By Evan Falchuk

Doctors have a right to be mad about medical malpractice claims against them.

Is there a creative solution to this mess in an old tenet of nuclear deterrence?  What if doctors aggressively went after patients who sued them, and pre-emptively warned them about even complaining on the internet about their experience?

On the surface it sounds attractive.  The doctor lets his patients know the rules of the game: I do my best, and you agree that if things don’t work out, you won’t turn on me.  But a closer look reveals how destructive it is.

If you read about the North Carolina company that has been leading the charge in this area you’ll see why.  Called “Medical Justice,” it has been getting a quite a lot of attention with something they call the  “Deterrence Plan.”  If a doctor buys one of these plans (the “recommended” plan is about $3,000 for the first year and $1,000 a year afterwards, depending on your specialty), and is then sued for medical malpractice, the company may spend up to $100,000 to counter-sue the patient.  They will even go after any expert witnesses hired by the patient, filing complaints at any of the medical associations, specialty societies, licensing boards or others they think are appropriate.

But wait, there’s more.  For an additional fee ($495 a year, $350 every year after), the company will give you its  “Web Anti-Defamation Package.”  This includes what they call a “mutual privacy agreement.”  The doctor presents his patients with a contract that they have to sign in order to be seen by the doctor.  Under it, the patient agrees they will not make anonymous comments on the internet about their experience with the doctor, and that if they do make any comments on the internet they will only be on sites that meet some company-defined “minimum standards of credibility.”  If a patient does it anyway, they’ve broken the agreement and are now subject to being sued.

Think about what it would be like to be presented with these “Patient Contracts” at the doctor’s office.  You’re there trying to get help from the doctor, and he responds by treating you like an adversary.  Yes, some patients sue, but most don’t, even if they have a bad outcome.  But treating every patient as if they might is deeply destructive of the most important aspect of the doctor/patient relationship: trust.

Lawyers (disclosure: I am one) do this sometimes.  They’re very good at telling you you should never rely on “trust” in business dealings, that all you really have is what you have in writing.  But the relationship between a doctor and a patient is fundamentally different than most any other relationship we enter into in life.  In that relationship, trust is the most important thing you can have.

We should be looking for ways to strengthen the bond between doctor and patient, not for ways to twist it into an arms-length commercial transaction.