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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) <<moc.liamg> <ta> <blameme>> 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.

  • 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.
  • 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: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.

  • 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: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.

  • by CookieOfFortune (955407) on Thursday March 05, 2009 @06:25PM (#27083695)
    Because you can refuse and have the option to go to another doctor. If all the doctors were doing it, then you would have no where to go.
  • by circletimessquare (444983) <circletimessquare@NoSpaM.gmail.com> 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

  • by forand (530402) on Thursday March 05, 2009 @06:28PM (#27083739) Homepage
    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 unless you are willing to sign away rights even if you can pay for the service. If we are talking about general practitioner than maybe but it can never put the patient at increased risk to not sign.
  • by maxume (22995) on Thursday March 05, 2009 @06:30PM (#27083767)

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

  • Re:Reality check. (Score:3, Insightful)

    by qbzzt (11136) on Thursday March 05, 2009 @06:31PM (#27083781)

    That's the thing that irks the snot out of me, it's a frigging SERVICE not a contract.

    It only becomes a contract is you sign a paper to that effect, which most doctors' offices ask you to do. The contact is mostly so you'll be bound to pay your deductible and if the insurance denies them.

  • 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.

  • 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.
  • What the fuck? (Score:2, Insightful)

    by QuoteMstr (55051) <dan.colascione@gmail.com> on Thursday March 05, 2009 @06:45PM (#27084005)

    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.

  • Re:non-issue (Score:2, Insightful)

    by Iluvatar (89773) on Thursday March 05, 2009 @07:23PM (#27084561) Homepage

    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 certainly not the last, no surprise here!

  • by Anonymous Coward on Thursday March 05, 2009 @07:30PM (#27084653)

    When I'm trying to fix a technical problem with a computer, there's a series of questions I ask the user. At some point enough things fall into place that I'm able to deduce the problem, and what the user is saying simply becomes noise (at least until I confirm my diagnosis). A user trying to be tricky and contradict themselves at this point to see if I'm listening to them would probably be disappointed, but at least their problem gets solved.

    Despite not listening to you, the doctor was able to make good, useful recommendations that you confirmed with a second opinion? In this case, I think it's simply a matter of different expectations. If you don't like how you're being treated then by all means go see another doctor. Hell a second opinion never hurts. This is not a case where you should rush out to give this doctor a negative review.

  • Re:non-issue (Score:3, Insightful)

    by Eil (82413) on Thursday March 05, 2009 @08:21PM (#27085303) Homepage Journal

    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 doctor on a website. If you post the review anyway, your doctor can sue for breach of contract. That's the way contract law works.

    Now, do most people believe that they should have the right post a review of their doctor online, regardless of what's in their health care contract? Of course! And if your doctor did sue you for breach of contract, it's likely that the judge would rule against you and order you to remove the post because you did break the contract.

    I know that every time someone says, "there ought to be a law," god kills a kitten, but in this case there really should be a law stating that businesses (which doctors and hospitals are) do not have the right to prevent you, via contract or other means, from writing a public statement of your experience with that business as long as that statement does not constitute libel.

    Of course, IANAL, so I'm open to other suggestions but this seems to best way to go.

  • by rossz (67331) <`ogre' `at' `geekbiker.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?

  • by Improv (2467) <pgunn@dachte.org> on Thursday March 05, 2009 @09:42PM (#27086133) Homepage Journal

    The health-care portion is probably less on average than what the average insured American pays for the same. Those of us who are fortunate enough to have really nice insurance in the US might be better off - it's depends on specifics (I happen to work for a University in an area that has a health insurance plan/medical network [wikipedia.org] run by a local university-spawned medical organisation that's considered one of the best in the country for service/cost - I am very happy with my private insurance and healthcare. Most people and places are not nearly that fortunate).

    Socialised medicine, as a general rule, is right for society, even if the wealthy and/or fortunate have something better.

  • by Anonymous Coward on Thursday March 05, 2009 @09:48PM (#27086185)
    Refusing to sit at the back of the bus isn't always a bad thing.
  • 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 Anonymous Coward on Friday March 06, 2009 @12:21AM (#27087297)

    Posting a truthful negative review would validate what the patient knows, and what many consumers know - but who often ignore their own knowledge. They can keep ignoring it if not allowed to state the facts. There is no guarantee of good medical care, a diagnosis, proper or effective treatment, or even surviving medical testing or treatment. It is, however, pretty much guaranteed that any treatment requires payment regardless of the absence of satisfaction or performance guarantee. A dead patient is no reason for non-payment. Very little is required of the medical profession, but a great deal of money is required to pay these professionals.

    That said, I can't see a skilled physician with integrity requiring the patient to sign away his rights.

  • 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.

  • by pete6677 (681676) on Friday March 06, 2009 @01:26AM (#27087679)

    Well, nobody ever said that freedom is free of cost.

  • 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.

  • Re:non-issue (Score:3, Insightful)

    by wisty (1335733) on Friday March 06, 2009 @06:13AM (#27089141)

    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.

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