Medical Justice: Our mutual privacy agreement will stand up when the patient is federally insured

Regarding " 'Vaccine against libel' could have some side effects" (Article, June 9): Your referring to Medical Justice Inc. paraphrases comments by St. Louis University Law Professor Alan Howard. In the words of your article, "Asking someone to give up their First Amendment rights in order to receive goods or services paid for by the government is illegal."

We disagree with the premise that mutual privacy agreements between physicians and federally insured patients are illegal.

The proposition that physicians accepting Medicare are prohibited from requiring patients to waive their First Amendment rights is not grounded in law.

The case law is clear that constitutional limitations on the restraint of free speech apply solely to governmental entities. Physicians do not become governmental entities when they accept Medicare reimbursements.

Medical Justice does not mandate that patients give up their First Amendment rights.

Patients are free to report inappropriate medical care or treatment to state licensing boards, professional medical societies and third-party payers. They can even file a malpractice lawsuit.

What the agreement does seek to do, plain and simple, is prevent Web-based publications, either positive or negative, about the physician. That's because in the online world, doctors have no way to defend themselves.

Medical Justice seeks to ensure that patient speech flourishes within venues where everyone is reasonably accountable for their words.

Jeffrey Segal, MD, CEO and founder, Medical Justice Services Inc.

Michael Sacopulos, JD, general counsel, Medical Justice Services Inc.

Editor's note: In the Technically Speaking column at issue, Howard's comments were referring to whether a physician could use leverage to require a mutual privacy agreement from a patient receiving care under a federal program -- the prime example would be to refuse care to a Medicare patient unless the patient signed the agreement. His opinion, based on his reading of the law, remains unchanged. The specific mutual privacy agreement offered by Medical Justice has not been challenged in court.

Note: This item originally appeared at http://www.ama-assn.org/amednews/2008/09/08/edlt0908.htm.