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It used to be that word of mouth – good or bad – was the only thing healthcare professionals had to worry about when it came to a patient sullying their reputation.But the explosive growth of the internet and proliferation of websites that urge patients to rate and comment on the care they receive has caused some physicians to fight back by asking patients to sign a “mutual agreement to maintain privacy.”
The document prohibits patients from posting their opinions about the practitioner online. In recent years, the practice has sparked debate in the healthcare and legal community.
Is this a valid way for healthcare practitioners to protect their reputation in an era where just one bad review can spread far and wide within seconds? Are such contracts enforceable? And, will they hold up in court?
Based on recent rulings and opinions, the answer is most likely no, and here is why.
The Office for Civil Rights, which operates under the auspices of the U.S. Department of Health & Human Services, has clearly stated that a patient’s rights under the Health Insurance Portability and Accountability Act’s Privacy Rule are not contingent on the patient’s agreement with a healthcare practitioner.
OCR writes: “A covered entity’s obligation to comply with all requirements of the Privacy Rule cannot be conditioned on the patient’s silence. OCR required the covered entity to cease using the patient agreement that conditioned the entity’s compliance with the Privacy Rule. Additionally, OCR required the covered entity to review its Notice of Privacy Practices.”
In some contracts the agreement is conditioned on the use and disclosure of protected health information. It’s important to note that healthcare professionals are already bound by medical privacy laws including HIPPA.
If that’s not enough to convince a healthcare practitioner not to attempt to silence their patients, consider this. Even Medical Justice Inc., which launched the use of the agreements in 2007, backpeddled on its position and stopped offering the contracts to its clients shortly after a complaint was filed against it with the Federal Trade Commission.
The complaint alleged numerous problems with these agreements, not the least of which is that they prohibit freedom of speech. Such restrictions are highly disfavored by the courts and generally are only enforced to protect trade secrets or proprietary information.
In addition, such contracts fly in the face of free enterprise and competition, the purpose of which is to provide consumers with the ability to make free choices. When healthcare professionals tell a consumer that they are not allowed to complain, how else will competition be fostered? Such agreements only tilt the scale in favor of healthcare professionals by keeping information out of the marketplace.
Furthermore, by basing the provision of service on a patient’s willingness to sign the contract, a healthcare provider could find himself in violation of the American Medical Association’s ethical standards, which prohibit doctors from placing their “financial interest above the welfare of their patients” and “breaching their duty of confidentiality by identifying their patients’ names to enforce medical gag orders.”
Physicians who feel they have been wrongfully criticized in social media have numerous other mechanisms in place to counter that criticism. In addition, there are laws that prohibit slander and libel and those who feel they have been the target of either can do so in a court of law.
