From judydoc@the-spa.comTue Jul 14 15:22:31 1998 Date: Tue, 14 Jul 1998 10:34:18 -0400 From: judy morris To: judydoc@the-spa.com Subject: The Silencing of Physicians - The Truth is OUT We've all heard that physicians have to sign gag clauses but insurance companies and HMO's have either outright denied it or rationalized it as being in the interests of "lower premiums." Well now the talk is about eliminating these gag clauses in physician contracts. I say why stop there, let's outlaw ALL GAG CLAUSES in legal documents. They are used to obstruct justice, hide crimes, intimidate plaintiffs, and are no more than bribery just like the Mob engages in ("So, what say? We give you some money (or a job, or treatment, or whatever), you shudda up you face and don't tell what we did.") Anyway the magazine Hospital Physician, July 1998 - Article entitled "The Silencing of the Physician: Gag Rules in a Managed Care environment," by Julie Virgil Kind, JD and Bryan A. Lianf, MD, PhD, JD. OK, so why expose them now. Well Hospital Physician is a free magazine sent to doctors by DRUG COMPANIES. Drug companies have an interest in being sure physicians can discuss ALL TREATMENT OPTIONS including expensive drugs with patients. Well, it doesn't matter what their motives are - after all, no one cares when just plain old patients are getting screwed - but when drug companies are being deprived of their profits - NOW the truth comes out. So, I'm kind of getting a laugh now that HMO's and insurance companies are going to be challenged by drug companies, meanwhile insurance companies are finally suing tobacco companies. Their greed and manipulation of the system has set in motion what will definitely be a downward spiral towards chaos as these powerful corporations spend all their time and our money suing each other. Kinda funny. Anyway, the article is too long to post and they don't appear to have a website, so I'll just give you highlights. If you want further information Ms. King is an Associate at Latham & Watkins, Costa Mesa, CA. Dr. Liang is Assitant Professor of Law, Pepperdine University School of Law, Malibu, CA. "The number of managed care organizations that include gag rules in their contracts is uncertain, but at least Choicecare (Cincinnati, OH), HIP of New Jersey, CIGNA Healthcare (Phila, PA), and Health New (Woodland Hills, CA) 'routinely require providers to sign them.'" "A spokesperson for ChoiceCare of Long Island stated, 'almost all, if not all, managed care firms have confidentiality clauses'" "William Sandberg, Executive Director of the Medical Society of the State of New York adds, 'to one degree or another, gag rules are in almost all the HMO-type contracts that I've seen'" Here's what they say: Aetna Inc., now merged with US Healthcare "Physicians shall address any disagreements, disputes or other grievances...to Aetna...In no event shall [the physician] disclose to or discuss...such disagreements..with members, payors...representatives of the broadcast or print media...or any other person or entitiy. Nothing in this section is intended to prohibit communications necessary or appropriate to ther ordinary conduct of business." Kaiser Permanente (Cleveland, OH) "Do NOT discuss proposed treatment with...[health plan] members prior to receiving authorization. Do NOT discuss the [utilization oversight] process with members. Do NOT give out [plan's oversight] phone number to members." CareFirst Health Specialist (Myrtile Beach, SC) "All records and proceedings..shall be confidential and..shall not be disclosed to policy holders, insured persons, or any other person." Other clauses prohibit physicians from even suggesting they might have reservations about a health plan "Physician shall agree not to take an action or make a communicaiton which undermines or could undermine confidence of enrollees... in [the plan] or the quality of [the plan's] coverage." And on and on. There are many permutations of this scheme but basically what it boils down to is that the insurance company makes the decisions, the doctor must ask permission before he can advise you of any treatment, he can't discuss the grievance process or assist you with it, he can't approach the media, he must refer to plan physicians even if he knows they are incompetent, and can't tell you what he knows. Physicians who fail to follow the rules risk, at the least, delisting and losing a substantial portion of their practice, and at worst the fear that the company might actually try to sue them for breaking these UNCONSCIONABLE CLAUSES. As we know, the plan assumes NONE of the liability, either contractually or by way of the ERISA loophole. The AMA's Council on Ethical and Judicial Affairs states "gag rules unethically interfere in the physician-patient relationship...patients cannot be subject to making decisions with inadequate information...that would be AN ABSOLUTE VIOLATIONS OF THE INFORMED CONSENT REQUIREMENTS." The article goes on to say which states have proposed legislation to BAN gag clauses in physician contracts. What about gag clauses in insurance settlement contracts??? The PARCA legislation will give patients with HMO's the right to sue for punitive damages despite ERISA. What about those of us with disability insurance who are screwed by ERISA??? The principles ARE THE SAME. GAG CLAUSES ARE UNCONSCIONABLE. THE ERISA LOOPHOLE IS UNCONSCIONABLE because it is fostering an environment that allows outright fraud and extortion by insurance companies. Why are UNCONSCIONABLE policies and laws being upheld by the courts of this country???? Well, I guess I answered my own question. I don't want to get into abortion and death penalty debates and the relative merits of any war the government decides to send our people to fight, but I'm beginning to see their points. Unfortunately I think there are differences here. These issues having more to do with the moral will of the people whereas the insurance issues have only to do with the profitability of insurance companies and the intense lobbying and financial contributions of their paid lobbyists. My personal feeling - any time you have an environment that promotes secrecy, you are going to be promoting unethical and/or criminal behavior. That is why I am talking. Sure they will use my words against me, but if I can ever get my story in front of a judge or jury (surmounting all the legal technicalities UNUM will use to try to get rid of my case, as they are doing in all your cases), the truth will be easily recognized. The reason they have gotten away with it for this long is BECAUSE of the GAG clauses. How long do you think this would go on if every person who was forced into a settlement under duress immediately went to the nearest newspaper and told their stories? Judy Morris, MD (Judydoc)