Company tries to stifle online reviews with patient ‘gag orders’
Another attempt to curb comments
Some Medical Justice contracts go beyond restricting patients from speaking about care. They also claim anything written or published about a doctor becomes copyrighted material of the doctor.
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.”
What is HIPAA?
Your doctor is restricted by the privacy rules of HIPAA – the federal Health Insurance Portability and Accountability Act – from sharing any information about your care with almost anyone, outside of those involved in your care or for public health reasons such as epidemics or police investigations.
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