Morning Chronicle - Physicians Urge Arizona to Ban Medical Gag Clauses and Enable Private Lawsuits

A coalition of Arizona physicians and medical students is calling on state lawmakers to enact legislation that would prohibit healthcare providers from requiring patients to sign non-disclosure agreements, while simultaneously granting those patients the legal authority to sue for violations.

The proposal, outlined in a recent commentary by Brian Wilhelmi, Jad Mazboudi, Aaron Stevens, and Ahmed Nabhan, addresses a specific vulnerability in the current legal framework governing medical practices. The authors argue that while federal law technically invalidates such clauses, the practical enforcement mechanisms are insufficient to protect patients from intimidation.

The authors begin their argument by describing a common scenario for individuals seeking treatment at clinics marketing expensive or unproven therapies. Patients often sign intake forms containing non-disclosure or non-disparagement clauses as a condition of receiving care. These agreements typically prohibit patients from publicly criticizing the clinic, its staff, or its treatments.

Wilhelmi, an anesthesiologist with 17 years of practice at the Barrow Neurological Institute in Phoenix, along with Mazboudi and Stevens, third- and second-year medical students at Creighton University School of Medicine in Phoenix, and Nabhan, a research fellow at St. Joseph’s Hospital and Medical Center in Phoenix, contend that these clauses undermine the trust essential to medicine.

"Patients cannot inspect a surgeon’s technique or audit a clinic’s outcomes," the authors write. "Reviews, word of mouth and complaints to regulators are how warnings travel from one patient to the next. That matters most where the risk is highest: clinics marketing expensive, unproven treatments to people with cancer, chronic illness or few remaining options."

The commentary highlights a discrepancy between federal statute and practical enforcement. The Consumer Review Fairness Act of 2016 explicitly voids form-contract clauses that bar honest reviews or penalize customers for posting them, and this protection extends to medical practices. However, the law restricts enforcement authority to the Federal Trade Commission (FTC) and state attorneys general.

Courts have interpreted the federal law to prevent individual consumers, including patients, from filing lawsuits under its provisions. Consequently, the FTC, which polices the national economy, rarely pursues cases involving a single local clinic. The authors argue that this enforcement gap allows providers to distribute gag clauses with minimal risk, relying on the psychological intimidation of the contract rather than its legal enforceability.

"The intimidation does the job the contract legally cannot," the authors state. "A provider can hand patients a gag clause at little risk, and the clause still works, because the patient who signed it believes it is binding."

To address this issue, the group proposes a three-part legislative framework for Arizona.

First, they advocate for a law barring non-disclosure and non-disparagement agreements in all healthcare practices. The proposed statute would be broad in scope, specifically prohibiting provisions that attempt to classify medical treatments as "trade secrets" or confidential information.

Second, the legislation would require healthcare providers to report any such clauses to the professional board overseeing their respective fields. The authors suggest that the law should establish consequences for this practice, including potential suspension or revocation of licenses, applied equally across all professional boards.

Third, and most significantly, the proposal calls for the creation of a private right of action. This would allow any patient asked to sign a gag clause or threatened under one to sue the provider. The legislation would establish statutory damages and mandate the recovery of attorney’s fees. The authors argue that a fixed dollar amount is necessary because "silence is hard to put a price on," and fee-shifting provisions would enable ordinary patients to retain legal counsel for such cases.

The commentary draws a parallel to Arizona’s constitutional protections, which guarantee every person the right to freely speak, write, and publish. The authors note that this right comes with responsibility; patients who publish false statements remain subject to defamation lawsuits. They argue that healthcare providers already face an imbalance in privacy laws, which prevent them from answering reviews with patient-specific details. The remedy for providers, they assert, lies in defamation claims and takedowns of false content, not in silencing patients through contracts.

"The law would target only one thing: using a contract to keep truthful accounts of medical care from reaching the public," the authors write.

The group points to California as a precedent, noting that the state already grants consumers a private right of action against non-disparagement clauses. They urge Arizona to follow this model while extending specific protections for patients.

In the interim, before new legislation is passed, the authors recommend that the Arizona Attorney General study the prevalence of these clauses across the state and enforce existing federal and state laws. They also advise Arizonans that if a medical office asks them to promise never to criticize the facility, such a promise is likely unenforceable. Patients are encouraged to decline signing such documents and report the request to the Attorney General’s Office.

The authors conclude by emphasizing their shared professional background in Phoenix. "We’ve all learned that medicine runs on trust, and trust works only when patients feel free to tell the truth about their care," they write. "Arizona should make sure no one can buy their silence."

Wilhelmi holds both medical and legal degrees, combining his clinical experience with an understanding of regulatory frameworks. Mazboudi, Stevens, and Nabhan represent the next generation of physicians entering the field in Arizona. Their joint statement reflects a concern that the current legal environment allows clinics to exploit patients' desire for care to suppress future feedback.

The proposal comes at a time when healthcare transparency is under increasing scrutiny nationwide. As medical tourism and out-of-state treatments become more common, the ability of patients to share unvarnished accounts of their experiences is viewed by the authors as a critical public safety mechanism.

While the federal Consumer Review Fairness Act provides a theoretical shield against gag orders, the lack of individual enforcement power leaves a void. The Arizona proposal seeks to fill that void by empowering patients directly, transforming non-disclosure clauses from a tool of intimidation into a legal liability for providers.

C.Griffiths--MC-UK