a dispute with. The average person would still need a lawyer to properly interpret the terms of the contract (let alone contract law itself). Oh and by the way, the company gets to pick the arbitration firm. And they get to decide where the arbitration is held. And if by some chance you can make it the arbitration location with lawyer in tow and make a convincing case, you still only have about a 5% chance of the arbitration firm ruling in your favor [consumerist.com].

        Okay, so appeal the arbiter's decision in court, right? Nice try, but unless you somehow got permission to record the arbitration proceedings (unlikely, since companies try to keep arbitrations strictly non-public), you've got no evidence to make a case with. And in any event, courts have historically said, "sorry buddy, you agreed to an arbitration in the contract so now you're stuck with it."

        Arbitration clauses are another thing that need to be outlawed, IMO.

    • by ushering05401 (1086795) on Thursday March 05, 2009 @06:31PM (#27083789) Journal

      You can actually take this advice pretty far, but you may need to fight to get services of certain sorts.

      In a tough economy the candidates that return employment contracts with paragraphs lined through are setting themselves up for a fall.

      I witnessed the pain of a contract non conformist first hand while working with a fellow - we can call him 'Mr. New Hampshire.'

      Mr. New Hampshire refused to use his Social Security number for anything. Combine this with the fact that SS nums are the most overused weak authentication scheme ever devised, and many contracts 'require' an SS num... you can imagine the problems that ensued. Every single service this guy wanted including insurances of all sorts, I-9 employment eligibility verifications etc had to get routed through drawn out legal processes. In the end he would always get his way, but only three or four months after everyone else.

  • by pak9rabid (1011935) on Thursday March 05, 2009 @06:07PM (#27083395)
    Just because it's on paper and signed, doesn't mean it's enforcible in court.
    • Just because it's on paper and signed, doesn't mean it's necessarily enforcible in court.

      There, fixed that for me

    • by Savage-Rabbit (308260) on Thursday March 05, 2009 @06:32PM (#27083815)

      Just because it's on paper and signed, doesn't mean it's enforcible in court.

      Yes, but just because something isn't enforceable in court that doesn't mean it can't be used to bludgeon somebody into submission. Lawsuits are expensive. Theoretically justice is the same for everybody but in practice only the rich can afford a court case if it drags on for too long so de-facto the justice system mostly favours the rich.

  • by Shivetya (243324) on Thursday March 05, 2009 @06:08PM (#27083421) Homepage Journal

    The First Amendment protects your rights versus Government, not in contracts with others.

    Get it right.

  • by imemyself (757318) on Thursday March 05, 2009 @06:09PM (#27083439)
    This was actually brought up my commercial law class this morning. Our professor's opinion was that it was probably legal if just a few doctors were doing it. But, if all doctors in an area were doing it and it was not possible to obtain medical care without agreeing to this, it's possible that courts may not recognize the contract, because it was a "contract of adhesion".
    • Re: (Score:3, Insightful)

      by forand (530402)
      So you have to shop around for the doctor who will let you review them while you are bleeding out from a wound? This seems insane. I agree with your professors general thesis: that a business can put whatever limitations on its customers as long as such limitations are not on the face illegal nor so pervasive yet provide little to no benefit to the consumer that it is unfair to the consumer. However, in medicine this is not reasonable. It is not in societies best interests to make healthcare unaccessible
    • What the fuck? (Score:2, Insightful)

      by QuoteMstr (55051)

      How can a contract's validity depend on the contents of other contracts. A contract ought to be valid or invalid in itself, subject to any appropriate legislation. A contract's validity depending on the behavior of other actors is fundamentally unfair.

  • by fahrbot-bot (874524) on Thursday March 05, 2009 @06:11PM (#27083467)
    When I see something I don't like in those types of documments, I simply mark through it and initial. Don't know if it would hold up, but it's better than nothing. I've never had anyone say anything - probably because *they* don't read them afterward, which, of course, is not my problem ...
  • by redelm (54142) on Thursday March 05, 2009 @06:12PM (#27083483) Homepage

    In general, contracts are considered to be full-fledged agreements between parties and courts will bind them.

    However, there are three doctrines under which gag clauses could be severed:

    incapacity -- you were on the gurney when you signed and did not properly review the contract

    fundamental breech -- a party who does a terrible job of fulfilling their promises can no longer hold the other party to theirs; and

    public policy -- courts can invalidate any clause they deem contrary to public policy.

    US courts are very reluctant to use any of these. But a given sets of facts may drive a court. Bad facts make bad law. IANAL.

  • Reality check. (Score:5, Insightful)

    by girlintraining (1395911) on Thursday March 05, 2009 @06:13PM (#27083501)

    Everyone, repeat after me; "Some Contracts Are Not Legally Enforceable."

    Many of us have had to sign non-compete clauses, sign documents stating to hold ex-employers harmless so a prospective employer can ask them whatever, etc., etc. See though, most contracts have some language to the effect of "if some of this is declared crap, the rest shall remain in effect." They put that in there because they know there is crap language in there and are hoping you just go along with it because it "looks legal". It's the same way RIAA, the MPAA, and all those cease and desist orders we keep hearing about operate; Make it look official and chances are good people will go "Oh Noes! Legal Mumbo Jumbo! Aieeeeeee. thud."

    My advice? Sign it. Get treated. If s/he does a good job -- great, say so. If they do a crap job though, tell the whole damn world (but have proof). If that doctor wants to come after you for it; "Hello? Channel 9 news? I'm being oppressed." He might get you for breach of contract, but you'll make sure it's the last time anyone signs it. Think someone wants to risk their career, after spending 10 years just getting started in it, trying to prosecute someone who told the truth? Get real.

    • Re: (Score:2, Interesting)

      Well, one way to counter a non-compete is to make a counter offer that stipulates a paycheck for every normal pay period that is equal to what I would have gotten for working here, up to however many years.

      Then you proceed to use that money for _not working_ to go back to school and get a better degree.

  • by tsa (15680)

    That reminds me I still have to download 'Sicko' somehwere and watch it.

  • ...at least not with MY signature.

    I generally will put something in the signature space, but it will not be my signature.

    Nine times out of ten they do not inspect the signatures, and if it comes down to trying to enforce something I obviously did not sign, they can go ahead and try.

    (Especially if the signature block contains a scribbled "Not Signed"...)

    --Tomas
    ---University Place, WA

    • Re: (Score:3, Insightful)

      by maxume (22995)

      Has this worked yet, or are you just, you know, hopeful?

      • by SmoothTom (455688)

        I HAVE "signed" documents in a stack of documents in that way and had them accepted, I have not yet had to fight anyone in court over whether or not something obviously not my signature is my signature. You're on your own trying it, of course...

        --Tomas

    • IANAL, but perhaps you should talk to one. I believe anything you intend or represent to be your signature legally IS your signature.

      • by vux984 (928602)

        IANAL, but perhaps you should talk to one. I believe anything you intend or represent to be your signature legally IS your signature.

        Clearly he doesn't intend the mark to be his signature so the intent requirement isn't met.
        The leaves whether he represented the mark to be his signature. That's trickier... if someone hands me a document and says sign it, and I write in neat legible cursive 'terms declined' and hand it back... could you really say I represented that to be my signature, and not the rather plai

  • So recent news has taught me that if you post something anonymously, someone can sue to get you revealed. If a doctor has a "no negative review" in their contract, and they see a negative review online by anonymous, is that enough grounds to sue the website into revealing their identities?

    And how far do these clauses go? Can I not review online or can I not even talk to friends who might post my negative comments online? If I complain about a doctor to a friend, and they post those comments anonymously,

  • I've not perused these types of websites, but couldn't you post anonymously? To come after you, the doctor would have to prove that it was you posting, wouldn't they?

    Another thing that occurs to me: Say you sign the paperwork in order to get service. The doctor botches it and you post an unfavorable review. The doctor sues you for breach of contract. Then the doctor has to see evidence of the botched procedure brought up in court and perhaps in the media. It seems like suing a patient would be a ver

  • by EWAdams (953502) on Thursday March 05, 2009 @06:37PM (#27083887) Homepage

    I live in the UK, where I have no need of a contract with my doctor. I turn up, he treats me, I go away without signing a contract or paying a penny. I can say anything I like about him as long as it's not defamatory.

    • by Aphoxema (1088507)

      But there has to be a catch somewhere! Right? RIGHT?!

      I want socialized medicine too u.u

  • Businesses have people signing NDA's! They're taking our first amendment rights!
    • Your analysis is facile.

      Yes, NDAs are not (generally) a first amendment issue; but "NDAs for a variety of industry specific contract stuff" and "NDAs for something that virtually everybody will end up needing, possibly very badly, where making a less informed choice might just kill you" seem just slightly different somehow.

      Just because two things look the same in very broad strokes doesn't make them equivalent in practice.
  • Consider that doctors are forbidden by Federal HIPPA laws from responding to or even acknowledging that they have treated a given patient without that patient's written consent. It really is not fair that the patient is able to post whatever review he wants about a doctor on some website, yet the doctor is forbidden from posting a counter argument or defense of himself against this patients claims.

    Perhaps the patient ignored the doctor's advice, skipped checkups, won't stop eating nachos or failed to take

    • by Asic Eng (193332)
      There are interests of different quality involved there: the interest of the patient to be treated well and receive high quality care - vs the interest of the doctor to earn a living. I think it's clear that the first interest is a lot more important. Besides - this is the situation *any* business is in. It's not really a problem: a good doctor - just like a good restaurant - will generate good reviews, too. Statistically it's very unlikely that all whining patients use the same doctor, everybody will have
  • I think that people have the wrong idea about contracts. Contracts don't make it so you CAN'T do something, they just make it so there are possible consequences for it. If I signed a waiver and then posted about the doctor this merely (possibly) gives him the right to take legal action for it. But in that regard the damage is already done. As we have witnessed countless times, once something it out on the web, the harder you try to suppress it the more attention it attracts. It really boils down to do y
  • to a doctor. They can try all they want, but it won't hold up in court.

  • by Stealth Dave (189726) on Thursday March 05, 2009 @07:00PM (#27084231) Homepage

    This is why the movie Sicko! was so popular and why the idea of health care reform is becoming more and more popular, despite attempts to categorically dismiss it as a "socialist" idea. People have enough problems getting proper medical care without having to worry about whether your doctor is going to require you sign away your rights in order to get treatment.

    On one occasion when going to see a specialist for the first time, I was presented with the usual stack of paperwork before I was allowed to see the doctor. Luckily, I have an annoying habit of reading a document before I sign it, as one of the documents was (as another reader has described) an agreement to waive my right to sue for malpractice, and to instead agree to arbitration of their choosing. I signed the other documents and told the receptionist that I would need to have my lawyer look over the waiver before I would sign it, and she responded "Oh, okay. Just bring it in whenever; it's optional, anyway." Optional? Then why was it buried in this stack of required paperwork?!? (Yes, that question is rhetorical.) Needless to say, I opted not to sign it, and I got to see the doctor anyway.

    This is the last thing that the health care industry needs right now as it battles a PR campaign against movies like Sicko! and all the various "investigative reporters" for everyone from your local news to CNN. My wife and I even made our own short film [funnyordie.com] about it. (Go ahead; mod me a Troll, I don't care.)

    - Dave

  • If a doctor wants you to sign it, they suuuuuccckkk.
    If you are looking at ratings, look at more than one.
    If a doctor does Good, please mention it to the ratings.
    The problem is the AMA has shielded BAD TERRIBLE Doctors from being found out.
    They get lawsuits sealed and keep on issuing credentials to worst 2%.
    The worst Doctors account for a huge percentage of the lawsuits.
    The AMA protects them, we can't find out who they are.

  • At the top of the page, put a comment something like: we wonder what these doctors may have to hide if they prevent their patients from talking.

    That ought to fix it.

  • by Max Threshold (540114) on Thursday March 05, 2009 @08:27PM (#27085383)
    ...doesn't mean it's enforceable, or even legal. Clauses that violate a person's civil rights are never binding, even if accepted willingly.
  • Not gonna sign (Score:3, Interesting)

    by russotto (537200) on Thursday March 05, 2009 @08:41PM (#27085561) Journal

    If it's not an emergency, I won't sign such a form, and if the doc doesn't like it, there's others. If it IS an emergency, I'll sign, write the bad review if I get bad service, and argue about unconscionable terms later.

    If the state doctor's association convinces every doctor in the state, or my insurance company convinces all its member doctors, to require such a form, I'll post the bad reviews under a pseudonym. If they're going to collude, I'm going to cheat.

  • by rossz (67331) <ogre@gee k b i k e r.net> on Thursday March 05, 2009 @08:52PM (#27085673) Homepage Journal

    Your company provides you with health insurance. The health plan is your typical HMO. You don't get to choose your doctor. This is not an unusual situation. So what options do you have if they insist you sign one of these things? Your choices are sign it or not get any medical help at all. And don't say you have the option of paying for your own medical coverage. Have you seen the price of private medical insurance?

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