Sufficient Scruples

Bioethics, healthcare policy, and related issues.

May 25, 2011

Doctors Censoring Patients?

by @ 12:02 PM. Filed under Access to Healthcare, Autonomy, General, Healthcare Politics, Provider Roles

Latest really bad idea in the medical marketplace: doctors demanding that patients sign a “mutual privacy agreement” that grants copyright to the doctor of any reviews or commentary the patient may ever publish regarding that doctor – in other words, giving the doctor censorship rights over any evaluations the patient may make of the doctor, such as on doctor-rating Web sites.

Even worse, this agreement is apparently the product of some sort of doctors’ legal service called “Medical Justice”, whose purpose is to¬† “(1) Deter frivolous malpractice claims; (2) Address unwarranted demands for refunds; (3) Prevent Internet defamation, and (4) Provide proven, successful counterclaim strategies to hold proponents of frivolous suits accountable” – which is to say, intimidate patients in order to give doctors a edge over them in any legal dispute. As Timothy Lee points out in the post linked above, their waiver policy is likely useless, and may be fraudulent: copyright assignment is usually granted in return for compensation, but given the somewhat coercive nature of this agreement (his dentist’s office manager actually threw him out of the office when he objected to it) and the lack of an employment-related justification for the claim on copyright, copyright experts he quotes say the agreement is likely unenforceable; also, the agreement claims to provide the patients with privacy guarantees that go “beyond HIPAA”, but in fact the particular (relatively benign) practices it covers are already banned under HIPAA, meaning the promises made to the patient in the agreement are not only worthless but actually false. But most patients won’t know those things, so the agreement still hampers their rights of expression even if it is unenforceable or even illegal. It gets worse: the agreement requires a “loser pays” financial penalty for any lawsuit (in contrast to standard US practice), making malpractice suits potentially financially ruinous for the patient, especially if the doctor’s insurance firm adopts the strategy of deliberately running up their own bills to create risk to the plaintiff¬† (see Goals #s 1 and 4 above!); thus it hampers the patient’s ability to seek legal redress in addition to imposing on their rights to seek and share information.

It’s hard to count how many things are wrong with this: creating an abusive caregiver/patient relationship as a pre-requisite to treatment; chilling patient free speech and access to information about caregivers; cynically twisting completely unrelated provisions of copyright law to straitjacket the healthcare treatment environment; inequitable restrictions on patients’ rights and legal remedies for harm; not to mention just plain fraud and deception. What seems most unnerving to me is that such a bizarre and intrusive instrument (signing away your copyright?) has entered the healthcare environment at all.

More and more healthcare becomes just like any other marketplace: primum caveat emptor has become the contemporary Hippocratic credo, and deceptive, misleading, and grossly one-sided terms of service rule every aspect of the treatment process, from privacy to quality of care to access to caregivers to prescription drug availability to the ability to seek compensation for mistreatment. Though this particular “privacy” agreement is abusive in new and strange ways, the erosion of patients’ rights and remedies is far, far gone already. Medical “privacy” now means only that you must sign a form granting your caregiver and your insurance company the legal right to violate your privacy at will; access to treatment is deliberately hampered by adversarial gatekeepers who use your own medical history against you; mandatory arbitration for malpractice, on terms favorable to the insurance company or doctor, is now a common requirement of many health plans. You have no choice but to sign away all these rights, since the ubiquity of their implementation in the for-profit medical industry, and the lack of choices most patients have regarding treatment plans and costs, means even those lucky enough to have access to treatment at all usually have no access to treatment under respectful and empowering terms. What is shocking in this new approach is only how bold and shameless it is. What is sure is that there will be more of that coming.

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