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 three 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.