Trying to Muzzle Your Critics Online

Author: Mark B. Hartig

Some doctors and other professionals are slipping in so-called “gag orders” in their contracts for services to prevent their patients from criticizing them in online posts. What seems to have spurred this on are the proliferation of websites where patients can rate and critique their experiences with doctors and other professionals. Sites such as yelp.com, healthgrades.com, ratemds.com, vitals.com, and numerous others, invite people to rate their doctors on different criteria and allow them to leave comments about their opinions and experiences with them. Are these gag orders enforceable?

A patient of a New York dentist will soon find out, as he has filed a class action lawsuit against his dentist to try to get the Court to rule that his contract with her that promised he would not make negative comments about her online “is unethical, invalid and illegal.”

It doesn’t seem likely that Courts will uphold the validity of this attempt by doctors to prevent their patients from posting reviews of their services online as long as it is clear they are merely the “opinions” of their customers, or just factual renditions of their experiences. If they could, you would think hotels, restaurants, and many other businesses would have already slipped in these clauses from their customers. While a person can contract away their constitutional rights, (such as your freedom of speech), a good argument can be made that a clause that prevents consumers from sharing their experiences is against public policy and void.

It will be interesting to see what comes out of this case. If the Court does uphold the “gag order” expect to see them in many more contracts that you would enter into for services.

Barrick and Forth: The Pennsylvania Superior Court Reverses Course and Finds that Attorney/Expert Communications are Immune From Discovery

Author: Marc L. Penchansky

On November 23, 2011, the Superior Court sitting en banc issued its opinion in Barrick v. Holy Spirit Hospital, 2011 Pa. Super. 251 (2011). The full Court disagreed with a previous panel’s opinion and held that that communications between an expert and a party’s attorney were not discoverable.

By way of background, John Barrick was injured while in the cafeteria at Holy Spirit Hospital. Mr. Barrick sought treatment for his injuries from an orthopedic surgeon. That surgeon was later retained by Mr. Barrick as an expert witness in his suit against the Hospital. The Hospital issued a rather innocuous-sounding subpoena requesting Mr. Barrick’s complete file and medical records from the orthopedic surgeon. The orthopedic surgeon agreed to provide the medical records but did not provide the records that pertain to Mr. Barrick but were not created for the purpose of treatment.
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