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Doctors Silencing Online Patient Reviews Via Contract

timothy posted more than 5 years ago | from the that's-one-view-of-the-1st-amendment dept.

Censorship 324

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!"

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324 comments

non-issue (5, Insightful)

Em Emalb (452530) | more than 5 years ago | (#27083331)

see subject.

You can't ban free speech, at least not in this country.

Although they're working on it.

Re:non-issue (5, Insightful)

Arthur B. (806360) | more than 5 years ago | (#27083441)

Freedom of speech includes the right to waive that freedom in particular cases. NDA's for example.

This is not censorship or a ban on free speech.

This is a questionable practice, it's doomed to fail because anonymity makes it unenforceable, it's counter productive, it's idiotic, but it is not a violation of freedom of speech.

Re:non-issue (2, Informative)

Em Emalb (452530) | more than 5 years ago | (#27083497)

yes, you're correct. However, it is a censuring of a "right" in that if I go to a doctor and receive treatment and don't like the treatment...I should by the inherent right of our freedoms be able to post my opinion about it.

This is lame. I'm so tired of hearing/reading about crap like this, it just frustrates me. How dare I voice a negative opinion about some stupid doctor's office? Please.

There outta be a law....:D

Re:non-issue (1)

Hordeking (1237940) | more than 5 years ago | (#27083599)

yes, you're correct. However, it is a censuring of a "right" in that if I go to a doctor and receive treatment and don't like the treatment...I should by the inherent right of our freedoms be able to post my opinion about it.

This is lame. I'm so tired of hearing/reading about crap like this, it just frustrates me. How dare I voice a negative opinion about some stupid doctor's office? Please.

Nothing a few disgruntled patients with high aggression levels won't fix.

There outta be a law....:D

Now you've gone and made me cry.

Re:non-issue (5, Insightful)

neapolitan (1100101) | more than 5 years ago | (#27083671)

As a doctor, I would just add that doctors that are nice, and doctors that are skilled, are weakly correlated. Patients are, in general, able to evaluate the first trait, but not as well the second. It is a shame, because misunderstandings happen -- you see every permutation: very good doctors that don't have excellent people skills, very good doctors that are jerks because they think they are so good, (technically) bad doctors that are really nice, doctors with substance abuse problems, patients that are completely unreasonable and on their fifth physician whom they will shortly badmouth, and good doctors that told the patient something honestly that they didn't want to hear, who subsequently leave and badmouth the doctor.

It's a very complex issue, and difficult to sum up in a little pithy paragraph or two.

What I would counter to this particular 'problem,' is, make a list of doctors who make you sign such contract, and post it for everybody to see. That would surely not be illegal, and just do not go to any of these doctors. It is like a prenuptial agreement -- I can see how it would be useful / essential for some people, but I wouldn't want to be anywhere near a situation that requires this.

Re:non-issue (5, Insightful)

DrLang21 (900992) | more than 5 years ago | (#27083937)

As a patient, I would just like to add that to any reasonable person (I know the existence of these patients can be rare) it's generally assumed that most negative feedback is first exaggerated, and second, not necessarily linearly proportional to the negative experiences. People are a lot more likely to go out of their way to write feedback when they are emotionally moved (ala, being pissed off). Good experiences don't often strongly move people emotionally... at least not like bad experiences can. So the point to take here is, don't worry too much about the negative feedback. Once enough doctors around you have feedback, it will not matter unless you really have a disproportionate amount of negative feedback, which should make you consider the possibilities that you really do deserve it, or that you are a victim of libel slander.

Re:non-issue (1)

Arthur B. (806360) | more than 5 years ago | (#27084253)

It is like a prenuptial agreement -- I can see how it would be useful / essential for some people, but I wouldn't want to be anywhere near a situation that requires this.

Quite the opposite, the prenup allows you to *keep* some freedom that you would lose with the default marriage.

Re:non-issue (2, Interesting)

fratermus (608212) | more than 5 years ago | (#27084391)

I'd say the agreement could be that the patient is free to post about the doctor. The patient agrees that doing so allows the physician to post, in public, about the patient. This should help us identify legitimate whistleblowers from Munchhausen whackjob hypochondriacs and whiners.

Re:non-issue (0, Troll)

mapkinase (958129) | more than 5 years ago | (#27084685)

doctors that are skilled, are weakly correlated. Patients are, in general, able to evaluate the first trait, but not as well the second.

For a Muslim, it's always fun to see "democracy" fail. /i haven't been trolling for a while...

Re:non-issue (-1, Troll)

jmccay (70985) | more than 5 years ago | (#27083823)

yes, you're correct. However, it is a censuring of a "right" in that if I go to a doctor and receive treatment and don't like the treatment...I should by the inherent right of our freedoms be able to post my opinion about it. This is lame. I'm so tired of hearing/reading about crap like this, it just frustrates me. How dare I voice a negative opinion about some stupid doctor's office? Please. There outta be a law....:D

Before you encourage Obama to take a away more of our dwindling rights, there is a democratic free market way this will get resolved--possibly. All it takes is some doctor to mess up, twice, and the second patient, or their family, sues the doctor and the associated medical institution involved for the mistake and not allowing the first patient, who had the same mistake, from posting about the problem. That could cause them to remove the clause. Basically, you make it more expensive for them to keep it in than to remove the clause.

Re:non-issue (1)

terraformer (617565) | more than 5 years ago | (#27083687)

Freedom of speech includes the right to waive that freedom in particular cases. NDA's for example.

This is not censorship or a ban on free speech.

This is a questionable practice, it's doomed to fail because anonymity makes it unenforceable, it's counter productive, it's idiotic, but it is not a violation of freedom of speech.

But if the doctor is paid in any way by medicare/medicaid or any other government funded source, they can not force this clause.

Re:non-issue (1)

neapolitan (1100101) | more than 5 years ago | (#27083897)

Reference? I don't think this is true... In general a doctor can not abandon a patient in need (ER doctor, rural doctor, etc.), and can not systematically discriminate (I won't treat Italians / African Americans, etc.), but they are free to treat whoever they want otherwise.

Regarding signing an agreement to post negative comments, I would think this requires a prior court case, because I doubt any such language in the Medicare/aid legislature rules are specific enough to be directly applied. I'm sure the wording of the contract the doctors are making patients sign is also ambiguous or specific enough ("electronic mass medium / internet webforum" or whatever term they used might have not even existed really when the medicare provision was drafted).

Alas, that is how lawyers make their millions and become parasites of the system in some ways, but do good things for many people in other ways.

Re:non-issue (1)

timmarhy (659436) | more than 5 years ago | (#27084451)

I think the issue is that since they are being paid with federal money, they are bound by the same restrictions as a government agency which means the just have to suck it up if someone bad mouths thems.

of course if this is entirely a private matter with no tax payers money involved it's the same as an NDA and would be binding. really i think it's stupid to pay any attention to online reviews of a doctor. people emotionally envolved in a medical procedure that went wrong won't be able to give an objective opinion on it.

so your position is (3, Insightful)

circletimessquare (444983) | more than 5 years ago | (#27083735)

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

Re:non-issue (2, Insightful)

Iluvatar (89773) | more than 5 years ago | (#27084561)

What you say about anonymity is really important.

Solving the problem at it's root would require that *both* doctors and their reviewers/patients can be held accountable for what they do or say, respectively. Reciprocity is fair.

However, the only thing such a measure will eventually achieve is to encourage anonymous reviews. An anonymous reviewer cannot be held accountable for anything.

In that respect this measure is just another example brain dead example of technology-blindness. It's not the first and certainly not the last, no surprise here!

Non-issue (1, Informative)

Anonymous Coward | more than 5 years ago | (#27083569)

Inalienable means âoeunable to be taken away from or given away by the possessor.â

Re:non-issue (4, Informative)

fm6 (162816) | more than 5 years ago | (#27083661)

The government can't ban free speech. (In theory, anyway.) Private individuals have more latitude.

I once lost a job after disagreeing with a political rant a customer was making. (I thought I was polite and respectful; the customer disagreed.) Abridgment of my free speech rights! But no, two different lawyers assured me that employer was well within his rights in regulating workplace discourse.

 

Re:non-issue (5, Interesting)

Em Emalb (452530) | more than 5 years ago | (#27083805)

Dude, been there, done that, except for the getting fired part.

Had a guy go off one time on the phone about Clinton's "cigar" and "I didn't have sexual relations" thing when I was on the phone with him. He asked me my opinion and I said I didn't really care, as his getting (or not getting) some nookie didn't have anything to do with the state of the country. He got really irritated that I thought that (should have said I have no opinion, in hindsight) and then started lambasting democrats, Clinton, etc, complete with f-bombs and all that. I just hung up on him. Not because I'm a Clinton apologist, but because I didn't care.

When they asked me about it, I said I accidentally hit the release button on my headset. They wanted to punish me for pissing off the customer, but since they couldn't prove the hangup was intentional, they couldn't. Win-win. I got to hang up on a butthead and received no punishment for it. (I quit that company not long after that) :)

Re:non-issue (1, Interesting)

Anonymous Coward | more than 5 years ago | (#27084367)

Arguably, the government is taking away your freedom of speech, in this instance, through its enforcement of contract law.

Re:non-issue (1)

LordEd (840443) | more than 5 years ago | (#27084239)

Question: Are they silencing your right to let the world know that as a term of being a patient, you may not review them?

Review: 3 stars out of 5

Rating only reflects my inability to rate doctor based on contractual requirements not to rate or review doctor publicly.

Re:non-issue (0)

Anonymous Coward | more than 5 years ago | (#27084427)

Wrong. Free speech means the GOVERNMENT cannot silence you. This is a contract between two private parties which you are free to not sign. Find another doctor if this bothers you.

First Amendment (4, Informative)

Jon_Hanson (779123) | more than 5 years ago | (#27083353)

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.

Re:First Amendment (5, Insightful)

Anonymous Coward | more than 5 years ago | (#27083429)

Ain't so simple as you make it. Courts have also ruled that free speech may not be banned by contract where there is a significant public policy interest in preventing this from occurring.

Whether this would be included would likely be decided in court, and indubitably appealed to the first court of record in the jurisdiction where the case was brought.

Re:First Amendment (-1, Redundant)

KiahZero (610862) | more than 5 years ago | (#27083481)

Guess who contracts are enforced by?

Re:First Amendment (0)

Anonymous Coward | more than 5 years ago | (#27083777)

whoever is agreed upon for a dispute resolution ( arbitration) not public courts. Taken to logical extremes, the voter sanctioned thin blue gang might get involved - but the first avenue of recourse is through arbitration.

Re:First Amendment (-1)

Jon_Hanson (779123) | more than 5 years ago | (#27083807)

Courts enforce contracts, not the government.

Re:First Amendment (3, Informative)

Anonymous Coward | more than 5 years ago | (#27083949)

Courts enforce contracts, not the government.

The courts are one of the three arms of government , you imbecile. (N.B. That wasn't flamebait, it was a flame, plus he deserved it.)

Re:First Amendment (1)

Jon_Hanson (779123) | more than 5 years ago | (#27084269)

Independent arm of the government that interpret and enforce the laws. I'm not sure why this was brought up in the first place because I'm pretty sure the government is not included in a contract between the patient and his or her doctor.

Re:First Amendment (1)

interiot (50685) | more than 5 years ago | (#27084149)

So NDAs and other trade secrets are unenforceable all of a sudden?

No. It doesn't matter who does the enforcing, it matters who the enforcing is being done on behalf of.

That's like saying "it's wrong for Citizen A to jail Citizen B in their home, so it's also wrong for the state to jail Citizen B for committing a crime against Citizen A". The state and the defendant are totally different parties, you can't do transitive math on them.

different question: could it be binding? (4, Interesting)

boombaard (1001577) | more than 5 years ago | (#27084369)

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.

Re:First Amendment (5, Interesting)

Chris Burke (6130) | more than 5 years ago | (#27083749)

Please stop claiming First Amendment rights when the government is not involved.

No, and I'm not going to stop until the government passes a law saying I can't. :P

Re:First Amendment (0)

Anonymous Coward | more than 5 years ago | (#27084189)

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.

The government limits who you may pay for medical services. It limits what those medical services are as well. These are not two private parties. This one extremely regulated party taking advantage of the party with extremely limited rights to unfair and ludicrous advantage.

Re:First Amendment (1)

poot_rootbeer (188613) | more than 5 years ago | (#27084191)

Please stop claiming First Amendment rights when the government is not involved.

Hey! I'm allowed to mischaracterize the First Amendment if I want to! It's a free country! Stop trying to take my rights away!

Signatures not required (4, Interesting)

dave562 (969951) | more than 5 years ago | (#27083355)

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.

Re:Signatures not required (1)

davinc (575029) | more than 5 years ago | (#27083583)

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.

Last year I wouldn't give a dentist my SS# prior to a cleaning, and was denied service. One of the most absurd thing I have seen in ages. They wanted my SS number more than they wanted my $100 I guess.

Re:Signatures not required (4, Informative)

SoundGuyNoise (864550) | more than 5 years ago | (#27083677)

IANAL....No matter how many forms you sign, you are legally protected from ever waiving your right to sue. Putting in a "no sue" clause is merely a formality that you recognize the seriousness of what you are about to do.

I have a company where my participants have to sign a release form. It's really more for our liability insurance. I'll even tell them they can't sign away the right to sue.

Re:Signatures not required (1)

agrippa_cash (590103) | more than 5 years ago | (#27084001)

IANAL either, but . . . You can waive your right to sue by contracting to have any dispute settled by binding arbitration. Even then you can sue, but you have to argue that the contract or arbitration should not be acknowledged by the court before you can sue for them amputating the wrong leg. I suspect that most state medical boards have some ethical prohibition on conditioning care on the patients subsequent behavior (other than litigation and payment), if they don't they should.

Re:Signatures not required (2, Interesting)

QuantumRiff (120817) | more than 5 years ago | (#27084203)

IANAL....No matter how many forms you sign, you are legally protected from ever waiving your right to sue.

No, that is not true. Mandatory Binding Arbitration has held up in court many, many times. You are giving up your right to a traditional court, and being forced to follow the rules and decisions of the arbitrator, who the company that makes you sign the contract gets to pick. (guess who they side with more than 90% of the time!).

Re:Signatures not required (3, Interesting)

ushering05401 (1086795) | more than 5 years ago | (#27083789)

You can actually take this advice pretty far, but you may need to fight to get services of certain sorts.

In a tough economy the candidates that return employment contracts with paragraphs lined through are setting themselves up for a fall.

I witnessed the pain of a contract non conformist first hand while working with a fellow - we can call him 'Mr. New Hampshire.'

Mr. New Hampshire refused to use his Social Security number for anything. Combine this with the fact that SS nums are the most overused weak authentication scheme ever devised, and many contracts 'require' an SS num... you can imagine the problems that ensued. Every single service this guy wanted including insurances of all sorts, I-9 employment eligibility verifications etc had to get routed through drawn out legal processes. In the end he would always get his way, but only three or four months after everyone else.

Re:Signatures not required (1)

B4D BE4T (879239) | more than 5 years ago | (#27083909)

Man, do I feel stupid now.

I recently had to see a doctor and was given this two-page contract that I assumed had to be signed before I could see him. It included both the ban on patient reviews and the section that you mentioned (stating that you agree to waive your right to a trial by jury). I sat there for a couple of minutes staring at the thing trying to decide whether I really wanted to sign it. I thought about asking whether I had to sign it in order to see the doctor, but I was pretty sick at the time and didn't want to put up with the hassle that could have followed. So, against my better judgment, I signed it.

Now I wish that I had at least asked. But at the time, I probably would have been willing to sign away other rights as well for a cure. I wonder, is it fair to ask someone to sign that kind of contract under those conditions?

Re:Signatures not required (1)

dave562 (969951) | more than 5 years ago | (#27083951)

IANAL, but a good one might be able to convince a jury that you signed under duress.

a word about contracts (3, Insightful)

pak9rabid (1011935) | more than 5 years ago | (#27083395)

Just because it's on paper and signed, doesn't mean it's enforcible in court.

Re:a word about contracts (1)

pak9rabid (1011935) | more than 5 years ago | (#27083447)

Just because it's on paper and signed, doesn't mean it's necessarily enforcible in court.

There, fixed that for me

Re:a word about contracts (5, Insightful)

Savage-Rabbit (308260) | more than 5 years ago | (#27083815)

Just because it's on paper and signed, doesn't mean it's enforcible in court.

Yes, but just because something isn't enforceable in court that doesn't mean it can't be used to bludgeon somebody into submission. Lawsuits are expensive. Theoretically justice is the same for everybody but in practice only the rich can afford a court case if it drags on for too long so de-facto the justice system mostly favours the rich.

First admendment does not preclude this,. (2, Informative)

Shivetya (243324) | more than 5 years ago | (#27083421)

The First Amendment protects your rights versus Government, not in contracts with others.

Get it right.

According to my business law prof... (5, Interesting)

imemyself (757318) | more than 5 years ago | (#27083439)

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".

Re:According to my business law prof... (1)

Em Emalb (452530) | more than 5 years ago | (#27083603)

Doesn't that opinion bother you?

Oh, not everyone is doing it, so it's okay.

Not really a fan of that mentality. I understand where he/she's coming from, but still.

Re:According to my business law prof... (2, Insightful)

CookieOfFortune (955407) | more than 5 years ago | (#27083695)

Because you can refuse and have the option to go to another doctor. If all the doctors were doing it, then you would have no where to go.

Re:According to my business law prof... (1)

imemyself (757318) | more than 5 years ago | (#27083817)

Yeah, somewhat. Though, she was just saying what she thought the court's view of it would be. From how she said it, I don't think she necessarily agreed with how it should be. I can see how it might be considered legal. NDA's are generally legal and you don't necessarily have the right to say anything you want (slander/defamation, false advertising, etc). It would be interesting to see the outcome of a case on this. I guess I feel that free speech is important in commerce so that a consumer can determine what product/service they want to purchase. Blocking free speech for this (and other agreements, like where Oracle tries to prevent people from publishing benchmarks) hurts competition.

Re:According to my business law prof... (2, Insightful)

forand (530402) | more than 5 years ago | (#27083739)

So you have to shop around for the doctor who will let you review them while you are bleeding out from a wound? This seems insane. I agree with your professors general thesis: that a business can put whatever limitations on its customers as long as such limitations are not on the face illegal nor so pervasive yet provide little to no benefit to the consumer that it is unfair to the consumer. However, in medicine this is not reasonable. It is not in societies best interests to make healthcare unaccessible unless you are willing to sign away rights even if you can pay for the service. If we are talking about general practitioner than maybe but it can never put the patient at increased risk to not sign.

What the fuck? (1, Insightful)

QuoteMstr (55051) | more than 5 years ago | (#27084005)

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.

I for one, bow down to my legal overlords! (-1, Offtopic)

Chris Gunn (1336847) | more than 5 years ago | (#27083445)

I've been dying to get to say one of these ;-)

Re:I for one, bow down to my legal overlords! (0, Offtopic)

overlordofmu (1422163) | more than 5 years ago | (#27084041)

To be clear, "Mu" is an English representation for the Chinese character which means "nothing".

So, unless you are non-existent, I have no power over you.

Re:I for one, bow down to my legal overlords! (1)

khellendros1984 (792761) | more than 5 years ago | (#27084371)

Yeah...the problem is that 1.3 million people have said a variation on the same thing, before you...it gets old.

Mark through and initial. (2, Informative)

fahrbot-bot (874524) | more than 5 years ago | (#27083467)

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 ...

Re:Mark through and initial. (1)

Imagix (695350) | more than 5 years ago | (#27084219)

Probably not since both parties would have to initial the amendment.

Re:Mark through and initial. (0)

Anonymous Coward | more than 5 years ago | (#27084627)

So what, if it's not a valid contract it can't prevent you from giving reviews.

Why? (0)

Anonymous Coward | more than 5 years ago | (#27083477)

I don't know why? I can't judge a doctor and I suspect no one else can either. Online review sites are the last place I'd go to find a doctor. If I have to get advice, I'll at least ask a friend. Granted I wouldn't sign one of these anyways.

Contract is POWERFUL (3, Insightful)

redelm (54142) | more than 5 years ago | (#27083483)

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.

First Amendment (-1, Redundant)

aztektum (170569) | more than 5 years ago | (#27083495)

Maybe I'm wrong, but doesn't the First Amendment only apply for to government bodies?

Reality check. (5, Insightful)

girlintraining (1395911) | more than 5 years ago | (#27083501)

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.

Re:Reality check. (1)

Em Emalb (452530) | more than 5 years ago | (#27083547)

He might get you for breach of contract

Since when did receiving and paying for medical care become a contract?

That's the thing that irks the snot out of me, it's a frigging SERVICE not a contract.

Re:Reality check. (1)

mea37 (1201159) | more than 5 years ago | (#27083685)

People enter into contracts to receive services all the time. What makes this any different?

Re:Reality check. (1)

Em Emalb (452530) | more than 5 years ago | (#27083707)

people also don't enter into contracts to receive services all the time, what makes this any different?

See what I did there? ;P

Re:Reality check. (1)

johnsonav (1098915) | more than 5 years ago | (#27083889)

people also don't enter into contracts to receive services all the time, what makes this any different?

When was the last time you received a service without, at least, a verbal contract? It's still a contract.

Re:Reality check. (1)

Peyna (14792) | more than 5 years ago | (#27084625)

If you exchanged something for those services, you technically did enter into a contract. It only lasted for a fraction of a second, but there was an oral contract. The contract being, I pay you X, you do Y.

Re:Reality check. (2, Insightful)

qbzzt (11136) | more than 5 years ago | (#27083781)

That's the thing that irks the snot out of me, it's a frigging SERVICE not a contract.

It only becomes a contract is you sign a paper to that effect, which most doctors' offices ask you to do. The contact is mostly so you'll be bound to pay your deductible and if the insurance denies them.

Re:Reality check. (1, Interesting)

Creepy Crawler (680178) | more than 5 years ago | (#27083589)

Well, one way to counter a non-compete is to make a counter offer that stipulates a paycheck for every normal pay period that is equal to what I would have gotten for working here, up to however many years.

Then you proceed to use that money for _not working_ to go back to school and get a better degree.

Re:Reality check. (0)

Anonymous Coward | more than 5 years ago | (#27083929)

Get real?

How about this... a Doctor more than likely makes more money than the vast majority of patients. His lawyers, already on retainer to handle the variety of legal issues common in any practice, are more than happy to rack up billable hours filing motion after motion against a patient in breach of this contract. Sure, IF it goes to trial, they might not be able to win. But are you aware of how many cases actually go to trial? And how many are quietly settled out of court under a veil of secrecy as part of that settlement?

The average individual, unprepared for a sudden barrage of legal attacks, is woefully unlikely to stand up, find a lawyer WILLING to take on such a case, and then doggedly outlast the attacking attorneys. Given that pro bono legal help won't be coming until there's significant exposure, and a chance of winning outright in a high profile case, and it comes down to simple, cold, calculating economics.

Can you afford to outspend your doctor on legal expenses? Can you fight not only breach of contract, but slander/libel charges, immediate collections efforts, and the possibility of your insurance company dropping you like a hot rock to avoid getting caught in the case? And given that most doctors pool resources to lower costs and increase services, expand this... can you afford to take on a large group practice? A hospital with dedicated on-staff legal experts?

Would you like the first thing you hear a doctor say, upon arriving in his exam room, "Oh, aren't you the guy that is being sued for badmouthing Dr. Smith?"

The vast majority of people lack the resources, will, and sheer chutzpah to take these kinds of risks with their life. Because it can have very long, very lasting effects on their life.

And that, is reality.

Consideration? (0)

Anonymous Coward | more than 5 years ago | (#27083565)

So you are giving them money in exchange for medical services. What exactly are they giving you in exchange for you giving up your rights to review them? There must be some sort of exchange of value, consideration, or the contract is void. They can't simply say that you are giving up the right for nothing in return and it stand up in court. Also, this may not be enforceable and could be ruled unconscionable.

Thank god for the NHS (1)

Patch86 (1465427) | more than 5 years ago | (#27083631)

Private healthcare seems to have some disadvantages.

The First Amendment would definitely apply if those doctors were employees of the US government...

I simply don't sign those sorts of documents... (1)

SmoothTom (455688) | more than 5 years ago | (#27083663)

...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

Re:I simply don't sign those sorts of documents... (3, Insightful)

maxume (22995) | more than 5 years ago | (#27083767)

Has this worked yet, or are you just, you know, hopeful?

Re:I simply don't sign those sorts of documents... (1)

SmoothTom (455688) | more than 5 years ago | (#27084083)

I HAVE "signed" documents in a stack of documents in that way and had them accepted, I have not yet had to fight anyone in court over whether or not something obviously not my signature is my signature. You're on your own trying it, of course...

--Tomas

Re:I simply don't sign those sorts of documents... (1)

SecurityGuy (217807) | more than 5 years ago | (#27084091)

IANAL, but perhaps you should talk to one. I believe anything you intend or represent to be your signature legally IS your signature.

Re:I simply don't sign those sorts of documents... (1)

vux984 (928602) | more than 5 years ago | (#27084477)

IANAL, but perhaps you should talk to one. I believe anything you intend or represent to be your signature legally IS your signature.

Clearly he doesn't intend the mark to be his signature so the intent requirement isn't met.
The leaves whether he represented the mark to be his signature. That's trickier... if someone hands me a document and says sign it, and I write in neat legible cursive 'terms declined' and hand it back... could you really say I represented that to be my signature, and not the rather plain rejection of the terms.

Combine that with anonymous posting...? (1)

interkin3tic (1469267) | more than 5 years ago | (#27083693)

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.

anonymous reviews, and consequences of suing (1)

roc97007 (608802) | more than 5 years ago | (#27083775)

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.

Not first amendment! (0, Redundant)

Mr_Icon (124425) | more than 5 years ago | (#27083851)

Repeat after me -- first amendment and other rights provided by the US constitution are ONLY applicable when you're dealing with the US government. When you are dealing with private entities, constitutional rights and freedoms do not apply (think, for example, Non-Disclosure Agreements -- which is pretty much all this is). Yes, doctors now insist on an NDA (for the purposes of CYA) -- that's a WTF, but not a violation of your constitutional rights.

Not my problem -- I have socialized medicine. (3, Informative)

EWAdams (953502) | more than 5 years ago | (#27083887)

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.

Re:Not my problem -- I have socialized medicine. (0)

Anonymous Coward | more than 5 years ago | (#27084043)

"I go away without...paying a penny."

And what is your total tax burden? (no such thing as a free lunch)

Re:Not my problem -- I have socialized medicine. (1)

Aphoxema (1088507) | more than 5 years ago | (#27084171)

But there has to be a catch somewhere! Right? RIGHT?!

I want socialized medicine too u.u

In other news (1)

Alarindris (1253418) | more than 5 years ago | (#27083903)

Businesses have people signing NDA's! They're taking our first amendment rights!

Re:In other news (1)

fuzzyfuzzyfungus (1223518) | more than 5 years ago | (#27084109)

Your analysis is facile.

Yes, NDAs are not (generally) a first amendment issue; but "NDAs for a variety of industry specific contract stuff" and "NDAs for something that virtually everybody will end up needing, possibly very badly, where making a less informed choice might just kill you" seem just slightly different somehow.

Just because two things look the same in very broad strokes doesn't make them equivalent in practice.

Level the playing field. (1)

ibpooks (127372) | more than 5 years ago | (#27083977)

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.

Re:Level the playing field. (0)

Anonymous Coward | more than 5 years ago | (#27084347)

When was the last time a patient mistakenly amputated the genitals of a doctor?

Problem with mindset (2, Interesting)

ParanoiaBOTS (903635) | more than 5 years ago | (#27083989)

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.

Give 'em a Break (0)

Anonymous Coward | more than 5 years ago | (#27084179)

While I don't agree the practice of trying to stifle speech, I also don't think the average person is qualified to assess a doctor's performance except in a few common areas like whether he/she treated you courteously. Because of sites like WebMD and shows like House, people come into the doctor with a bunch of preconceived notions and expectations that aren't really based in reality. Medicine isn't black and white, and given a set of symptoms you'll likely get different diagnoses from different doctors. Doctors have to put up with a lot of shit, let's give them a break.

Re:Give 'em a Break (1)

david_thornley (598059) | more than 5 years ago | (#27084321)

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.

Re:Give 'em a Break (1, Insightful)

Anonymous Coward | more than 5 years ago | (#27084653)

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.

can't sign away your first amendment rights (1)

DragonTHC (208439) | more than 5 years ago | (#27084207)

to a doctor. They can try all they want, but it won't hold up in court.

How to lose clients and alienate patients. (4, Informative)

Stealth Dave (189726) | more than 5 years ago | (#27084231)

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 [funnyordie.com] about it. (Go ahead; mod me a Troll, I don't care.)

- Dave

skip those doctors (1)

SirLanse (625210) | more than 5 years ago | (#27084395)

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.

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