The Legal and Ethical Implications of Gag Clauses in Physician Contracts

Abstract

This Article examines the impact gag clauses have on patient and physician autonomy and concludes that gag clauses are illegal, unethical and against public policy. To place gag clauses in the proper context, Part II chronicles the changes that have occurred in health care during the past decade. Part III surveys the prevalence and range of gag clauses in physician contracts. Collectively, these provisions constrain four major areas of speech: the physician's ability to (1) inform a patient of available treatment options; (2) disclose the nature of her employment agreement and resulting conflict of interest; (3) solicit patients and pursue her livelihood; and (4) engage in the political debate over health care. Part IV evaluates the legality of these constraints by applying the doctrines of informed consent, fiduciary duty and malpractice, as well as the First Amendment and various statutes. This Part also discusses the possibility of enterprise liability, subject to ERISA preemption. Part V outlines a physician's ethical obligations. The consequences of either violating or upholding these principles when operating under a gag clause are discussed. Part VI examines the typical means of gag clause enforcement and possible legal defenses to a physician's breach. Finally, Part VII surveys a range of possible responses to the use of gag clauses, including state and federal legislation, concerted physician action and consumer pressure.