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Doctors Silencing Online Patient Reviews Via Contract
Condiment writes "Next time you're sick, take five and actually read the pile of contracts your doctor dumps on your lap, because it's becoming more and more likely that your doctors are banning patients from posting reviews on the Web. You heard that right: as a prerequisite to receiving medical care, patients are in many cases required to sign away their First Amendment rights!"
see subject.
You can't ban free speech, at least not in this country.
Although they're working on it.
Sent from your iPad.
The First Amendment doesn't cover speech between two private parties. It covers speech that the government may not oppress. Please stop claiming First Amendment rights when the government is not involved.
I'm not sure about the laws in other states, but here in California I refuse to sign a lot of the paperwork all of the time. I always refuse to sign the waiver that asks me to give up my rights to sue over medical malpractice.
I think that as Americans we get conditioned to sign everything and rarely think about not doing it. Every time I refuse, I get weird looks, but I've never once been denied service.
Just because it's on paper and signed, doesn't mean it's enforcible in court.
The First Amendment protects your rights versus Government, not in contracts with others.
Get it right.
* Winners compare their achievements to their goals, losers compare theirs to that of others.
This was actually brought up my commercial law class this morning. Our professor's opinion was that it was probably legal if just a few doctors were doing it. But, if all doctors in an area were doing it and it was not possible to obtain medical care without agreeing to this, it's possible that courts may not recognize the contract, because it was a "contract of adhesion".
Every time you post an article on Slashdot, I kill a server. Think of the servers!
When I see something I don't like in those types of documments, I simply mark through it and initial. Don't know if it would hold up, but it's better than nothing. I've never had anyone say anything - probably because *they* don't read them afterward, which, of course, is not my problem ...
It must have been something you assimilated. . . .
In general, contracts are considered to be full-fledged agreements between parties and courts will bind them.
However, there are three doctrines under which gag clauses could be severed:
incapacity -- you were on the gurney when you signed and did not properly review the contract
fundamental breech -- a party who does a terrible job of fulfilling their promises can no longer hold the other party to theirs; and
public policy -- courts can invalidate any clause they deem contrary to public policy.
US courts are very reluctant to use any of these. But a given sets of facts may drive a court. Bad facts make bad law. IANAL.
Everyone, repeat after me; "Some Contracts Are Not Legally Enforceable."
Many of us have had to sign non-compete clauses, sign documents stating to hold ex-employers harmless so a prospective employer can ask them whatever, etc., etc. See though, most contracts have some language to the effect of "if some of this is declared crap, the rest shall remain in effect." They put that in there because they know there is crap language in there and are hoping you just go along with it because it "looks legal". It's the same way RIAA, the MPAA, and all those cease and desist orders we keep hearing about operate; Make it look official and chances are good people will go "Oh Noes! Legal Mumbo Jumbo! Aieeeeeee. thud."
My advice? Sign it. Get treated. If s/he does a good job -- great, say so. If they do a crap job though, tell the whole damn world (but have proof). If that doctor wants to come after you for it; "Hello? Channel 9 news? I'm being oppressed." He might get you for breach of contract, but you'll make sure it's the last time anyone signs it. Think someone wants to risk their career, after spending 10 years just getting started in it, trying to prosecute someone who told the truth? Get real.
#fuckbeta #iamslashdot #dicemustdie
Inalienable means âoeunable to be taken away from or given away by the possessor.â
That reminds me I still have to download 'Sicko' somehwere and watch it.
-- Cheers!
Private healthcare seems to have some disadvantages.
The First Amendment would definitely apply if those doctors were employees of the US government...
...at least not with MY signature.
I generally will put something in the signature space, but it will not be my signature.
Nine times out of ten they do not inspect the signatures, and if it comes down to trying to enforce something I obviously did not sign, they can go ahead and try.
(Especially if the signature block contains a scribbled "Not Signed"...)
--Tomas
---University Place, WA
So recent news has taught me that if you post something anonymously, someone can sue to get you revealed. If a doctor has a "no negative review" in their contract, and they see a negative review online by anonymous, is that enough grounds to sue the website into revealing their identities?
And how far do these clauses go? Can I not review online or can I not even talk to friends who might post my negative comments online? If I complain about a doctor to a friend, and they post those comments anonymously, would the website be sued to get my friend's info, then my friend sued to get my info, then me sued for breach of contract? Seems illogical, and certainly stupid (streisand effect and all), but these are lawsuits we're talking about, it's not like rules of logic apply in any way.
since its unenforceable, its no big deal
but you are disregarding the issue of intent
simple actual effect is not the only grounds on which we can, and should, legally proceed, on this question or any other
that's why we can try people for attempted murder. but according to you, someone is innocent until they actually murder someone. that if they try to murder someone, and fail, according to your approach they get off scott free. wrong. or consider the riaa: their reason for being is to stop music piracy. their tactic of suing grandmothers and students of course has zero effect. but according to you, since their intent is unfulfilled, they can't be prosecuted on the grounds of having an legally questionable purpose (nevermind being prosecuted for the secondary damage to their main purpose, of extortion of people of limited means)
no, your entire argument completely disregards the notion of intent, which is a completely valid legal concept
if someone attempts to squash your freedom of speech, they have violated the spirit of the law, if not technically successful
and they are therefore wrong, morally, and legally
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
I've not perused these types of websites, but couldn't you post anonymously? To come after you, the doctor would have to prove that it was you posting, wouldn't they?
Another thing that occurs to me: Say you sign the paperwork in order to get service. The doctor botches it and you post an unfavorable review. The doctor sues you for breach of contract. Then the doctor has to see evidence of the botched procedure brought up in court and perhaps in the media. It seems like suing a patient would be a very dangerous thing to do. You might win the suit, but be left with no way to salvage your reputation.
Oliver's law of assumed responsibility: If you're seen fixing it, you will be blamed for breaking it.
I live in the UK, where I have no need of a contract with my doctor. I turn up, he treats me, I go away without signing a contract or paying a penny. I can say anything I like about him as long as it's not defamatory.
I piss off bigots.
Businesses have people signing NDA's! They're taking our first amendment rights!
Consider that doctors are forbidden by Federal HIPPA laws from responding to or even acknowledging that they have treated a given patient without that patient's written consent. It really is not fair that the patient is able to post whatever review he wants about a doctor on some website, yet the doctor is forbidden from posting a counter argument or defense of himself against this patients claims.
Perhaps the patient ignored the doctor's advice, skipped checkups, won't stop eating nachos or failed to take medication which contributed to his opinion of poor service from the doctor when in fact it wasn't the doctor's fault. It seems only fair that when a patient publishes a public complaint against a doctor the doctor should be able to publicly address those complaints to clear his name.
I think that people have the wrong idea about contracts. Contracts don't make it so you CAN'T do something, they just make it so there are possible consequences for it. If I signed a waiver and then posted about the doctor this merely (possibly) gives him the right to take legal action for it. But in that regard the damage is already done. As we have witnessed countless times, once something it out on the web, the harder you try to suppress it the more attention it attracts. It really boils down to do you think someone will act on the contract, and if so, how bad are the possible consequences.
How can a contract's validity depend on the contents of other contracts. A contract ought to be valid or invalid in itself, subject to any appropriate legislation. A contract's validity depending on the behavior of other actors is fundamentally unfair.
to a doctor. They can try all they want, but it won't hold up in court.
They're using their grammar skills there.
This is why the movie Sicko! was so popular and why the idea of health care reform is becoming more and more popular, despite attempts to categorically dismiss it as a "socialist" idea. People have enough problems getting proper medical care without having to worry about whether your doctor is going to require you sign away your rights in order to get treatment.
On one occasion when going to see a specialist for the first time, I was presented with the usual stack of paperwork before I was allowed to see the doctor. Luckily, I have an annoying habit of reading a document before I sign it, as one of the documents was (as another reader has described) an agreement to waive my right to sue for malpractice, and to instead agree to arbitration of their choosing. I signed the other documents and told the receptionist that I would need to have my lawyer look over the waiver before I would sign it, and she responded "Oh, okay. Just bring it in whenever; it's optional, anyway." Optional? Then why was it buried in this stack of required paperwork?!? (Yes, that question is rhetorical.) Needless to say, I opted not to sign it, and I got to see the doctor anyway.
This is the last thing that the health care industry needs right now as it battles a PR campaign against movies like Sicko! and all the various "investigative reporters" for everyone from your local news to CNN. My wife and I even made our own short film about it. (Go ahead; mod me a Troll, I don't care.)
- Dave
Evil is as eval("does");
In one case, the doctor was not listening to me. I know because I flat contradicted him twice, and he just continued. I had no confidence in his recommendations, since they were based on assumptions that simply didn't apply to me. (Turned out that they were good anyway, on talking to another doctor, but I had no way to know that.)
That is an example of something relevant to medical performance that I can observe and comment on. It's not merely courtesy or idiosyncrasy (like the oncologist who always looked away when talking about cancer).
I will admit that this isn't common, and that most complaints will be about things like refusal to give antibiotics for a viral infection, but anybody halfway intelligent will know what to look for.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes
I mean, how likely are you to be able to refuse to sign this, if your health is at stake?
How likely is it period to expect your physician to put this form under your nose before being willing to help you? It seems somewhat comparable to a EULA in that regard, seeing that there is no way to test the product other than by 'buying' it first. Can that be binding?
the NDA comparison doesn't seem to apply, since you don't generally sign NDAs in life-threatening situations, or situations in which you are perhaps intentionally kept uninformed of the consequences of signing such a thing.
And what happens then? Can your physician refuse to treat you? Can he do so always, only in 'non-life-threatening' cases, or never? It seems very murky, medical ethics-wise.
Yeah...the problem is that 1.3 million people have said a variation on the same thing, before you...it gets old.
It is pitch black. You are likely to be eaten by a grue.
If a doctor wants you to sign it, they suuuuuccckkk.
If you are looking at ratings, look at more than one.
If a doctor does Good, please mention it to the ratings.
The problem is the AMA has shielded BAD TERRIBLE Doctors from being found out.
They get lawsuits sealed and keep on issuing credentials to worst 2%.
The worst Doctors account for a huge percentage of the lawsuits.
The AMA protects them, we can't find out who they are.
When I'm trying to fix a technical problem with a computer, there's a series of questions I ask the user. At some point enough things fall into place that I'm able to deduce the problem, and what the user is saying simply becomes noise (at least until I confirm my diagnosis). A user trying to be tricky and contradict themselves at this point to see if I'm listening to them would probably be disappointed, but at least their problem gets solved.
Despite not listening to you, the doctor was able to make good, useful recommendations that you confirmed with a second opinion? In this case, I think it's simply a matter of different expectations. If you don't like how you're being treated then by all means go see another doctor. Hell a second opinion never hurts. This is not a case where you should rush out to give this doctor a negative review.
As has been noted here, almost every doctor accepts assignment to some government reimbursement program like Medicare or Medicaid.
Since "[a]lthough the First Amendment only explicitly applies to the Congress, the Supreme Court has interpreted it as applying to the executive and judicial branches. Additionally, in the 20th century the Supreme Court held that the Due Process Clause of the Fourteenth Amendment applies the limitations of the First Amendment to each state, including any local government within a state.".. it's likely that a case could be made that a doctor doing this is violating 42 USC 1983, depriving you of a civil right (due process, if not free speech) "under color of law", and that you could sue them personally for treble damages.
1983 is a *really cool* statute. Look it up.
So much for THAT. Talk about "Doctors with NDA Borders"...
(an aside... I just noticed in the slashdot page the Sprint/Sierra Wireless Broadband Modem. I don't know why Sprint won't admit it in the adverts, but the Sierra U598 works in Mandriva 2009, and in Linux using newest kernel... Use kppp to set it up and turn it on. However, there is no facility in Linux/Kppp to cumulatively track the usage, so unless you use packet sniffers, or capture tools, you won't know your up/downstream consumption for personal billing purposes. ~ 5GB per month is what they allow...)
Previously: "Linux... Toward the Sunrise..." Now: "Linux... Toward the-- No, now, part of Every Sunrise"
People aren't computers. You're fixing the computer, not the user. The doctor's job is to treat the person, not to maintain an object. They owe that person respect.
That ought to fix it.
What happens when you have a hypochondriac who decides, irrationally, to go "after" a doctor who's treatment he did not like, did not think worked or whatever?
It becomes a bitch to deal with.
I checked out my tax situation with KPMG Peat Marwick before I came.
Gasoline is way higher, all of it taxes, but then I drive way less, because another thing the UK has is ubiquitous public transport.
VAT is about 10% higher than California sales tax, but the main effect of this is to prevent me impulse-buying crap I don't need anyway.
I piss off bigots.
With my old HMO I was lucky to see her the same WEEK. The last time I asked for a physical in the US I was given an appointment six months in the future.
I piss off bigots.
...doesn't mean it's enforceable, or even legal. Clauses that violate a person's civil rights are never binding, even if accepted willingly.
If it's not an emergency, I won't sign such a form, and if the doc doesn't like it, there's others. If it IS an emergency, I'll sign, write the bad review if I get bad service, and argue about unconscionable terms later.
If the state doctor's association convinces every doctor in the state, or my insurance company convinces all its member doctors, to require such a form, I'll post the bad reviews under a pseudonym. If they're going to collude, I'm going to cheat.
Your company provides you with health insurance. The health plan is your typical HMO. You don't get to choose your doctor. This is not an unusual situation. So what options do you have if they insist you sign one of these things? Your choices are sign it or not get any medical help at all. And don't say you have the option of paying for your own medical coverage. Have you seen the price of private medical insurance?
-- Will program for bandwidth
...the f#*$.
If it is an agreement, both parties must agree to the conditions. It could be argued that your modified agreement, which was a contingency of receiving services, was accepted when they rendered services. That is their only acknowledgment, as they do not sign the agreement and provide you a copy. You receive services or you don't. It is a weak agreement, but an agreement nonetheless. Since all parties may make changes, subject to approval, there is no wrong in making the change and initialing it. The only drawback is if you do not retain a copy of your change for your records, it may be contested - especially if they only retain a "signature" sheet and not the entire agreement from you.
Is it just my observation, or are there way too many stupid people in the world?
My wife and I are expecting our first child, so we recently had to find an OBGYN. After working with a new doctor (who is great by the way) for a few weeks we came across this on ratemd.com:
:)
"several times while visiting her office, she had asked me if I wanted to sell my child into polish sex slavery. Indeed, I told her know. As I walked out of her office, there were several FBI agents serving a warrant upon her place of business. "
I don't know whether to tell the doctor or spare her the stress, as I understand ratemd does not take down postings. Needless to say, we have yet to be propositioned
very good doctors that don't have excellent people skills, very good doctors that are jerks because they think they are so good
There's a reason why "bedside manner" has been considered an important skill since Hippocrates. Until we have a Star Trek medical tricorder that can tell us ABSOLUTELY everything that's going on inside a patient's body, then you're going to have to rely on patient reports for much of your diagnostic information.If your people skills are so bad that you can't hear your patients, or you engender so little trust that they don't tell you what you need to hear, then you aren't getting the whole picture, and that by definition makes you a bad doctor.
There's a reason why Gregory House works with four other doctors.
Beyond that, arrogance in a physician is LETHAL. Arrogance makes you secure in your first conclusion. Arrogance makes you resistant to disproving your own hyptheses. Arrogance means you don't consider new information, or information that contradicts your first assumptions. I wouldn't be surprised to find out physician arrogance was a leading cause of malpractice suits.
He put his boots up on the table and made a face. "The sig," he smirked. "You can waste your life in search of the sig."
Posting a truthful negative review would validate what the patient knows, and what many consumers know - but who often ignore their own knowledge. They can keep ignoring it if not allowed to state the facts. There is no guarantee of good medical care, a diagnosis, proper or effective treatment, or even surviving medical testing or treatment. It is, however, pretty much guaranteed that any treatment requires payment regardless of the absence of satisfaction or performance guarantee. A dead patient is no reason for non-payment. Very little is required of the medical profession, but a great deal of money is required to pay these professionals.
That said, I can't see a skilled physician with integrity requiring the patient to sign away his rights.
Let's go back to to the fixing a computer issue. You ask the user what's wrong, then you check for the problem yourself (or just get started reinstalling the operating system, something doctors can't do). Maybe you open the computer to check the hardware. A doctor's job is to treat a person, and that person knows more than the doctor about what's wrong because it's their body. For the doctor to do their job they'd have to listen to a person to understand what's going on, and treat them properly.
Comment removed based on user account deletion
Anonymous
Doctors are legally forbidden to put up reviews of their patients online... What about their first amendment rights?
1. Someone must fix the healthcare insurance system before they can post reviews.
2. A patient's information is only important for someone who wants to extract profit out of him/her. Not too many people are interested in you as a patient. But many would be interested in you if you're a doctor of something that they need help with.
3. Patients outnumber doctors. Hence, an average number of reviews + lower standard deviation if patients write reviews of doctors.
FreeBSD bounties
by making sure every i was crossed and t was dotted...
What a wife! Isn't that how all lawyers work?!!!!
FreeBSD bounties
As a physician, I see no recourse that I could take if a patient decided to make a libelous statement about me. Someone could write something, but I couldn't write a rebuttal without violating patient confidentiality. Say someone posts something like "Dr. Magic_Dude was arrogant, rude, didn't address my concerns, and insulted me before throwing me out", I couldn't say "Just before this comment was posted, Mr. Johnson came to visit me as a new patient asking for Oxycontin. After discussion with his prior physician, I learned that he has a history of narcotics abuse, and has severe bipolar disorder. When I refused to fill his prescription, he stormed out of my office. He also required treatment for gonorrhea during his visit." Essentially, in order to defend your actions to the best of your ability, you would be required to break confidentiality. If anything, I would say physicians should change the contract saying that if you're going to start posting your medical encounters on the internet for all to see, then you waive your right to confidentiality and permit rebuttal by your practitioner.
Read before you sign. I have refused to sign a small number of documents in my life, all of which would have restricted my rights. Second line of defense, find another doctor, then post comments about the guy who couldn't BEAR the thought of negative comments. And, when you inform him that you are finding another doctor, don't forget to salute him - with one finger!
"Windows is like the faint smell of piss in a subway: it's there, and there's nothing you can do about it." - Charlie Br
You can say what ever you want in a contract. The problem comes when you try to enforce them. Here what can the doctor do? The are not allowed to disclose ANY patient information, including the fact that a certain person is a patient. In order for them to send a take down order they would have to acknowledge that the person posting the comment was a patient.
Sign the agreement, post something nasty and if they issue a take down or suit - sue them back and report them to the medical board. I don't think this will last too long.
LIVE, Love, die
that without that contract it's a little one sided.
How about if you post a review of your doctor online you waive your doctor-patient confidentiality rights?
You get to call him useless, he gets a chance to announce you're a paranoid sociopath.
Where I live I have never signed anything. I was in hospital, I was operated. All they did was explain some risks and rights. If they would have asked me to sign a waiver, I would have asked them if they intended to do a bad job.
Don't fight for your country, if your country does not fight for you.
If a Doctor drops such an agreement in my lap, I will be leaving the waiting room before I ever see him/her.
Any Doctor THIS concerned about his reputation is surely NOT earning that reputation for being a GOOD Doctor.
The GOOD Doctors have nothing to worry about, and thus, nothing to hide.
Only in America would you have to sit and read through contracts before seeing your Doctor !
Wake up guys, can't you realise what an uneccessary madness this is ? It's time for you to bring your medical care back from the 3rd world into the 1st world and nationalise it like every other sensible has done.
that person knows more than the doctor about what's wrong because it's their body.
The fixing a computer analogy is actually a pretty good one. Pretend the computer is the patient's body, and the user is their mind, and it works out better IMO.
Thinking of it like that, what do you want from the user? Not their theories of what might be the problem, or what they want you to do to fix the problem they've decided they have, but what, specifically, is going wrong with the computer?
Further than telling the symptoms the patient generally has no clue what's up, and it's at that point I think many people start to feel the doc isn't paying attention, because while they think they're being helpful, talking about something they googled or their cousin had or whatnot, they're not providing useful information anymore.
Exceptions surely exist, and there are nuances to the situations, but it really does remind me a lot of looking at a computer that clearly has a hardware problem while the owner is yelling that they have a virus and trying to get information despite the preconception.
If you can't see the value in jet powered ants you should turn in your nerd card. - Dunbal (464142)
My wife just had surgery this month, so I've been thinking about this some. I was a little surprised to see while looking up the address of the surgeon's office that Google had a number of user reviews on him--some good and mostly bad. Looking closely at them, I'd say that at least half were worthless (the authors were obviously unreasonable or ignorant), while the other half were of little value simply because they were unsubstantiated and there was no evidence that the author was in any way qualified to judge.
I certainly agree that "nice" and "skilled" are two different things at best loosely correlated. A big problem in medicine, as with a great many other fields, is that there is little objective, public information that one can use to make judgements. Probably our grad school admission exams (GRE, MCAT, etc.) are the last time any of us has been seriously vetted, and even those scores are not public information. (And furthermore, test scores would presumably have only a medium correlation with ultimate quality.)
There is objective evidence that as a group doctors in the US leave something to be desired. There was a recent NEJM study that indicated that in general they're only getting treatment about half right (as judged by expert scorers). In another study, adding a simple surgery checklist (the WHO checklist) cut patient fatalities in half. This would seem to indicate that medical quality is a lot more haphazard than we'd like to believe.
"Not an actor, but he plays one on TV."
Ever read your consent for treatment? You're already signing your life away. What's your rights compared to that?
Chewbacon
The Bible is like Wikipedia: written by a bunch of people and verifiable by questionable sources.
I'd consider it effectively duress for them to refuse to perform medical services if you don't bow down to their wishes. If someone grabs you by the balls and forces you to accept their terms before they give you medical help you desperately need, where's the consent? They have just as effectively taken away your rights by holding your medical care hostage as if they had slapped you in irons and forced you to sign at gunpoint.
This is compulsion, since medical care is, almost by definition, hardly a luxury. It's an essential good you cannot do without.
Also, this damn well better not be binding in emergency situations where consent to be treated is implied.
Except that that's not what happened.
I described my symptoms. The doctor then said two things about me that were false, and I contradicted him. He then gave me his recommendations.
In other words, he was proceeding from a demonstrably inaccurate model of the situation, and at that point I had no reason to trust his recommendations.
For your analogy, you deduce the problem, and completely ignore the confirmation, while saying things the user knows are wrong from actually going through the problem. My knowledge of physiology and anatomy is much less than the doctor's, but I do know when my feet hurt and when they don't, and if he tells me they don't hurt when they do I know he's wrong in what he thinks.
In your case, you deduce the problem, and deduce consequences you can check. I assume that if you tell the user that the flux capacitor is getting overheated, and either you or the user feel it and it's ice cold, you revise your estimate.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes