Company tries to stifle online reviews with patient ‘gag orders’

by Daniel Simmons

“She is difficult and rigid. She’s easily offended by questions, and is often late. She is moody, controlling and the coldest fish known to womankind.”

“From the very first meeting, she gives a lot of time and does not rush. She is very up to date with your records. She’s very good about making referrals, and her staff is wonderful.”

Do you think it’s valuable to hear diverse opinions such as these, taken from two reports on AngiesList.com about the same Boston-area doctor? Do you think patients have a right to speak about their experiences — good, bad or otherwise — to whomever they like? Or do you think doctors have a right to privacy that overrules patients’ rights to free speech?

These questions have taken center stage since the emergence of so-called medical “gag orders,” now in use by a small group of doctors in a range of specialties across the country. The one-page contracts have been added to the stack of paperwork their patients sign before care begins. “You agree to refrain from directly or indirectly publishing or airing commentary” about the doctor or your medical care, the contract reads.

And if you do? The doctor may sue for damages, although there’s no evidence such a suit has been filed yet.

The contracts came about thanks to a Greensboro, N.C., company called Medical Justice Corp. The company incorporated in 2001, founded by neurosurgeon Dr. Jeffrey Segal, who remains its chief executive officer. Recently, the company launched a subsidiary for dentists called Dental Justice. Segal serves on the board.

Interviews with former patients and colleagues of Segal’s show a range of opinions about him as a neurosurgeon. Two of them — Glenn Cass and Mark Bachelor — highlight how doctors can leave profoundly different impressions on the patients they treat. Cass and Bachelor agree on one thing about Segal: he doesn’t lack confidence.

To Cass, the confidence was reassuring when Segal was treating his late wife, Caroline, after she had a stroke in 1999. “I’d recommend him to anyone,” says the 78-year-old retired teacher and former neighbor of Segal’s. When Segal and his family moved from Terre Haute, Ind., to North Carolina in 2000, he says, “I hated to see them leave.”

But Bachelor found the doctor’s attitude off-putting. “He likes himself a lot,” he says. “His best friend is a mirror.”

Segal treated him for a broken neck after the 57-year-old contractor fell head first off a horse at his home in Hutsonville, Ill., also in 1999. Bachelor says post-surgical complications required two corrective surgeries to avoid what would have been a permanent disability — and prompted him to sue the surgeon for medical malpractice in 2001. He says he eventually dropped the case because of insufficient evidence to prove malpractice at trial.

Medical Justice originally formed to help protect doctors against what Segal calls frivolous malpractice lawsuits, citing his own experience being sued by Bachelor. The company pre-emptively threatens to countersue expert witnesses scheduled to testify in malpractice cases against its members — who reportedly pay between $350 and $1,990 per year depending on their specialty and state — and offers legal support up to $100,000 in the countersuits.

It wasn’t until 2007 that the company started offering members the “gag order” contracts. Segal did not return calls seeking comment from Angie’s List Magazine, but he reportedly defends the contracts as essential to protect a physician’s good name and prevent an unfair character assassination.

“Jeff has very cleverly thought of a way to allow the doctor to protect his reputation,” says Hawaii plastic surgeon Dr. Larry Schlesinger, a longtime Medical Justice member and one of approximately 1,000 doctors nationwide who reportedly use the contracts. He maintains he’s never had a patient question them.

Dr. Nick Slenkovich, a plastic surgeon and Angie’s List member in the Denver area, explains why he uses the contracts: “It’s fear. Fear that you would be unfairly characterized, even by an unscrupulous competitor.”

Elsewhere, though, the contracts have prompted a blast of criticism. Lawyers call them legally dubious. Patient advocates call them offensive. And some doctors — the group the contracts are intended to protect — call them paranoid.

“Even the best doctors can make mistakes or have a bad day when they come off as a jerk,” says Dr. Heidi Littman, a pediatrician in suburban Cleveland. “Their patients should be able to bitch about it to whoever they want.”

In interviews with other media outlets, Segal points out that many online doctor-rating websites don’t require posters to use their real names, allowing anonymous and sometimes vicious reports with no accountability. The contracts, he says, change that equation and give doctors a legal recourse.

However, the contracts actually offer doctors little real protection, say numerous First Amendment and consumer-rights lawyers interviewed for this story. “The hosting website under federal law has virtually no liability whatsoever for what’s on its site,” says Steve Kern, a Bridgewater, N.J., lawyer who 25 years ago founded what is now Kern, Augustine, Conroy & Schoppmann, one of the country’s largest doctors-rights law firms.

And suing the person who posted the comments is perhaps more legally dubious, the lawyers say. The contracts, because they’re between two private parties, don’t violate free-speech protections but would likely be looked upon skeptically by judges because the terms violate public policy favoring open discussion about medical care. “I think the contract is a very strong candidate for being voided,” says Philip Peters, a health care law professor at the University of Missouri. “It’d be like General Motors saying, ‘If for some reason your engine explodes and harms someone in your family, you won’t tell anyone about it.’”

Kern says the “gag order” contracts target doctors exasperated by malpractice insurance rates that have risen dramatically in the past two decades and a proliferation of comments about them on websites with doctor ratings. In its efforts to restrict patients’ comments, Medical Justice claims to have successfully gotten a handful of comments pulled from these sites.

Just 3 percent of Angie’s List members say they support contracts that would prohibit them from discussing their care by doctors and other medical professionals. Only one member reports actually being presented with this sort of contract by a doctor. “Had I not been referred by another doctor, I probably would not have gone along with it,” says Carolyn Yost of Carmel, Ind. “There shouldn’t be anything secretive about what they’re doing that shouldn’t be discussed with other people.”

David Pannasch of Franklin, N.J., strongly defends his right to publicly comment on his care. “Yes, definitely,” he says. “Fiercely, even. Capital F.”

But in some of the opposition to “gag orders,” there also runs a thread of sympathy for doctors because the strict patient-privacy rules of the federal Health Insurance Portability and Accountability Act known as HIPAA, along with state privacy laws, restrict their freedom to respond. “There’s no way for a doctor to defend himself,” says Angie’s List member Marilyn Messina of Tampa, Fla. “So he [or she] is caught between a rock and a hard spot.” 

Despite privacy laws, health professionals in dozens of interviews voiced strong support for patients’ free-speech rights. In an Angie’s List poll, just 15 percent back the contracts — and three-quarters say they wouldn’t consider using them.

But at the same time, many vent frustrations with online ratings. “The physician doesn’t get to post the [rebuttal] that the patient didn’t follow through with care or arrived 30 minutes late and was a real jerk to my staff,” says chiropractor Brian Billings in Gilbert, Ariz., who won’t use the contracts despite his concerns.

Patient advocate Becky Stephenson of Austin, Texas, points to a paradigm shift in medicine brought by online ratings but says doctors — good doctors — have nothing to fear. “The ones who are good and legitimate aren’t concerned about things like online ratings,” she says. “Every once in awhile you get crazy psycho patients with time on their hands to go after a doctor.”

Doctors need to learn to accept online criticism, warranted or not, Stephenson says, while patients need to remember to make decisions about which doctors to see based on multiple information sources. “You need to do more homework — with state medical boards and malpractice listings — and add all the pieces together,” she says.

But Slenkovich argues that Internet smear campaigns can be damaging. “You could hire somebody to cover the Internet with great reviews for you and negative reviews for your competitors,” he says. “I’m not aware of any site that does anything near the level of diligence that Angie’s List does, in terms of verifying who’s posting, scrutinizing the reports and then offering them to the people who are being reported upon.”

He views the “gag order” as one way to protect himself. “Your reputation is critical,” he says. “If you lose it, it’s gone.”

The effort to scare patients out of commenting altogether is no solution, says noted First Amendment lawyer Floyd Abrams. “I think it’s clever and completely outrageous,” he says, “this notion that people have to sign away their right to speak or criticize in return for medical treatment.”

In decades of national-level experience with First Amendment cases, he’s encountered a similarly explicit “gag order” only once, when he was defending socialite Ivana Trump after her 1991 divorce from real-estate mogul Donald. A clause in their separation settlement barred Ivana from public commentary about her ex-husband, and Abrams defended her when her ex-husband sued for $25 million over her novel that, according to the Donald, was a bit too true to their real life. Ultimately, the court upheld the “gag order.”

But the Trump case is very different legally, Abrams says, from the Medical Justice contract. “An agreement between people getting divorced not to speak ill of each other could be considered in the public interest,” he says, “while requiring patients to agree not to say anything about a doctor may be against public interest.”

Meanwhile, intensive news reports about the “gag orders” had an unexpected effect: more people posted online comments about doctors and searched others’ health care reviews. On AngiesList.com, health care reports filed monthly jumped 50 percent between January and March.
The trend of online reviews appears here to stay, and Segal seems cognizant of it. In recent blog posts on his company website and in comments to reporters, Segal has started saying he’d like to partner with an online doctor-ratings website or launch one himself.

– additional reporting by Mason King and Paul F.P. Pogue

 


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I simply want to state patients regardless of gender or insurance or lack there of have the right to decent medical care with respect and dignity. If the doctor is performing within the laws and legislation and standards of AHIMA,JCACHO and HIPAA then the doctor has nothing to worry about. I'm a health care student, a mother, a fiancee and a patient as well as a consumer. My grandmother was an ER nurse for 4 decades, my cousin is a doctor, my fiancees cousin is a heart surgeon and I also went to school for medical assistance before deciding I wanted a degree in health information technology. The laws and standards are put into place to protect patients because things have happened in the past to compromise that. I am not demonizing health care providers as I am going to be in that field myself on a different level. And I have many relatives whom are health care providers. but there are good doctors and bad ones, good nurses and bad ones and the list goes on. This buisness causes burn out and some people get in to the buisness for the wrong reasons. And as a consumer/patient/mother/fiancee/future health care worker with other family members in the field in other states I see nothing wrong with a practice,hospital or provider of any service even of a medical nature being evaluated for the good or the bad. I am greatful for angies list as I can finally pick the right doctor and do not have to simply depend on word of mouth to find one for my children. and I can also find a great plumber, hair dresser and any other great service provider I want, and I can warn others if the service provider or buisness was awful or advise them if it was great. health care is expensive as many other services are expensive. Why should I have to pay 2 grand for a crown because a dentist screwed up a filling (happened) why should I go three months in pain because a doctor told me my infected gall bladder was only gerd(happened) why should I buy a a car, a television that doesnt work (has happened) why should I dish out money for a tutoring service that can't help my child (also happened). Its not that consumers are narcissistic or whiny. Its that we are sick and tired of wasting our time and money and being walked on. And if being a proactive well informed patient,consumer (whom is also a woman by the way) makes me a narcisstic whiner...then i'd rather be a narcisstic whiner(no offense) than a sucker or a victim that repeatedly gets bad service because I didn't have any way of knowing the place I was going to for that service,good etc was going to treat me that way. If I am going to pay between $180-$300 per kid for a physical and $500+for a dental procedure or a grand for a appliance or machine that supposedly is going to work, and thousands for tutors or home improvement that supposedly will be delievered I want to know I am getting my money's worth. And if that makes me difficult then "cheers to being difficult"

I love this site, I just joined Angieslist just now. I found out today my family and I were dismissed from our pediatricians practice for no reason. The practice is known for being kind, but one of the doctors pushes natural remedies and expensive juices and sometimes does not give a resolution when you go for treatment. I would name him but I am fearful of what he would do if I did. I learned I was dismissed after I requested to be transferred to the other branch (where all the doctors are wonderful) and I asked for a new doctor. I was probed why I wanted a new doctor and when I replied I was unsatisfied with treatment so I stopped taking my child to the doctor in question but still loved the other doctors in the practice I was told the medical records would be transferred and I was prompted to call back for an appointment. I did so, and then found out I was dismissed, my family is dismissed for "Life". I was very heartbroke by this, It felt like the pediatrician was breaking up with us so to speak. All because I gave an honest non abusive opinion. I would love to leave a review but I am afraid of the further action the doctor would take. So I would suggest, that if you find yourself in this situation with a doctor before you complain find a another doctor first or do not answer the receptionists question,its a trick question. I will never answer that question honestly again. Now I have to scramble to find a new pediatrician and its really hard. That's why I joined this club. I was surprised to find the practice with the doctor that burned me on the good list, but the practice is great, only the one doctor is not, and he was not listed on the review. Even so I would be too afraid to speak out against him after the backlash I got for just wanting to transfer to a different doctor in his practice. So what I have learned from this experience, is stay with a good doctor, and if you end up with a bad one but the rest of the practice is good, do not complain on that one doctor or they will dismiss you from the entire practice as punishment. This is a sad fact but it ones I am as of today being taught.

N.O. Doc -- you have one of the best comments. Thank you for posting it, especially since you are a physician and we need to hear more from you and other doctors.

jb.mcmunn--agreed. Highly unlikely that a physician would write 'lovely but retarded woman' on a file that he knows could be read by others. Having said that, I, as a woman, must say out loud that I find that many women complain endlessly about their doctors. And, for the most part, I find that they are generally ridiculous complaints. I am in my 50s and all my life I have listened to my friends whine and bellyache about the most ridiculous things about their family physicians. Or even specialists. I have seen some of the same doctors myself and have never EVER experienced the negativity that some of these other women report. If they wrote about their experiences on a website, it would, quite frankly, be lies. They say we women go to the doctor about 7x more often than men and I believe it. Basically, we are narcissists. We elevate ourselves on pedestals, and expect others to enable us in our self-worship. And what better way to engender that than to get a doctor to fawn all over you. So when the doctor gets frustrated and admonishes us for not doing more to look after our own health, our feelings get hurt and the first thing we want to do is lash out (at him). Ergo, complaints. We women are our worst own enemies.

There should be no need for gag orders because there should be no need for "physician rating" websites because there should be no such thing as a 'good' or 'bad' doctor. There should simply be doctors. Medicine is a calling. The priesthood is a calling. Teaching is a calling. So is engineering, the law, police service, etc. These are professions and there should be no such thing as a 'good' or 'bad' professional. No good or bad cops, no good or bad teachers, no good or bad engineers. What kind of medical school pumps out bad doctors? Hmm? If it's out there, let's close it down.

I do not think these gag contracts are the right answer. As a physician, I have had two people post negative things about me online. One is the only review on a certain site. Both of these individuals were offered appropriate medical care, but only wanted high-potency narcotics, which I told them I do not prescribe. Anyone who goes to this one site (not Angie's list) will likely not make an appointment with me unless they are sophisticated enough to realize that slander online is a possibility. I would love to be able to respond to these posts, but the sites in question require registration AND FEES ANNUALY to keep my rebuttals up. I won't be blackmailed into a subscription to a site. As far as Ronin Martin's statements, they could not be further from the truth. Medicare pays for resident level education; the kicker is that they give the training programs $100k/yr per resident. The resident is lucky to get paid $45k of that and is used to generate more income for the teaching hospital by basically acting like a physician's assistant to the attending faculty. All US medical schools charge tuition ranging from about 8k/yr up to about 45k/yr. Medical students either get family to pay this or take out loans (most common approach) that then compound interest and end up costing a lot more than the average house by the time they are paid back. There are greedy doctors out there. I know it. But the average medical doc is barely making over $125k/yr. Yeah, that is better than 35k/yr teaching, but think about this...the teacher did not do 4 years of undergraduate, 4 years of postgraduate (at insane cost) and then work like a dog for chicken feed for 3-7 years to get their certification. After 11-15 years of school/training after high school, you do kinda expect to make more than minimum wage. Think about it like this: before a cardiothoracic surgeon gets to cut on his first private patient, his high svhool classmate who became an auto mechaninc right out of high school will have earned almost 1 million dollars in gross wages at 55k/yr.

What are the doctors supposed to do about defamatory lies? The legal doctrine of defamation prose seems to have been thrown out the window. It will protect teachers and cops and ministers and plumbers, but doctors get the shaft. Why?

LOL! "Doctors need to learn to accept online criticism, warranted or not, Stephenson says". Ok, let's all post nasty lies about Ms. Stephenson and see how well she takes it. Whether it's a doctor or anyone else, no one should be able to post libelous remarks about someone anonymously. How would you like to see a review of your work where someone accused you of being a child molester? You'd like to be able to hold them accountable right? Same with the doctors or anyone else. As for the "retarded woman" comment, I will bet the doctor used a transciption service or voice recognition software that mangled what he dictated. You could have easily called the doctor and asked what that remark was supposed to mean. You probably would have received both an apology and a correction in the records. It appears that instead you chose to just whine about it. Apparently a high IQ does not equate to having common sense.

Doctor's already protect each other. Patients have a right to know what other patitents have experienced with a doctor. I have multilple, severe health problems and am now permanently disabled. I have been through a gammet of doctors. Do you know doctors only have to pass a course with a 'D' to be able to practice? There are a lot of bad doctors out there - I want the ones who made 'A's' in medicial school. Although I'm a college graduate, former college professor (head of the department) and corporate/state agency executive with a 141 IQ, one doctor wrote in my medical file and sent a letter to my referring surgeon that I am mentally retarded! The exact quote: 'lovely but retarded woman'!

I looked up a random sample...actually a focussed sample of ten doctors who I know personally to see their ratings on one of these sites. They are given a 1-5 star rating. The highest number of people who submitted ratings on any one doctor was ten. Ten patients out of 2 or 3 thousand patients that the doctor sees every year are able to establish an overall rating of the doctor. And they are self selected, presumably because they either really like the doctor or they really don't like the doctor. It's all just hogwash.

This has been as predictable for decades as the sun rising and setting. Hundreds of thousands of family physicians have worked for decades to ENSLAVE their patients to government researchers. Naturally, they will look to corrupt the jurisprudence that has made this tacitly possible even further. They are all Josef Mengele's acolytes. Don't believe me? Try reading Eileen Welsome's 1999 book, The Plutonium Files: America's Secret Medical Experiments During the Cold War. Tuskegee wasn't an aberration; it was a bellwether.

It's all about them.. no matter that taxpayers subsidize their education. Like wall Street, doctors are just another group that figured out how to get rich off the backs of "civilians" .. we paid for their servcies and when the deny them IE Medicare pays less that they can gouge from insurance carriers... so they refuse to accept it.. that's the real Medicare story We need a more "Republican" approach to health care.. state funded euthanasia seems to be answer.. cheaper and provides a quick profit to terminate via lethal injection.. it's the American ideal... no money? You have no reason to live since you cannot consume.

A good doctor has nothing to fear from patient comments made online. If the doctor is a quack, then they had better develop a better bedside manner, or maybe go back and refresh their education. Either way, patients are more educated and more informed because of the internet. Doctors need to include factors like that in their practice or pay higher malpractice insurance premiums!

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