Can Doctors Enforce Contracts Barring Public Comments on the Care They Provide (or Fail to Provide)

This month's ABA Journal includes an article that stunned me, and it is set out below. The gist is that some physicians are trying to use contracts to preclude patients from commenting in public media about the care they receive or do not receive. According to the article, the patient is limited by contract to filing a malpractice suit, complaining to the state regulator or telling friends (not clear what's ok there - can you email or just whisper softly to your friends in the confines of your home). Even more surprsing to me is that, according to the article, the AMA "takes no position" on the propriety of such contracts.


Even though I am a defense/corporate lawyer and am in general sympathetic to defense-side issues, the contract described by the article is to me a stunningly bad idea, and a contract of adhesion that courts can not and should not enforce when entered into prior to the care being provided. Suppose you have cancer and need treatment asap - how in the heck can anyone claim there is room for fair bargaining in such a situation ?

The AMA not taking a position is to me no correct. I cannot imagine our ethical rules for lawyers letting us do this sort of thing. I won't claim to be an ethics expert, but a quick flip through the rules brought caused me to focus on Illinois Rule 1.8(b. That rules specifically precludes lawyers from asking a client for rights related to publizing the facts of an engagement until the engagement is over. I presume that rule was aimed at blocking the lawyers from acquiring the rights to a sensational story as part of a retainer agreement, which is a somewhat different situation than teh doctor who is trying to avoid publicity. That said, the situations are alike in that clients cannot possibly know what is in their interest, or not, until the professional engagement is over, and so our rules block us from asking cleints to give up rights in advance. Rule 1.8(f) also is relevant as it precludes Illinois lawyers from seeking to limit our liability to our clients unless the client has separate counsel to evalaute that agreement.

I fail to see why doctors should be treated differently, especially when their mistakes actually can kill or badly injure a person. At least for civil lawyers, the worst we can usually do is to cost someone some moeny.

Comments anyone?


http://www.abajournal.com/magazine/a_prescription_for_silence/


Opening Statements
A Prescription for Silence
June 2009 Issue By Leslie A. Gordon

Once consumer websites began rating everything from restaurants to dog groomers, it was only a matter of time before doctors found their care and bedside manner critiqued online.
As many as 40 websites, including Zagat, Angie’s List and RateMDs.com, now feature anonymous, patient-written doctor ratings. Physicians say these unpoliced sites often publish unfair accounts that can destroy professional reputations. And, because the ratings usually are anonymous, doctors argue that the “patients” rating them may really be disgruntled employees, ex-spouses or competitors. Federal and state privacy laws prohibit doctors from responding, even to legitimate posts.

Now one doctor has figured out a way to help his colleagues fight back, but his technique has left some wondering about the legality of his tool.

Dr. Jeffrey Segal, a neurosurgeon and founder of Greensboro, N.C.-based Medical Justice, created mutual privacy agreements that prohibit patients from rating their doctors. Wiggling through loopholes in the Communications Decency Act, the agreements transfer to the physician the copyright on any online content about the doctor. Segal’s business has licensed the agreements to 2,000 physicians, and he says the “vast majority” of patients sign them.
If a patient violates the agreement, the doctor can try to enforce it by asking the ratings website to remove the post.

While the American Medical Association has no policy on these agreements, its president, Dr. Nancy Nielsen, says Web forums “have many shortcomings.” Segal says a credible system, akin to the one used to produce Consumer Reports, would verify patient status, evaluate only technical competence and require a minimum of evaluations “to soften the extremes.”
While First Amendment considerations don’t factor in, Sam Bayard of Harvard University’s Citizen Media Law Project questions whether copyrights to content that doesn’t yet exist can be transferred. But, he adds, “private parties can do what they like.”

So far the agreements have not been tested in court. But that has not stopped them from being—according to Segal—unfairly characterized as gag orders, even though nothing in them prevents unhappy patients from suing, speaking to friends or complaining to licensing boards.

Bayard says rating sites are valuable because “individuals can con- tribute to the dissemination of infor­mation. There are defa­ma­tion laws to redress speech that’s really bad.”
Invoking the “marketplace of ideas,” Bayard adds that the remedy for reckless speech is to allow more. “They are truly open forums. Someone else can come along and add a positive comment. It’s healthy.”

Product Liability Claimants Unhappy with Chrysler and GM Bankruptcies

An article in The Hill reports that product liability claimants are not happy with the developments in the Chrsyler and GM chapter 11 cases, so they are taking the issue to new fora - the Senate and the media. A similar article is in the WSJ blog known as Deal Journal. Specifically, they are upset that money is not being set aside to pay damages for pending product liability claims. Set out below is the relevant text from the article. The claims are said to be worth over $ 1 billion. One assumes the asbestos claimants are happy to let the car wreck claimants lead the charge on this issue. One also wonders who purports to speak for product liability claimants who have not yet been hurt, but inevitably will be hurt.

________________________________________________________

Lawyers cry foul over GM
By Ian Swanson
Posted: 06/02/09 08:19 PM [ET]
Consumer groups and trial lawyers are crying foul over the Obama administration’s bankruptcy plans for General Motors and Chrysler.
Those plans would extinguish all ongoing auto accident claims that blame a death or serious injury on a defective GM or Chrysler vehicle.
“It’s a raw deal for consumers,” said Clarence Ditlow, executive director of the Center for Auto Safety.
Ditlow said the plans are unusual in that they would prevent anyone from bringing a future liability claim against GM or Chrysler if a car already purchased from either company is defective and results in an accident causing death or serious injury.
He and others said it was also unusual for no money to be set aside for liability claims. When companies producing asbestos went bankrupt, some funds were set aside for such claims, Ditlow said.
Pam Gilbert, of Cuneo Gilbert and LaDuca LLP in Washington, said Obama’s auto task force should have looked out more for consumers and those with liability cases as it negotiated the complicated bankruptcy plans for both companies.
She notes that the administration is guaranteeing warranties issued by GM during its bankruptcy, meaning someone could get a broken exhaust pipe found to be defective fixed even while GM is in bankruptcy.
This means “they will fix the car, but if someone with a car suffers a serious injury or death because of a defection, we won’t fix the person,” Gilbert said.
Although a committee representing consumers and those with cases against the companies was involved in negotiations over Chrysler’s and GM’s bankruptcies, the group has received less attention compared to unions and those holding company debt.
That may change on Wednesday, when victims and families of victims with claims against the companies hold a press conference outside a Senate Commerce Committee hearing on GM’s bankruptcy.
Those set to attend include the family of an ABC cameraman killed when the roof of his GM Suburban caved in during an accident, as well as the families of several children who suffered broken necks and blame faulty seatbelts, according to the Center for Justice and Democracy, a New York-based consumer group.
Three hundred plaintiffs seeking $1.25 billion in damages are affected, another attorney told The Wall Street Journal’s ‘Deal Journal’ blog.
General Motors says claimants will have the opportunity to submit their claims and have them resolved “as provided by the Bankruptcy Code and other applicable law, both as to amount and priority.”
“We won’t discuss specific claims or the possible outcomes, as that will be determined by the court,” it said in a statement.

But those claims must be made against the old GM company after bankruptcy, meaning people with the claims will need to stand in line with other unsecured creditors to seek compensation from the old company’s remains, Gilbert said.
The new GM that arises out of bankruptcy will not be liable for those claims.
Ditlow blamed Obama’s auto task force for the situation, which he said would ultimately add to other problems.
He cited the case of a young girl in New York left a quadriplegic from a car accident who has $500,000 in annual medical costs. That victim is likely to become a ward of the state, he said.

Book from Belgium 1907 re Asbestos and Rubber

Full text here

Pdf image here - includes old photos of workers

Unknown Asbestos Mine on a Cliff in Corsica

Go here to Flickr

GM Bankruptcy Underway and the Asbestos Plaintiffs' Lawyers Already Have Appeared in Force

The free version of the GM docket is located here. The case is assigned to Judge Gerber, who has been handling the Thompson-Hayward asbestos bankruptcy. An Am Law Daily article here provides a nice summary of the lawyers and parties, except that somehow it missed the lawyers for the asbestos claimants.

At least some of the lawyers for asbestos claimants show up in docket number 81, which is an appearance filed by Sander L. Esserman and Peter C. D'Apice of Stutzman, Bromberg, Esserman & Plifka as counsel for the Ad Hoc Committee of Asbestos Personal Injury Claimants. The ad hoc committee is said to consist, "at this time," of asbestos personal injury claimants represented by the law firms commonly known as 1) Waters & Krause; 2) SimmonsCooper, 3) Weitz & Luxenburg, and 4) Brayton Purcell. In addition, Stephen Kazan of Kazan, McClain, Lyons, Greenwood & Harley is listed as an ex officio member of the committee.

In addition, docket number 114 is an appearance for asbestos claimants represented by Kelley & Ferraro.

Skinner Asbestos Bankruptcy Rejected As Collusive

The new opinion in Skinner is good news for opponents of the manner in which asbestos bankruptcies are currently conducted. Judge M. Bruce McCullough, a bankruptcy judge in the Western District of Pennsylvania, has issued a May 26, 2009, opinion finding the Skinner asbestos bankruptcy collusive and in bad faith. The order goes on to put the estate under the control of a court-appointed trustee, and converts the case to a Chapter 7 liquidation. The opinion is here.

The opinion is noteworthy for multiple reasons. For one, the opinion uses relatively harsh words regarding the lack of good faith in settlement of the underlying asbestos claims. Second, the Court concluded that the Chapter 11 plan and the underlying asbestos settlements were not enough faith. The Court pointed to various factors for this conclusion, and the opinion treats one of them as particularly telling. Specifically, the plan called for the debtor to receive 20% of insurance proceeds paid out to settle underlying claims, thus leaving the debtor with an incentive to settle claims instead of defending them, to the detriment of the insurers. The following text is taken directly from the opinion, but footnotes are omitted:

"The Asbestos Claims Settlement is not reasonable for several reasons. First, it is indisputable that no payment has ever been made by any of the Insurers on behalf of the Debtor to any of the Asbestos Claimants vis-a-vis the Asbestos Claims, notwithstanding that such claims have existed for roughly twenty (20) years. Such fact is strong evidence as to the futility of such claims, and it makes little, indeed no, sense to settle claims that have thus far been so overwhelmingly unsuccessful. Second, most, if not practically all, of the Asbestos Claims were administratively dismissed pre-petition by the U.S. District Court for the Eastern District of Pennsylvania, which court presides over such claims given that they were filed on such court’s Asbestos Products Liability Multi-District Litigation (MDL) docket. Such fact also serves to substantiate that such claims are not very strong, so that, once again, it makes little, if not any, sense for such claims to be settled. Finally, there is really no valid reason for the Debtor to even care if the Asbestos Claims get settled given that (a) the Debtor is defunct (i.e., out of business), (b) the Debtor will never again engage in business, (c) the Debtor is in bankruptcy, (d) no funds practically exist in the Debtor’s bankruptcy estate in any event to pay on any judgment that the Asbestos Claimants might obtain in excess of the Debtor’s insurance (hereafter referred to as an “excess judgment”), and (e) any excess judgment obtained would, therefore, be practically worthless. In light of the foregoing undisputed facts, it makes absolutely no sense for the Debtor to settle any of the Asbestos Claims absent the consent of the Insurers, and settlement without such consent (as is the case with respect to the Asbestos Claims Settlement), the Court holds, is thus per se unreasonable."

The Antithesis of Transparency - 90 Day Wait For Public Hearing Transcripts for Chrysler and Other Chapter 11 Cases, Such as Asbestos Bankruptcies

PACER is a great resource, and I am one of the many who are delighted it exists. But the absence of transparency in chapter 11 cases causes me to join with the numerous critics of PACER's ongoing flaws, many of which are well described and collected by Tim Lee at ars technica in an April 2009 online article. I also join with policy groups at Princeton and elsewhere which Mr. Lee identifies as arguing for the government to get out of the way with respect to matters of public interest and let the private sector provide information dissemination when the government does not handle dissemination well.

One of the flaws in PACER was particularly apparent this past week in the Chrysler bankruptcy, and also is a flaw of most chapter 11 proceedings. That flaw is the absence of quickly and freely available transcripts of bankruptcy court hearings in chapter 11 cases. The absence of transparency is particurly inappropriate in a case like Chrysler that is of great interest to hundreds of thousands or millions of people and businesses. The absence of immediate public hearing transcripts is especially ironic when the Obama administration has frequently and rightly announced that transparency in government is essential. One would think that policy could and should be carried over to major chapter 11 cases in general, and especially to a case the President has declared is of tremendous public importance.

What is the situation with respect to hearing transcripts? In PACER, the docket for this and most every other chapter 11 case is marked to indicate that a particular day's hearing transcript will not become publicly available for 90 days to allow time for redaction of personal information.

Why are transcripts not immediately available? An online Powerpoint from the federal courts explains that the delay in public access to transcripts is a function of judicial efforts to comply with a federal statute intended protect against disclosure of social security numbers, bank account numbers, and other similar personal information. Here is an example policy from one of the federal courts. The gist of the policy is that transcripts are embargoed from the online public docket until there has been an opportunity for parties to the case to request redaction of personal information, with the entire cumbersome process given an absurdly long 90 days. That extreme amount of delay is especially ironic when Chrysler has time and again announced that it intends to be in and out of chapter 11 in less than 90 days. A cynic night suggest that many of the players involved in chapter 11 cases do not want real transparency

Whatever the utility of the 90 days of delay policy may be in Chapter 7 cases filed by individuals, the policy plainly is irrelevant and counterproductive when applied to a Chapter 11 cases, especially ones of national significance. Worse yet, the absence of transcripts promotes secrecy and makes it harder for academics and other disinterested individuals to monitor government (court) actions that amy have a profound effect on millions of individuals. Indeed, as S. Todd Brown points out in his great 2008 law review article on asbestos bankruptcies, transparency is supposed to be paramount in bankruptcy cases, but is woefully lacking in reality:

"Throughout the history of bankruptcy law, transparency has been viewed as an essential element in maintaining confidence in the system. Although “[t]here is a strong presumption and public policy in favor of public access to court records” generally, “[t]he public interest in openness of court proceedings is at its zenith when issues concerning the integrity and transparency of bankruptcy court proceedings are involved[.]” Of course, transparency is not only a question of access to public records but also the open disclosure of critical information in those records. As Judge Bohm recently noted, “in order for the bankruptcy system to function . . . every entity involved in a bankruptcy proceeding must fully disclose all relevant facts.” This mirrors the First Circuit’s emphasis on full disclosure by debtors in bankruptcy:

The [bankruptcy] statutes are designed to insure that complete, truthful, and reliable information is put forward at the outset of the proceedings, so that decisions can be made by the parties in interest based on fact rather than fiction. As we have stated, the successful functioning of the bankruptcy act hinges both upon the bankrupt’s veracity and his willingness to make full disclosure. Neither the trustee nor the creditors should be required to engage in a laborious tug-of-war to drag the simple truth into the glare of daylight. In short, the integrity of the bankruptcy process demands transparency both in disclosure and open public records." (footnotes omitted)

So, how to make transcripts available quickly and cause real transparency for chapter 11 cases? The easy answer of course is for the federal courts to implement an exception to the general rule for redaction, and to permit/require automatic and more or less instantaneous release of hearing transcripts in Chapter 11 cases through either PACER or private information sources not unlike the "news pool feeds" used for other public matters. This exception and rule could and should apply to, for example, any chapter 11 cases involving any publicly-traded company or any bankrupcty estate with assets of over $ XXX. Hearings in cases of real magnitude are not spent talking about social security numbers or bank account numbers, and so much-needed sunshine should be applied to the hearings.

Another obstacle might be put up by court reporters complaining that making free transcripts available online will deprive them of income. The easy answer to that problem is to require the bankruptcy estate to pay the relevant court reporter a fee that provides ample returns for their work, but without a windfall. Large bankruptcy estates already pay tens of millions of dollars in fees to lawyers and other professionals, so paying court reporter fees should be a non issue.

As a partial fix for the problem, the court's website has a page mentioning that the Chrysler case is being used as a test for making available through Pacer online audio recordings of the proceedings. That's a good idea, and certainly worth continuing. But, that's not a real answer nor is it an effective means for causing effective transparency. Why? Because audio transcripts are far less useful than our paper transcripts. Why is audio far less useful? Because an audio transcript takes many hours to listen through in contrast to the ability to quickly scan through a transcript and/or run boolean word searches against a searchable transcript to find the name of the party of interest or the legal issue of interest.

In sum, transparency in chapter 11 cases is deeply impeded by the needlessly overbroad rules delaying - for 90 days - access to hearing transcripts from chapter 11 cases. The Obama Administration is rightly anxious to achieve transparency in government, and should act to fix the problem quickly. The problem could be fixed for the Chrysler case in about 5 minutes by asking Judge Gonzalez to issue an order requiring the estate to immediately post in PACER complete, searchable hearing transcripts. For the rest of the bankruptcy court system, the same sort of order can and should be issued in all chapter 11 cases involving public companies or section 524(g) of the bankruptcy code.