AFSCME 3357-HOF'S BLOG

The Doctor will Gag You Now



The May 2009 issue of Angie's List Magazine (online here) has an interesting article about a new phenomenon in the New Patient Agreements that you have to sign when you see a doctor. "Gag" provisions in these contracts can prohibit patients from commenting publicly on the treatment they receive, with liquidated damages and attorney fees payable if the patient gets uppity.

Angie's List is a fast growing firm that lets members rate service providers and obtain rating reports submitted by other members. Informally, the company mediates disputes between consumers and service providers in some situations. I've been an Angie's List member for years, and I think they provide a very useful service. In recent months, Angie's List has started publishing ratings on medical professionals, so if these gag provisions catch on, the nacient medical rating service may never really meet its potential.

The author of the Angie's List article, Daniel Simmons, traced the medical gag provisions to a company in Greensboro, North Carolina called Medical Justice Corp. Medical Justice Corp. is run by a neurosurgeon named Dr. Jeffrey Segal. According to the article, medical offices that affilliate with Dr. Segal's firm pay between $350 and $1990 per year, and besides the gagging contracts Medical Justice's affilliates get up to $100,000 in "assistance" in countersuing medical experts who testify against the member. Gee, it sounds a lot like INSURANCE to me. I wonder if the INSURANCE COMMISSIONER knows about this assistance.

Hey, I'm all for free speech, and I think the doctors are wrong for putting in these gag provisions. I think the gag clauses will eventually be found to violate public policy and be therefore void. That being said, I can understand why the doctors are upset that patients can criticize them anonymously, but they can't comment back due to both traditional patient privacy rules and HIPPA. I think this is an area where the legal profession is ahead of the medical profession. The ABA Model Rules of Professional Responsibility, specifically Rule 1.6(b)(5) specifically allows a lawyer to disclose client confidences when the lawyer believes it is reasonably necessary to

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;

So the lawyer can disclose information when needed to defend himself/herself from false client allegations. But wait, this allows the lawyer to "respond to allegation in any proceeding concerning the lawyer's representation. . ." What is a proceding? Does this rule out the court of public opinion, specifically ripoffreport.com? Maybe Rule 1.6 could stand to be touched up a bit.