We recently came upon a business called “Medical Justice” that has its own website and is apparently operated by a former practicing neurosurgeon that gave us pause and raised ethical and other questions when we read on its website that it “offers proactive services that protect physicians’ reputations and deter proponents of frivolous medical malpractice lawsuits.”
Our suspicions further deepened as we read that “Medical Justice” claims that it “harnesses the principles of medicine, law, and business to defeat dishonest plaintiffs, unethical medical malpractice attorneys, and unscrupulous expert witnesses, using three key objectives: Deter frivolous medical malpractice lawsuits…Warn proponents of medical malpractice lawsuits with a strategic Early Action Program…Enable members to take corrective legal action or pursue such action in Medical Justice’s name when requested and appropriate.”
The website further promises, “If a frivolous case proceeds to court and results in a win for the physician, it is reviewed by other Medical Justice members in the same field of practice to determine whether the medical testimony violated professional ethical standards. If the answer is yes, Medical Justice directly pursues sanctions in extralegal venues. This benefit inures not only to the member in question, but also to all members, by preventing unethical parties from causing future harm to others. Medical Justice will also, if warranted, allocate up to $100,000 to pursue a countersuit directly against the proponent of the lawsuit.”
We read the promise of “sanctions in extralegal venues” and the additional promise of “up to $100,000 to pursue a countersuit directly against the proponent of the lawsuit” as thinly veiled threats against medical experts who may testify on behalf of medical malpractice victims.
“Medical Justice” apparently has drawn the attention of others who question its tactics and its intentions. A website maintained as a joint effort of the Santa Clara University High Tech Law Institute and The Samuelson Law, Technology & Public Policy Clinic at the University of California Berkeley School of Law states, “Medical Justice sells contracts to doctors—we call them “anti-review contracts”— that either expressly prohibit patients’ online reviews or permit patients to post online reviews so long as doctors can remove them whenever they want. In exchange for these restrictions, the contracts promise patients purportedly greater privacy. However, this privacy promise is illusory, and the restrictions these contracts impose on online reviews are a bad deal for patients—and everyone else.”
On November 29, 2011, the Center for Democracy & Technology, a public interest organization that advocates for free expression and privacy in communications technologies, filed a complaint with the U.S. Federal Trade Commission (FTC) against Medical Justice, alleging that Medical Justice has violated the FTC Act by committing deceptive and unfair business practices by “distributing form contracts for patients to sign that either prohibit patients from commenting online or posting reviews about the doctor, or assign a copyright interest in any online reviews to the doctor, so the doctor can get them removed from the web at his or her discretion. As a result, doctors can ban patients from warning others about problems they might have had, or have an unchecked veto power to remove reviews they think are unfair or inappropriate. If a patient doesn’t want to sign the contract, the doctor can refuse to give medical treatment.”
Medical Justice, which has about 3,000 members who are doctors and dentists, advocated the use of the contracts that it described as its “vaccine for libel,” recommending that its members have their patients sign the contracts that originally provided that patients could not post online comments without the doctors’ consent. After revisions were made to the contracts over time, the latest version granted doctors copyright permission to remove posts under certain circumstances.
The FTC complaint alleged that the contracts misled patients into believing that the contracts were intended to protect the patients’ privacy and would act as a deterrence to people posing as patients and writing false reviews. However, the alleged deterrence effect made no sense because those posing as patients and posting false reviews would not have signed the contracts in the first place. The FTC complaint alleged that the contracts would have a deleterious effect on consumers as well as ratings websites and that the contracts removed consumers’ control over the reviews they uploaded to rating sites.
The day after the FTC complaint was filed, Medical Justice announced that it was “retiring” its “vaccine for libel” contracts.
We believe that the only doctors who need to fear medical malpractice claims against them are those doctors who provide negligent, substandard care that falls below the level of care that similarly situated doctors would have provided under similar circumstances — if the doctors’ care was appropriate, then they have no basis to fear that a medical malpractice claim will be filed against them.
If you suspect that you or a family member have become the victim of medical malpractice, you owe it to yourself and your family to consult with a medical malpractice attorney regarding you possible medical malpractice claim.
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