Mum is not the word.

• Author: Tobler, Laura
• Position: State legislatures and the disclosure of health care choices - Includes related article

Sparring between doctors and managed care organizations over how much a physician can tell a patient about health care choices has led to a new law in Massachusetts and pending legislation in at least five other states.

At issue are confidentiality clauses -- called "gag clauses" by critics -- that are sometimes part of the contract a primary care doctor has with a health maintenance organization (HMO). While HMOs insist that the clauses are intended only to keep doctors from divulging the specifics of their financial arrangements -- protecting proprietary information from competitors -- doctors think the HMOs' interpretation of the clauses is more restrictive.

Carol O'Brien, senior attorney for the American Medical Association, says HMOs have used the clauses to prevent physicians "from discussing treatment options, recommending specialists and seeking second opinions." She claims that this undermines fully informed consent by the patient.

Physicians argue that the clauses are a conflict of interest, that a doctor's ultimate contract is with the patient. "It is unethical for a physician to withhold information from the patient," says Dr. Donald Lewers, a member of the American Medical Association board of trustees. He says it is a doctor's duty to disclose all information necessary to make treatment decisions. This includes all reasonable alternatives for diagnosis and treatment, and the benefits and risks of each -- regardless of costs. "Gag clauses interfere with the practice of medicine," Lewers says.

But Susan Pisano, director of communications at the American Association of Health Plans, says the clauses are about "the doctor's relationship to the health plan, not the doctor's relationship to the patient."

"I do not know of any contract that would limit a physician's ability to discuss medical status, treatment options and general medical services with the patient," she says. According to Pisano, physicians are free to discuss treatment options, the referral process, as well as payment methods. She also says managed care fundamentally "relies on good communication."

FIRST OF ITS KIND

A new Massachusetts law, which may be the first of its kind, is designed to stop HMOs from restricting communication between providers and patients. H5347 prohibits insurance companies in the state from refusing to contract with or compensate providers based on communication with patients, as long as this communication is made in good faith. "Now...