The High Tech Law Institute at Santa Clara University and the Samuelson Law, Technology, and Public Policy Institute at UC Berkeley School of Law have teamed up on a new site, DoctoredReviews.com. The site was formed to provide consumers with information about medical contracts that purport to censor or prevent negative patient reviews online. If you have been presented with one of these contracts, this site is a great resource to understand your rights. It’s an interesting legal issue, where HIPAA intersects with Section 230 and the First Amendment.
According to DoctoredReviews, doctors are using a company called Medical Justice to source the “anti-review” contracts. Medical Justice bills itself as “Relentlessly Protecting Physicians from Frivolous Lawsuits.” They offer a variety of services, including those designed to “Prevent Internet defamation.”
To wit, they produce doctor-patient contracts that try to limit critical reviews online. The contracts do this in three ways:
- Gag Order Provision: restricts the patient’s ability to comment or review online in consideration for enhanced privacy protection;
- Veto Power Provision: assigns copyright of all online reviews posted by the patient to the doctor; and
- A Combination of above (The Cadillac Plan, apparently).
So, let’s take a trip down memory lane to Contracts class. What’s the essential element for a contract? Consideration. The doctor in this contract is purporting to provide enhanced patient confidentiality as consideration in exchange for the patient surrendering the right to criticize the doctor online. However, federal and state law, not to mention medical ethics, prevent a doctor from violating patient confidentiality. In fact, The Office of Civil Rights has already issued a decision on this issue, invalidating the agreement and holding that:
“A patient’s rights under the Privacy Rule are not contingent on the patient’s agreement with a covered entity. A covered entity’s obligation to comply with all requirements of the Privacy Rule cannot be conditioned on the patient’s silence.”
There’s a lot of overreaching language in these contracts that I can’t believe is enforceable. For example,
“Physician is requiring all patients in its practice sign the Mutual Agreement so as to establish that any anonymous or pseudonymous publishing or airing of commentary will be covered by this agreement for all Physician’s patients.”
So, patient is not allowed to comment anonymously. In that event, how does the doctor know who posted the review? How can this be enforced except through court-ordered access to the site’s records? Unless the comment is prima facie defamatory, they’re unlikely to get it.
Then there’s this gem:
“In addition, Patient will not denigrate, defame, disparage, or cast aspersions upon the Physician; and (ii) will use all reasonable efforts to prevent any member of their immediate family or acquaintance from engaging in any such activity. ”
Love to see that one enforced. How do you bind an “acquaintance” from posting on the internet? What are “reasonable efforts?”
Consumer reviews aren’t going away any time soon. Professionals of all kinds need to embrace this, not fight against it. My sense is that doctors have enjoyed a certain cachet in society and are not used to losing control over that. Avvo has a great post on this point.
Interestingly, to Conrad’s knowledge, this issue has not come up with lawyers. That is to say, no one has come forward with an anti-review contract from an attorney, and no attorney has sent a take-down notice based on an anti-review clause. I might have a somewhat sheltered viewpoint on this, working in legal tech, but it seems like lawyers are not as afraid of using the Internet to market themselves. For small and solo practice, the Internet is crucial for advertising and finding clients. One way to get free traffic is to post your attorney profile on directories like Justia and Avvo, and in Avvo’s case, to get clients praising your work. I imagine that as the price pressure in the health care markets increasingly bear down on doctors, they will need to start taking advantage of the Internet, too.