Common Law - The FindLaw Consumer Protection Law Blog

Doctors Using Confidentiality Agreements to Prevent On Line Reviews

Nobody likes to be criticized publicly, least of all it seems, doctors. A new trend with medical care providers has website ratings services such as AngiesList and RateMDs feeling a bit ill. Doctors, saying they fear for their all-important reputations, have taken to asking patients to sign confidentiality agreements stating they will not rate doctors or their services on line. AngiesList founder Angie Hicks calls these agreements "medical gag orders" and they may be unenforceable.

The growing use of these confidentiality agreements has developed in response to what some doctors perceive as unfair, damaging and potentially libelous comments posted on the online ratings services. Dr. Jeffrey Segal, a neurosurgeon and founder of Medical Justice Services Inc., a North Carolina-based business that helps doctors battle defamation (for a fee), says patients are always free to seek medical providers who don't require this type of agreement be signed. It is unclear what Segal would suggest to a patient who had already developed a relationship with a doctor, or if there were no other medical care providers in the area who were part of the patient's insurance network.

These contracts haven’t been tested in court, and Internet law experts say they’re unlikely to prevail.

Segal sees the rights of the doctors as lagging in this area. “There is no venue for physicians to get their side of the story out,” said Segal, who notes that doctors can't respond to specific patients because doing so would violate federal privacy laws. When the posting is anonymous, as it is on some sites, it could be from any source, such as a competitor, ex-employee, or even an ex-spouse, Segal said.

One difficulty with this argument is that it holds true for anonymous or untraceable comments regarding any person hoping to earn their livelihood by providing services that are reviewed online. Doctors do have a more rigorous standard of confidentiality than perhaps that plumber who was harshly reviewed on AngiesList, but both are equally at risk of loosing custom from a bad review. Perhaps it is just that the stakes are higher for doctors, involving as they do risk to health, life and large sums of money...more so than the average plumber.

A backlash is now gowning however, against those doctors requiring the agreements. RateMD.com now includes a "wall of shame" for those docs who require them. More importantly, the Office of Civil Rights for the federal department of Health and Human Services recently forced a doctors’ practice to stop requiring patients to sign waivers in exchange for privacy protections already mandated under HIPAA, the federal Health Insurance Portability and Accountability Act.

Some doctors complain that the reviews focus more on a doctor's attitude and bedside matter than the medical outcome. This may be a valid complaint, but it may also be a tool for doctors to bridge the gap between medical competence and respect for patients that is often a major cause for complaint both on and off line.

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