I've argued before, in some post that I am too lazy to find, that a coherent scheme of individual rights necessarily recognizes an individual's ability to contract away his or her rights, if the price is right. The classic example is a confidentiality agreement. It's every individual's responsibility to determine whether the rights he or she is signing away are worth the particular mess of pottage he or she gets in return.
So, is heath care — or at least, health care from a particular doctor — worth submitting to a gag order?
Some doctors — and some patients — apparently think so. The Washington Post reports that some doctors are requiring patients to sign agreements prohibiting them from posting on internet doctor-reviewing sites:
In the past five years more than 40 Web sites, among them RateMDs.com, Angie's List, Yelp, DrScore and Vitals.com (motto: "where doctors are examined"), have begun reviewing physicians, providing information about one of the more difficult and important decisions consumers make routinely.
As these sites proliferate — a reflection of the hunger for information about doctors in an era where patients are expected to make sophisticated decisions about their care — questions about their usefulness, accuracy and fairness are intensifying. In some cases the freewheeling anonymity of the Internet has collided with the rights of physicians who are constrained by laws that protect patient privacy.
As a defensive measure, some physicians are requiring patients to sign broad agreements that prohibit online postings or commentary in any media outlet "without prior written consent."
As the Post points out, such agreements may not be enforceable in some jurisdictions, where courts are vigorous about refusing to enforce contractual terms that violate public policy [which is a separate dilemma for another time]. And the Post has a fair point that doctors whose efforts are falsely maligned online are severely constrained in their response speech thanks to patient confidentiality rules. But that difference aside, how are doctors differently situated than plumbers or restaurants or hair salons or car dealers or any other business rated by customers online? The doctors quoted in the article can't seem to articulate that — other than through a suggestion that the quality of medical care is too mysterious and complex for consumers to rate accurately. Moreover, exactly what "rights" are in conflict here, as suggested by the Post? The law recognizes a remedy — through defamation law — if someone makes a knowing false statement about me. But does that translate to an affirmative right not to be defamed?
My proposal: let patients sign such things if they want, though there is no guarantee any court will enforce them. But the best defense for doctors would be a broad exception to privacy laws permitting doctors to respond to specific allegations against them with as much information is reasonably necessary to refute them. Patients have no rational basis to expect privacy if they make public the facts of their care.
Last 5 posts by Ken White
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