Vendor gag clauses hurt everyone, including the vendors

No one likes to feel muzzled.

So I read with great interest this recent blog post from Carl Bergman, managing partner of a service that matches users with electronic health record vendors. He expressed concern that an anti-negativity clause attached to a Practice Fusion promotional offer came at a high price. The EHR vendor was offering a free Google Chromebook to doctors who signed up to use its system. The offer's terms and conditions, however, called on users to "not disparage Practice Fusion, Inc., our Services, the Program, products, employees, partners, affiliates, contractors, or portray them in a negative or derogatory manner."

Bergman called the "gotcha" overbroad, and added that Practice Fusion was isolating itself from "important feedback" and "blinding itself to legitimate criticism and suggestions for improvement."

Now, many, if not most, vendors include confidentiality clauses in their contracts with users, a fact confirmed by Bergman and by a quick search on Google. These clauses are so ubiquitous and overbroad that the Office of National Coordinator itself warns providers about them and recommends that they be carefully reviewed and negotiated, particularly to allow voluntary disclosures for legitimate purposes. These confidentiality clauses, sometimes called "gag clauses," also can bar providers from making disparaging statements about the product.

But a specific "anti-disparagement" clause is a slightly different animal, since it's so specific. Those who insist on them are trying to control their reputations.

Therein lies the irony: when someone tries to enforce an anti-disparagement clause against a consumer, it's the enforcement action that hurts the reputation more.

Take a look at KlearGear. I had never heard of this online retailer until the Washington Post ran an article last November about how it tried to enforce its anti-disparagement clause against a consumer who posted a negative review on a website.  KlearGear hurt the consumer's credit; the family spent three weeks without heat and suffered other harms. Now the consumer is fighting back, and KlearGear is coming across as the bad guy.

Or try conducting an online search for dentist Stacy Makhnevich. She required a patient to sign a "mutual privacy" agreement and tried to enforce it after he posted a negative review of her treatment online. He sued her on freedom of speech grounds. A review that would have been quickly buried by time now is forever all over the internet. Ouch.

Practice Fusion, I'm pleased to report, appears to have seen the light. Within hours after I asked the company about its anti-disparagement clause, it had decided to drop the requirement. Its official response in an email to me was:

"Practice Fusion always welcomes feedback from our user community. Due to the confusion caused by this language, we're removing the anti-disparagement clause from the 'Free EHR, Free Laptop' terms."

Kudos, Practice Fusion, a wise decision.

But it still begs the question of the need for such overbroad gag clauses to begin with. The real issue is improving patient safety. Protecting one's proprietary trade secrets is one thing; barring discussion regarding whether a particular design feature is safe or easy to use is another.  

What are the vendors afraid of? Shouldn't people have full knowledge about a product so they can make informed decisions about what to purchase and how to best use the system? And wouldn't that, in turn, spur the market to improve the product?

The entire vendor industry should take a fresh look at these overbroad clauses to allow for legitimate dialogue among users and the public. Providers shouldn't have to fear the threat of legal action just to do right by their patients.

Plus, I expect that more consumers are going to start to push back against being muzzled. And you, vendors, are going to look like the bad guys. - Marla (@MarlaHirsch @FierceHealthIT)

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