Gag Clauses Essay

For the past ten years, the Health Management Organizations (HMO), who is responsible on the health care programs, had imposed a new system that restrict and inhibit physicians in communicating to their patients. (Wynn, 1996) This is known as ‘gag clause†. The physician must not discuss the medical condition and all treatment options of their patients. These include the right health care plan, the appropriate treatment and medications that may be benefit to the patient in terms of cost. (Liang, 1998) The issue on the gag clauses creates a big noise especially on the practitioners and physicians. This issue receives many criticisms. According to some critics, it is the obligation of a physician to educate and inform his patient on what kind of treatment, and the kind of health care plan. This is because physicians are trained to treat the bad health conditions of their patients. The gag clause thus inhibits the open discussion of the two parties. Because of the gag clause issue, the House of Representative and the Legislature of United States are now making a proper move to inhibit the gag clauses in physician contracts. But almost 200 million of the citizens of the said country rely on health care programs of HMOs. The lawmakers of United States, who had made laws and enforces these to protect its citizens, medicine companies as well as the practitioners from the HMOs, still HMOs finds a way to control the actions of their hired physicians. This is the termination-without-cause clause. In this clause, the physician to be hired by HMOs can be fired for any reason. The restrictions of physicians in communicating to their patients produce major problems especially on the side of the patient. One of these problem is the lost of trust and confidence of the patient if his original physician has been deselected. Then the second physician must handle the latter treatment on the patient which is very difficult because of little time. Then the second physician also faces a constraint in communicating to his patient. This will result to low quality health care service given by HMOs. The welfare of the patients is being jeopardized because of gag clauses. A study was conducted on the performance of physicians experiencing gag clauses from their health care company. From the physicians who were interviewed, majority do their medical obligation as part of their ethical duties in providing the necessary medication and treatments for their patients. They do not even read carefully the provisions of the contracts they signed in handling their patients. But because of the alarming issues on the deselecting, physicians were limited on communicating to their patients the health conditions and proper treatment. While on the side of physician sectors, there profession is being put at risk. As a physician, their responsibility is to take care of their patient which is the core of their medical responsibility. If these physicians were unluckily deselected, their ethical responsibility to raise and support their family will be affected. Thus, physicians are faced in a two situations were they must choose which will they do. Thus the purpose of their profession is being sacrificed. In almost contract signing, there are some elements to consider and understand by both parties before they undergo in signing. Some of the key terms to consider are the payment terms, duty and obligations of parties, representations and warranties, conditions on the closure of the contract, some liability issues and termination rights. In contract signing in a managed care setting, the identification of the parties who will sign the contract must first be done. In terms of managed care setting, the health care provider, physicians and the consumers or patients are the main characters. Then the recitals will follow. In this part, it contains the background of the contract as well the objective. The obligation of the parties involved is the next element to be discussed before signing. The health care provider will provide all the necessary treatments needed by the patient for his wellness. This includes the necessary and appropriate health care plan. While the physician medical responsibility is to provide the necessary treatment needed by the patient in which he can apply his profession. These include care and medication of the patient. And lastly, the obligation of the patient is in term of financial obligation for the health care provider and to the physician. (Allbusiness, 2007) Next to be considered are the terms of the contract. It must be clearly stated what are the sanction if one of the terms was not made. Also, the contract must be known if it is an only one time or it can be renewed. And if the contract is renewable, how it can be renewed? These questions must be first answered before the signing of the medical health care contract. After this, the price must be set. How much will it cost the service of the health care provider to their costumers or patients and the salary of the physician assigned, as well as the terms of payments between the parties? When will the due of the payment and what are the consequences if the due was not met by one of the party concerned. Warranty is also part of a contract. The warranties must be clearly stated on how it can be claimed and in what way. If the health care program does not meet the terms, how will the health care provider pay the consequence? And how long the warranty will is good for. And lastly is the term of termination of the contract. When will the health care program end in concern on the patient? When will the physician medical obligation ends. The above are mentioned are the key terms in contract signing in a health care setting. (Allbusiness, 2007) In contract signing in a health care setting, a major concern that must be considered is that-if the contract contains provisions of illegal act? Because majority of the HMOs contract’s contain provision of not letting communication on the physician-patient relationship, the Federal government of United States enforce these HMOs to eliminate these gag clauses. In a contract, it is stated that the patient under a health care program is entitled to all benefits of the health care program. ( Scanlon, 1999) Because of this, the Health Care Financing Administration force HMOs to eliminate gag clauses on their contracts. If a contract contains illegal act such that of the gag clauses, it will be considered as a violation on the Medicare law. This is because almost physicians believe that inhibiting them in communicating with their patients about their medical condition might result to increase on the risk on their health condition. (Frascati, 2005) Even tough some of the health care plans of HMOs were revised in connection with the gag clauses; still there are provisions and conditions that hinder the communication of physician-patient relationship. Some of these provisions are the business confidentiality clause, nondisparagement clause and nonsolicitation clause. These provisions are discrete form of inhibition of the communication. (Lott, 1997) If one of the provisions in a contract is unenforceable like no legal action or waiver of right to trial by jury, and then the contract is considered void. (Higuchi, 1995)