Many moons ago – actually in the aughts – Medical Justice advocated for “non-disclosure agreements” to address the emerging problem of negative online reviews. Online reviews in healthcare were just gaining traction. Our belief, then, was that the vast majority of physicians were defined by no reviews or a handful of negative reviews. And physicians were not free to respond. Any negative commentary was a one-sided debate. And doctors were becoming human pinatas. 

Regardless, we retired those non-disclosure agreements in 2011. We believed then, as we do now, that there are better ways to manage online reputations. The solution to pollution is dilution. Make it easy for your patients who are happy to post their stories. The silent majority should have a platform. And health care providers can respond online as long as they do so in compliance with HIPAA. This strategy has worked wonders for physicians who embraced them. 

Importantly, in 2016, long after we retired our version of such agreements, Congress passed, and the President signed, the Consumer Review Fairness Act (CRFA). That law made such form non-disclosure agreement void against public policy and unenforceable. It directed the Federal Trade Commission (FTC) to enforce the law, and state Attorney Generals to impose financial penalties.  

We have long recommended that if you have been using such agreements, stop using them. The CRFA made them liabilities. 

In 2019, the Federal Trade Commission took action against a Pennsylvania HVAC company, a Massachusetts flooring company, and a Las Vegas trail riding company.  Based on violations of CRFA. The FTC has continued its trend in non-healthcare related domains. Such as property managers, credit repair businesses, vacation properties, and more. 

What about healthcare? 

This brings us to the State of Washington versus Defendant Allure Esthetic (doing business under several names, including Alderwood Surgical Center), and its owner, Javad A. Sajan, M.D. The state Attorney General alleged that between 2017 and 2022 over 10,000 patients were presented with pre-service form non-disclosure agreements (NDAs). The AG alleged that these form agreements violated CRFA.  

There were several iterations of these NDAs. The first batch prohibited patients from posting any negative reviews – defined as anything “under four stars and any negative comments.” If breaching the agreement, the patient also had to agree to fine of $250,000, and “in case of a problem, to contact Allure and to allow a response from the business— “with my personal health information.”” 

The second iterations of NDAs were less onerous. It did not prohibit negative reviews. But the patient still had to contact the office and allow for a response by the business, again with the patient’s protected health information. Instead of a $250k fine, the patient agreed to pay actual monetary damages for any losses the business experienced because of the negative review. How that might be calculated is beyond me. Regardless, there was still a potential liability for patients who posted any negative review, regardless of its truth or falsity.  

The most recent NDA iteration restricted and likely prohibited patients from posting negative reviews. There was no financial penalty. 

The District Judge recently ruled.  

Finding no need for oral argument, U.S. District Judge Ricardo S. Martinez granted the State of Washington’s motion for partial summary judgment, finding that “the NDAs at issue clearly include language prohibiting or restricting patients from posting negative reviews.” The judge agreed that the documents at issue were precisely the kind of form contract envisioned by the CRFA—prohibiting or restricting the ability of individuals to engage in a covered communication, void from the inception, and also unlawful for the defendants to offer. “The State argues, and the Court agrees, that they were offered as identical form contracts on a take-it-or-leave-it basis,” Judge Martinez wrote. “It is indisputable that Allure’s pre-service NDAs were used in the course of selling services to patients.” 

The defendants argued that these were not “form contracts” and should not be covered under CRFA. 

Under CRFA, a “form contract,” generally means one with standardized terms that are: 

1. used by a person in the course of selling or leasing goods or services; and 
2. imposed on an individual without a meaningful opportunity to negotiate the standardized terms. The statute explicitly states that “form contract” does not include an employer-employee or independent contractor contract. 

The defendants argued patients had a meaningful opportunity to modify the terms of the agreements, and some did. Still, the vast majority made no adjustments. The judge concluded these were “form agreements” and within the authority of CRFA enforcement. (In contrast, if a physician and patient negotiate a one-off after-service agreement to have an isolated review modified or taken down, that is not a “form agreement.”) 

Financial penalties will be decided down the road. 

Interestingly, the judge’s decision did not discuss the HIPAA Privacy Rule protecting individuals’ health information. The Office of Inspector General for Health and Human Services may later weigh in on this topic. Regardless, I do not believe it’s a good idea to ask patients to pre-emptively agree to have their private information posted online to settle a debate.  

Broadly, you would be asking for the patient’s authorization to post a response, using their protected health information, if the patient posted online. To do so, you would need to obtain a formal authorization from each patient.  

A valid authorization must meet certain requirements.  45 C.F.R. § 164.508(c)(2); 

45 C.F.R. § 164.508(b)(3) and (c)(4). 

1. Identify the disclosing health care provider,  
2. Identify the recipient of the PHI,  
3. Label the purpose,  
4. Define an expiration date or event,  
5. Date, and  
6. Signature.  
7. The authorization must include certain required statements, indicating that failure to sign the authorization will not affect treatment or payment for treatment, that the patient may revoke the authorization at any time, and that the information may no longer be protected by HIPAA once disclosed pursuant to the authorization. The authorization must be a stand-alone document and the health care provider must provide the patient with a copy of the signed authorization. 

Here, the patient might decide to not sign that authorization, and you could not use that decision to avoid treating the patient. So, the savvy patient could just say, no thanks, not going to sign. 

Next, even if the patient does sign, they are free to withdraw their authorization at any time. They could sign the agreement, be treated, then withdraw their authorization, then post a nasty review. And you’d be back where you started. 

Finally, (and back to State of Washington versus Alderwood Surgical Center, et al.) the most important reason is that it could turn into a public relations nightmare. If a patient went to the media with that authorization form, particularly after you used that agreement to release PHI, the media would have a field day. As it is having right now. 

My larger point is that it is easier to use a scalpel compared to a chainsaw to address an isolated problem. There are ways to respond to select negative reviews without revealing PHI. If you release PHI to present your side in an online debate about your care, expect a pile-on.  

The take-home messages: 

Do not use form non-disclosure agreements in advance of providing services to your patients. With the passing of CRFA, since the end of 2016, these agreements have been against the law and unenforceable.  

Next, asking patients for permission to reveal the details of their medical record to respond to online commentary is likely to turn into a PR debacle. Importantly, the patient could just withdraw their authorization, and you’d be silenced. 

There are easier ways to achieve the goal of managing your reputation. Promoting the positive and managing the negative. While being compliant with the current laws. Talk to a representative at Medical Justice about how to do it. 

What do you think? 

Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2023 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.

We have a federal system, where states make their own rules regarding the practice of medicine. 

One criticism is that doctors can be disciplined in one state, move, then get a fresh start in another. The National Practitioner Data bank was designed to serve as a repository of information to make it harder for such physicians to escape scrutiny.  

Still, in many states, one can disclose what triggered some form of discipline, and receive different outcomes, depending upon the underlying “offense”, the actual restriction, and how much time has passed. 

A recent Texas statute aimed to limit this discretion by its Medical Board.   

HB 1998 reads,  

SECTION 6.  Section 155.003(e), Occupations Code, is amended to read as follows:

 (e)  An applicant is not eligible for a license if:

1. the applicant holds a medical license that is currently restricted for cause, canceled for cause, or suspended for cause[, or revoked] by a state, a province of Canada, or a uniformed service of the United States;
2. an investigation or a proceeding is instituted against the applicant for the restriction, cancellation, suspension, or revocation in a state, a province of Canada, or a uniformed service of the United States; [or]
3. a prosecution is pending against the applicant in any state, federal, or Canadian court for any offense that under the laws of this state is a felony or a misdemeanor that involves moral turpitude; or
4. the applicant held a license to practice medicine that has been revoked by the licensing authority in another state or a province of Canada for a reason that would be grounds for the board to revoke a license to practice medicine in this state.  

Interestingly, one interpretation is that if a physician loses his license in state X, and THAT state does allow the doctor to reapply for a license after sufficient time has passed, and its Medical Board is assured that the doctor can practice safely, well…

That doctor is still foreclosed from holding a Texas license.  

Meaning, a time-limited revocation of a license in one state can amount to lifetime revocation or lifetime ban on applying / receiving a Texas medical license.  

California, like many states, allows for “reciprocal discipline.” Meaning professional discipline by one state medical board can translate into parallel discipline by the Medical Board of California. Out of state discipline can still trigger in state California discipline even if the event which triggered out of state discipline would not have triggered in state California discipline. 

California Business and Professions Code Section 141 provides: 

“(a) For any licensee holding a license issued by a board under the jurisdiction of the department [of Consumer Affairs], a disciplinary action taken by another state, by any agency of the federal government, or by another country for any act substantially related to the practice regulated by the California license, may be a ground for disciplinary action by the respective state licensing board. A certified copy of the record of the disciplinary action taken against the licensee by another state, an agency of the federal government, or another country shall be conclusive evidence of the events related therein. 

Even in cases where the out-of-state action would not have been grounds for discipline in California, section 141 permits the Medical Board to impose discipline. In other words, Section 141, is the catchall statute designed precisely for the situation where the out of state misconduct does not mirror the disciplinary scheme in California such that the precise nature of the disciplinary action can be discerned (i.e., simple versus gross negligence). (Medical Board v. Superior Court (Lam) (2001) 88 Cal. App. 4th 1001, 1018-1019.) 

California SB 815 which took effect January 1, 2024 includes: 

A licensee whose license was surrendered or revoked for unprofessional conduct must wait five years to submit a petition to have their license reinstated, although the Board may specify in the disciplinary order that they may file such a petition after three years. 

Arguably, even with reciprocal discipline imposing a lifetime ban on a medical license in one state, California would still entertain an application for a license to practice medicine. That is not to suggest the license would automatically be granted. It wouldn’t. The bar would be high. And California would have discretion to say no. But, at least in theory, at some point, the application could be considered.  

Lawyers have considered the matter of lifetime disbarment. In one review article from 2007, Should Permanent Disbarment be Permanent, the article noted each state treats disbarment differently.  

According to Black’s Law Dictionary, “disbarment” is “[t]he action of expelling a lawyer from the bar or from the practice of law, usually because of some disciplinary violation.”22 The definition goes on to note that while “disbarment is typically [] permanent…, in some jurisdictions a disbarred attorney may [] petition for readmission.”23 If you were to ask the average, non-lawyer American if disbarments are permanent, they would likely answer “yes.” The public therefore might be surprised to learn that, in the majority of states, disbarments are not permanent.  As advocated by the Model Rules for Lawyer Disciplinary Enforcement (Model Disciplinary Rules), 25 most states treat disbarment as something of an indefinite suspension of a license to practice law-i.e., you lose your license but, if you behave and ask for forgiveness, the bar might permit you to return. 

In 2007, when this article was written, 

California officially became the 14th state to allow for some form of permanent disbarment in September 2006. 27 Courts in the remaining 35 states and the District of Columbia allow disbarred attorneys to apply for readmission in as little as three years. Bank robbers, drug ring participants and “black market baby brokers” have all managed to return from disbarment, but is it wise to allow these individuals to practice? 

Five states mandate that all disbarments be treated as permanent. Eight states allow for disbarments to be permanent in some situations. In these states, when disbarment is not permanent, readmittance can either be applied for in seven years,  five years or at any time, depending on the jurisdiction. Two states have no official procedure for permanent disbarment, but applications for readmittance are approved so infrequently that they are considered de facto permanent disbarment jurisdictions.  

The remaining 35 states and the District of Columbia have no procedure for deploying permanent disbarment. 43 There is, however, some variance in the length of time before a disbarred lawyer may apply for readmission. Massachusetts is the strictest jurisdiction, requiring that the disbarred lawyer wait at least ten years. Colorado has the second longest period at eight years, followed by New York at seven, and Washington at six. The majority of the remaining states require a five year waiting period, while a few states require three, or have not established any pre-determined length of time. While states have established many different standards for readmission, California is the most recent to adopt permanent disbarment. 

As noted, the review article was published in 2007, and it’s likely the details have changed. Still, the article addressed the reasons, pro and con, for a lifetime disbarment. 

In favor of permanent disbarment: 

a. Permanent disbarment prevents misleading the public.

“The legal system exists largely on trust. The general public, while finding individual lawyers somewhat distasteful, has trust that the legal system as a whole is not an elaborate swindle. The use of permanent disbarment helps to strengthen this trust. The general public already assumes that disbarment is permanent.”

b. Permanent disbarment helps improve the public perception of lawyers.

“Lawyers traditionally rank low in public opinion surveys. As a profession, lawyers are not perceived to be honest or ethical. The lack of severe punishment for extreme wrongdoing only helps solidify that perception. A public awareness that unethical misconduct is punished severely will encourage a more positive perception of practicing lawyers.”

c. Permanent disbarment helps prevent danger to the general public.

“The recidivism rate for disbarred attorneys is distressingly high. Louisiana, for example, reported that 10 out of 23, or 44%, of lawyers who had been readmitted to the bar after disbarment found themselves facing new disciplinary charges. These numbers, while taken from a small sample, indicate that not every lawyer who is given a second chance deserves it. Furthermore, these readmitted lawyers are a more significant risk to the financial and legal security of the unsuspecting public than the remainder of the bar. The legal profession may be better served by prohibiting these disbarred lawyers from reentering the bar than by taking the chance that 50% of them might fail to live up to their ethical standards. The cost of this recidivism to the profession as a whole is simply too high.”

Against permanent disbarment: 

a. Redemption.

If a person makes a mistake, and later makes it right, they should not be punished for life.

b. The possibility of return encourages good behavior.

“Once a lawyer has been disbarred, he may encounter a sense of hopelessness. These lawyers have often been practicing law for their entire adult lives and may not have viable career alternatives open to them. If this is the case, and there is no hope for return, the possibility of that person obtaining an equally valid and valued position in society is low. Permanent disbarment could push such a lawyer into criminal activities, especially those to which his education may make him particularly well suited.”

c. Applicants for reinstatement already face a heavy burden.

“Every state bar that allows for reinstatement maintains discretion over which lawyers are readmitted. The state bars look at a variety of factors before approving a candidate for readmission, including whether underlying causes for the misconduct have been rectified, whether debts have been repaid, and the likelihood of future misconduct. In California, 97% of disbarred lawyers are denied readmittance. If permanent disbarment is meant to protect the reputation of the profession as well as to protect the public in general, why not simply allow judges to use their discretion to serve this goal? If a lawyer can prove that he is no longer a threat to the profession or to the public, there is no gain from forbidding him to practice. If judges have this discretion, permanent disbarment may be too inflexible a solution for the problem of lawyer misconduct.”

Being granted a license to practice medicine means the physician has been entrusted by society to properly serve the public. The state has an interest in protecting public health.  

Still, a lifetime ban is a heavy bar.  

What do you think? 

Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation. Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases. Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors. In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders. Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2023 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.