“Deep down, I embrace calculated risk,” says former neurosurgeon Dr. Jeffrey J. Segal. That may explain why he was twice charged with malpractice for recklessly and negligently injuring two patients in Indiana (David Bedwell in 1996, and Mark Bachelor in 2001).
In response to the lawsuits, Dr. Segal quit his neurology practice to found Medical Justice Services, Inc. – where the risk continues with strategies so quirky they get laughed off the map (such as gag orders for patients), or so savage they read like hate literature (such as counter-suing an injured patient, or suing the patient's expert witnesses).
Does Segal have the “unique brand recognition” that he brags about? In a word: No. There are numerous websites which use the phrase Medical Justice in their title; all sites are independent of each other. But Segal has undeniably left his imprint on the courts, starting in 2011 when the Gag Contract was found non-compliant with HIPAA.
A legal avalanche followed: Public Citizen filed a Class Action lawsuit against a dentist who aggressively used Segal's Gag Waiver. The Federal Trade Commission placed Segal under investigation. Finally, U.S. Congress made new law via the Consumer Review Fairness Act which says: “This bill voids a contract from inception if it prohibits or restricts a party from engaging in written, oral, or pictorial reviews, or other performance assessment of the goods, services, or conduct of the contract holder.”
Ever dramatic, Segal elects to work on Battleground Avenue in Greensboro, NC. He rents an office in the small set-apart building, Stonebrook Office Center (left). His Healthgrades profile lists the address:
Dr. Jeffrey Jonathan Segal
Medical Justice Services, Inc.
3300 Battleground Ave - Suite 410
Greensboro, North Carolina 27410
Neurosurgeon Dr. Jeffrey Segal was first sued for negligence in 1996: The plaintiff who was injured (and died) was David Bedwell of Indiana. The case ended in 1998, whereupon an embittered Segal developed the concept of his malpractice plan Medical Justice Services, Inc.
In 2001 Segal was charged a second time with negligence: This plaintiff, Mark Bachelor of Indiana, sued because post-surgical complications required two corrective surgeries. Immediately after, in 2002, Segal decided to “commercialize his proactive professional liability service.”
His slogan boasts “Relentlessly protecting physicians from frivolous lawsuits” – a view tangential to Harvard School of Public Health which demonstrated that most malpractice claims involve real medical error and serious injury. There is disturbing evidence on Segal's company website that he does more than give priority to doctors; he declares ferocious war on patients.
Make no mistake: this is lucrative business for Segal. The pricing of his Physicians Shield Plan, cataloged by state and specialty, is publicly available. To explore the fee structure, visit his site, now named eMerit Medical Justice. In the top menu bar, click Purchase/Renew > Enroll Online. On the form which appears, fill in a geographic region and a specialty of interest. This will produce a table of fees, showing the start-up cost, plus annual dues reaching thousands of dollars.
Today Segal sells a single package: it contains his Physicians Shield malpractice plan bundled, at no extra cost, with a Patient Satisfaction Survey. But in 2011, Segal vociferously opposed patient ratings; to curb that trend he marketed to doctors a stand-alone Web Anti-Defamation Package. This, the infamous Gag Waiver, did not last long, but it pleased doctors (though not the public), and since it was priced separately from the malpractice plan it was quite profitable to Segal.
Segal offered his Web Anti-Defamation Package across all regions and all medical specialties at a uniform price, shown in the screenshot below. The Package had an upfront cost of $625 USD plus a yearly renewal fee of $499 USD. In a New York Times interview, Segal said: “About half of his 2,500 members use the agreement.” He was referring to the Mutual Agreement to Main Privacy, popularly called the Gag Contract. Segal sold this service from 2007 to 2011. Estimate the profit:
|MDs choosing the Web Anti-Defamation Package:||1,250 Doctors|
|Multiply by the upfront cost:||$ 625 USD|
|Suppose an average of 3 renewals each:||$ 495 (×3) USD|
|Total profit to Segal:||$ 2,637,500 USD|
|With stakes as high as this, there is no such thing as bad publicity.|
Segal's Web Anti-Defamation Package contains the template for a contract titled Mutual Agreement to Maintain Privacy. This is popularly called the ‘waiver’ because by signing it, the patient waives or surrenders free speech. Stripping the euphemisms away, this contract is a gag order.
The contract is designed to restrict patients from posting any negative review of an MD's practice, no matter how deserved. Typically, the contract stays “in force and enforceable” for five years from the last doctor's visit, or for three years after the doctor-patient relationship ends. There were several iterations of the contract. Below is one; a full collection is on Doctored Reviews.
“Patient agrees to refrain from directly or indirectly airing commentary upon the doctor and his practice, expertise and/or treatment … on the Internet, on blogs, or other broadcast media. Publishing includes attribution by name, pseudonym, or anonymously. Patient will not denigrate, defame, disparage, or cast aspersions upon the doctor and will use all reasonable efforts to prevent any member of their immediate family or acquaintance from engaging in any such activity.
The patient must sign the waiver before treatment. Subterfuge is common: the doctor or his staff may slip the waiver inside a stack of paperwork for patient history and insurance, or disguise the form as an addendum to HIPPA, or worst of all, present the form just before surgery to a patient groggy from pre-op meds. The signature is obtained under duress – when the patient is anxious, in pain, and psychologically vulnerable. Even during a crisis or emergency which shrinks the patient's options, the patient is told “sign or seek treatment elsewhere.”
The waiver quells a patient from writing publicly about his or her experience with that doctor, no matter what the outcome. Beware: Silence is solace to an MD deficient in clinical skills, or who may be a molester. After a grievous experience, a patient needs closure; and equally important, the public should be warned.
How can the patient agree, before the event, that a doctor's treatment will be so successful, and the outcome so benign, that no public comment will ever be necessary to achieve the ends of justice?
Oddly, the waiver ignores the fact that treatment has not even taken place yet. The only future actions that a person can predict are one's own: The person wielding the scalpel has sole control over the standard of care. How can the patient agree, before the event, that an MD's treatment will be so successful, and the outcome so benign, that no public comment will ever be necessary to achieve the ends of justice?
RateMDs.com – the doctor-rating site co-founded by John Swapceinski and Joanne Wong – had to fend off attempts at repression from this very Jeffrey Segal. So did a dozen other rating sites such as Doctor Scorecard and Angie’s List. But the arrogant ego behind the concept of gag waivers far exceeded their clout in law.
All rating sites declined to stifle negative reviews. In March 2009 RateMDs built a Wall of Shame listing the names of doctors known to make prospective patients sign a gag contract before being accepted at a clinic. From then to now, the Wall has accumulated only 17 names. Segal's New York Times interview allows us to calculate how many of his members actually used the waiver: the number is close to 1,250 doctors. Most of the waivers, then, were used in veiled circumstances.
“The gag waiver forces patients to choose between health care and their First Amendment rights, and I find that repulsive,” fumed Swapceinski. US federal law protects websites from being sued for publishing third-party content (see the Communications Decency Act, section 230). The intent of Congress in passing that law was to “promote the continued development of the Internet and to preserve its vibrant and competitive free market.”
Says Professor Roy Gutterman of Syracuse University: “The gag waiver would not hold up in court. The rating from a patient is pure opinion, and opinion is protected by the First Amendment in the USA. Anyway, doctors can't place gag orders on patients, because it is the patient who holds the privilege (the right to confidential communication).”
Chief Medical Officer of Crouse Hospital, Dr. Ron Stahl, adds, “There is no mechanism that tells you, that truly tells you, as a consumer: What's this MD like?” Dr. Stahl says that neither he, nor the hospital, use the services of Segal's Medical Justice.
Finally, patients ask: Were the gag waivers formed really to protect MDs from impudent patients with brassy mouths, or to protect MDs with a predilection toward things better left unpublicized?
Segal wants to limit patients to subjective comments (such as “this doctor is a jerk”) and trivial feedback (such as waiting times, parking problems, or whether staff are nasty). Segal claims that technical issues are beyond a patient's comprehension, and he would forbid patients from defining the quality of care.
Rebuttal: This attitude dawned in primeval eras when shamans jealously guarded all the knowledge in a tribe. Today, doctors create guilds to protect themselves from accountability to those they treat. That is not professional behavior; it is self-interested behavior, and ethically suspect. Clinical skills do need oversight.
Generally, physician performance is mediocre by the standards of evidence-based practice. A large study published in JAMA revealed that physicians have a limited ability to accurately self-assess. Confidence and skill levels are not necessarily linked. The most confident MDs, and the least skilled, share the same trait: ‘They don’t seem to know that they don't know.’
Rating-sites are designed as platforms for outside commentary, which makes them immune from defamation suits. Segal thus turned his eyes to copyright law. His waiver “assigns all intellectual property rights for anything the patient may write about the physician, to the physician.” This gives the treating MD exclusive copyright of any review which the patient posts about the medical practice – even anonymous reviews, and future reviews. In theory, when a negative review appears on the web, the MD would claim ownership of it; would invoke copyright protection (assert the right to decide where the work is published); and demand the review be taken down.
Rebuttal: The court is unlikely to recognize copyright infringement here. Patients and rating sites have a credible fair use defense. Copyright law exists to promote knowledge and the arts, not to stifle free public discussion or do an end-run around defamation law. What the gag waiver really does is censor those who have the most legitimate, valuable thoughts to share: the patients.
The contract that patients see bears a euphemistic title: Mutual Agreement to Maintain Privacy. In the media, Segal has inflated the terms of this Agreement, saying: “Patients are asked not to post to online rating sites without the doctor's permission. In return, patients are granted additional privacy protection above and beyond that mandated by law, including MDs refraining from giving patient-information to companies that may wish to market to people with specific diseases.”
Caution: This is a gimmick. Segal knows that any contract, to be valid in law, must be tailored to include an exchange. The exact words of Segal's Agreement say: When a patient signs, the doctor in return promises “not to find loopholes around the law regarding privacy of diagnostic records,” and promises “not to leverage his relationship with the patient by marketing products to the patient.”
The U.S. Office of Civil Rights was livid. They took legal action, forcing one doctor to stop requiring his patients to sign waivers in exchange for privacy protection that is already mandated under HIPAA (Health Insurance Portability and Accountability Act). The Civil Rights Office succeeded; the ruling is titled Private Practice Ceases Conditioning of Compliance with the Privacy Rule and concludes: “The Privacy Rule cannot be conditioned on the patient's silence.”
On WNYC Radio, Brooke Gladstone placed on record Dr. Segal's opinion about websites such as RateMDs.com which evaluate the conduct of physicians.
Gladstone “It seems extraordinary that a doctor would ask a patient to not express their opinion in advance of providing service.
Segal “I have no problem with a patient saying a doctor is a jerk. Where I struggle is when people start defining quality of care. Limit the commentary to subjective impressions as opposed to technical details. If indeed you want to post technical details online, it needs to be backed up by some type of expert evaluation.
Gladstone “Well, let's talk about the technical knowledge, the patient's perception of the care that they're getting. Doctors say patients really can't begin to judge the quality of complex medical care. Now, many patients say that this is a way that doctors have always shirked any oversight that doesn't suit them. They hide behind technicalities which are opaque.
Segal “Doctors need to take the lead in defining what is quality of care.
Segal promotes ‘defensive medicine’ as the means to avoid malpractice suits. In his words:
“Fear of litigation is ubiquitous. Physicians will do almost anything to avoid it. We will order tests, perform procedures, and recommend referrals, all to prevent sitting in front of a jury. As one ER physician put it, ‘I will scan patients until they glow if it will keep me out of court.’ We label this defensive medicine. Some defensive tests provide value to the patient. Some paradoxically put the patient in harm's way. Most of the time, no value accrues, just cost and inconvenience.
Mainstream physicians disagree with that view. Dr. Domenic Paolini, a Harvard trained cardiologist who is now an attorney, replied bluntly:
“Dr. Segal's position makes no sense. First, he admits to ordering unnecessary tests because he thinks the more tests he orders the less likely he will be sued. Where does this logic come from? Nobody expects him to order more tests, but everyone expects him to order appropriate tests, within the standard of care, to adequately diagnose and treat the patient's condition. Second, Segal obviously has never heard about utilization review where insurers refuse to pay for unneeded tests or tests that do nor conform to evidence based practice.
A field test: Three American states (Texas, Georgia, and South Carolina) increased the malpractice protection for emergency physicians, a group forced to work with incomplete information in a high-risk, technology-rich setting. This setting, if any, might lend itself to defensive practice and magnified costs. A decade later (in 2014) the RAND Institute for Civil Justice studied the impact of the legislative reform:
“We identified all ER visits to hospitals in the 3 reform states and in neighboring (control) states from 1997 to 2011. The malpractice reform did not reduce intensity of care. CT and MRI usage stayed level, as did the rate of hospital admissions. Emergency room expenditures in Texas and South Carolina saw no change, while Georgia saw a 3.6% reduction in per-visit ER Department charges.
Point to ponder: A Harvard University study found: Some patients pursue malpractice claims to find out why care went wrong because health professionals don't tell them.
Tuum Est - It Is Up To You
If the old wrong and all its
Haunts you by day and gives
your night no peace,
You may as well, agreeably
Give the new wrong its lease.
Edwin Arlington Robinson
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