Does That Hurt? Tough

[filkertom]

dbcooper alerts us to some medical professionals making their patients transfer ownership of any public commentary about their doctor/dentist or treatment to that medical provider. So that, for instance, you couldn't mention on FB or Craigslist how badly they messed up your teeth, or how much they charged for something, or... well, anything. Read the whole thing -- it's enlightening and appalling.

I'm very much with DBC on this: If you get one of those forms, do not sign it. If necessary, if they won't treat you without it, get up and leave. If they try to shove it under your nose in the E.R. while you're bleeding out on the floor, scream for help and bellow, "WHY ARE YOU MAKING ME SIGN A NON-DISCLOSURE FORM WHEN I NEED HELP?" And then contact the local TV news. Contact the Fox affiliate first.

Comments

[scifantasy.livejournal.com]

I heard about this yesterday, and I (with my newly minted J.D.--not that it's worth much than any other piece of fancy paper, especially fancy paper that I don't actually have yet, since here I am, back in my classroom, learning about torts all over again. Thanks, Bar/Bri) had the reaction others had: "Some contract writer is making a fortune bilking doctors." No chance those agreements can hold up in court.

[capplor.livejournal.com]

So, if I get handed one, I just tell the doctor that s/he has been fooled?

[scifantasy.livejournal.com]

I wouldn't say "just." The doctor has been fooled, but I'd also leave. Any doctor who wants this, even if he isn't getting it, doesn't deserve your business.

[capplor.livejournal.com]

I can agree to that, but I'd be inclined to ask them if they really know what they're asking from me. As someone said, they may have been bilked into it.

[scifantasy.livejournal.com]

As I see it, they were bilked into accepting an ineffective means, but the end--exercise of control over what patients say about them, for whatever reason--is not the sort of concept that you get tricked into thinking is good.

[kengr]

Me, I'd ask them to state that I *must* sign the agreement to be treated. And if they say yes, ask for it in writing. If they give me the written statement (unlikely) or if they refuse, the next thing I'd say is that I'll be filing an ethics complaint about them for having that requirement.

[palenoue.livejournal.com]

So would this be extortion? "Sign the form or I'll let you bleed to death," or "Nice teeth you got there, be a shame if something bad happened to them" don't sound like they'd hold up in court.

[shockwave77598.livejournal.com]

I'd mention that my professional writer rates apply and that first publishing rights are ALL that they can buy. And that my agent will get in touch with them about the contracts they need to sign in order to purchase the copyrights from me. The realization that they have to pay money to acquire a copyright should shut the whole thing down pretty quickly... some of your clients do make a living at writing and by necessity know the ins and outs of the biz, doc.

Seriously, do these people think that a simple scrap of paper makes anything they do legal?

[scifantasy.livejournal.com]

Generally, yes.

[admnaismith.livejournal.com]

No. It's a scrap of paper plus enough money to exhaust you through litigation that makes anything they do legal.

Everyone has their price. How many hundreds of hours of lawyer time are you willing to pay for before you just give up?

[dbcooper.livejournal.com]

And how many billable hours are the doctors willing to give up in the meantime?

And yes, theoretically, if every single doctor from whom I could get a vitally necessary treatment demanded I sign one of these felonious forms first, I would opt for death, even a slow, painful one, while publicizing the demands in a direct and specific effort to force those doctors to drop the idea or starve.

[kengr]

As I said above, tell them you'll be filing an ethics complaint because (as the article notes) requiring that form *is* a violation of medical ethics.

[dbcooper.livejournal.com]

That does beat dying, yes.

[alverant.livejournal.com]

It may hold up. You can speak out about it, but they own what you say so they can legally make you change or delete your public commentary. To run another example if you're hired to review a video game and you say it sucks, your boss could tell you to give it a good review because the game company is a big advertiser. You would have to change your review and it would not be covered under free speech. OTOH, you're being paid in that case.

This may be more of a way to intimidate people from giving bad reviews than anything.

[shockwave77598.livejournal.com]

Yes, but my response is to say that they don't get to own the copyright unless they pay for it, at the rates I dictate. And if they lose enough customers over it, they are going to be pretty hungry in very short order -- all for being unamerican. And to top it all off, HOW are they going to know that a post from Symbiont222 anywhere on the internet about his treatment is from me to enforce said copyright to begin with? How will he know that any post anywhere in the world is from me, hmmm?

Some scammer found a way to snooker the entire medical profession. I'm hoping they have the wits to realize it and ignore the whole scam as it's much ado about nothing.

[alverant.livejournal.com]

One could argue that the agreed upon payment for the copyright was the services you received.

As for knowing who made what review, it would take a little detective work but it's possible. For example we know that a bad review happened after the appointment so the time/date stamp of the review gives you a clue. Then you have the content of the complaint itself could give away who you are. For example if you're complaining about how a wisdom tooth was extracted and the dentist only had one client who had one wisdom tooth extracted in the week prior to that review it doesn't take a genius to figure out who wrote it. They may not be able to find who wrote all bad reviews, but they could get some of them.

That assumes the doctor has the time and/or resources to track down the bad reviews.

[shockwave77598.livejournal.com]

As I'm paying for the services, and my insurance company is too, that won't in the slightest bit float. Besides, I can't pay taxes in a barter system like that, which the IRS and the Insurance folks will be keen to get involved in it.

If my doctors or anyone else has so much concern about what is written about them, then they'll lose my business and earn the nasty posts that they are so scared of. I'll have no compunctions at all about saying that anyone so chickenshit deserves to have his betrayal of Hypocrites, his license, his American values and his loss of business held up high and roasted for all the world to see. Course, he could just do the job I'm paying him for, and I'll be as quiet as I have been so far...

Streisand effect at play. Trying to hide something on the Internet just calls more bad attention to it.

[sethb.livejournal.com]

One could argue that the agreed upon payment for the copyright was the services you received.

One could argue that. But that one would then be on the hook for income taxes for the values of those copyrights provided in return for one's professional services. I wonder if any of the doctors requiring those agreements is paying tax on their value.

[dbcooper.livejournal.com]

Oh, it's definitely an attempt to use intimidation to prevent bad reviews. However, I got this link from a comment on the Ars Technica article:

http://blog.ericgoldman.org/archives/2011/05/dentist_pays_fi.htm

[dornbeast.livejournal.com]

"if you're hired to review a video game and you say it sucks...OTOH, you're being paid in that case."

This is more like finding out that the End User License Agreement for Crappy Sequel 6 includes a "no bad reviews" clause.

[jovan-scorn.livejournal.com]

This seems more like a free speech issue. Does a review or an opinion of a business qualify as free speech?

And how does this jive with the a doctors and medical profession's own ethical requirements?

Seems like the first couple of times this happens some canny person will take the contract holder to court because he signed it under "duress" (I was in major pain because of a toothache/broken arm/corgi related accident) or had impaired judgement (pain again), and demand his "new writers fee" of $8 a word.

[admnaismith.livejournal.com]

I had a long conversation with Dr. Cirka's office manager, who insisted that the agreement was not intended to censor the truthful reviews of Dr. Cirka's patients. Rather, she said, it gave Dr. Cirka a tool to remove fraudulent reviews.

HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA
HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA
HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA

In this case, "Fraudulent" is defined as anything less than the five stars Doctor Cirka objectively deserves.

[antinomic.livejournal.com]

'Contact the Fox affiliate first', said by Tom. Words I thought I would never see....

[filkertom.livejournal.com]

Tell me about it. But they're the likeliest to jump on sensationalistic stuff, and I think this would count.

[alverant.livejournal.com]

I can see that. They also have a lot of paranoid viewers who would pay attention to a headline, "Is your doctor trying to take away YOUR rights?"

[palenoue.livejournal.com]

Change that to "Are _LIBERAL_ doctors trying to take away your rights?" and they'll replay the story every half hour and rant against it all weekend.

[awfulhorrid.livejournal.com]

Good point! May as well make them into something useful once in a while.

[stevemb.livejournal.com]

"You must use your powers of yellow journalism for good...."

[capt-video.livejournal.com]

Why does LiveJournal not have a "like" button?!

[jss]

[tigertoy.livejournal.com]

I'm not a lawyer, but I've spent a few decades watching the impenetrable antics of the legal system. In general, I see that the courts can find a way to argue that any proposition, no matter how perverse it may seem to some of us, is unassailably anchored in the Constitution, precedent, and existing law. It comes down to what they want the law to be. This is why we make such a fuss about who gets to be judges, even though if the system worked the way we tell our children in school that it's supposed to, it wouldn't matter that much.

From a liberal prospective, individual rights matter, and a contract that gives up indefinite rights is repugnant and in some cases invalid on its face.

From a libertarian prospective, contracts matter, and any contract entered into legitimately is valid and supersedes the rules that would otherwise apply.

From a conservative^* prospective, the rights of the rich matter, so a case would tend to come down to whether the individual getting bad treatment has more money than the medical establishment.

How the dispute is settled depends on which prospective is in control.

^*The original definition of conservative is seeking to conserve the rights of the aristocracy. We don't have a hereditary aristocracy in America, but we do have a privileged rich class which is functionally equivalent, and if we try to explain what conservative means today in terms of advancing the interests of that rich class, we get a very good match of what they actually do -- certainly better than the definitions they tend to espouse in their propaganda.

[terriwells.livejournal.com]

Thanks for linking to the article and posting this. I'm planning to write about it for work now; if all goes as planned, it will go live on Tuesday. It's connected in the sense that I write about search engine optimization, and from that angle this looks at least like an attempt to prevent any negative reviews from showing up when someone searches for information about a particular doctor or dentist. I admit, this is not as important as protecting the free speech rights of patients, but some SEOs may be able to prevent doctors from doing something like this (or get them to stop) when they point out that there are better alternatives.

[the-s-guy.livejournal.com]

Never sign any form someone won't allow you to take home with you.

[dan-ad-nauseam.livejournal.com]

I'd like to see the reaction of the Boards of Medical Examiners when they see this.

Of course, I'd like it to be:

"Call the AG's office! Find out if we have a rule that we can say prohibits these! If we don't, ask them to write one!"