Arizona Doctors Propose Law to Ban Medical Gag Clauses

Four medical professionals in Phoenix have drafted a legislative proposal to ban non-disclosure and non-disparagement agreements in Arizona healthcare practices. The group includes Brian Wilhelmi, MD, JD, an anesthesiologist with 17 years of experience at Barrow Neurological Institute, alongside three early-career physicians and medical students. They argue that current federal law fails to protect patients from silence clauses that prevent them from discussing their treatment experiences.

The authors note that the Consumer Review Fairness Act of 2016 already voids form-contract clauses that bar honest reviews. This federal statute covers medical practices and penalizes customers who post truthful criticisms. However, a structural gap remains in enforcement. Only the Federal Trade Commission and state attorneys general can currently enforce the law. Courts have ruled that individual consumers, including patients, cannot sue under it directly. Because the FTC monitors the entire national economy, it rarely pursues single local clinics.

This enforcement gap allows providers to use intimidation as a primary tool. Patients often believe these clauses are binding, even if they are legally void. This perception silences patients who might otherwise warn others about expensive or unproven treatments. The authors contend that reviews and word of mouth are the primary ways warnings travel from one patient to the next. This mechanism is most critical for patients with cancer, chronic illness, or few remaining options.

The proposed Arizona state law rests on three specific principles. First, it would bar non-disclosure and non-disparagement agreements in all healthcare practices. The legislation would explicitly prohibit provisions that attempt to classify medical treatments as trade secrets or confidential information. Second, the law would require the reporting of all such clauses to the professional board that oversees the specific profession. It would specify consequences for this activity, including potential suspension or loss of license, and apply these penalties equally across all professional boards.

The third principle establishes a private right of action with a set cost. Any patient asked to sign a gag clause or threatened under one would be able to sue. The plaintiff could recover statutory damages plus attorney’s fees. The authors emphasize that a set dollar amount is necessary because silence is difficult to price. Fee-shifting would allow an ordinary patient to find a lawyer for a small case. Real penalties would transform these clauses from a tool of control into a financial liability for providers.

The group argues that Arizona’s Constitution already supports this balance. It grants every person the right to freely speak, write, and publish, while holding them responsible for the abuse of that right. Patients who publish false statements could still face defamation suits. Providers currently face an imbalance because privacy law bars them from answering reviews with patient details. The authors state that the remedy for false content should be defamation claims and takedowns, not the silencing of truthful accounts. The law would target only the use of contracts to keep truthful medical accounts from reaching the public.

California currently gives consumers a private right of action against non-disparagement clauses. The authors suggest Arizona should follow this model and go further by writing these protections specifically for patients. While lawmakers consider the bill, the group recommends that the Attorney General study how widespread these clauses are across the state. The office should also enforce existing federal and state laws. In the interim, Arizonans can decline to sign such documents and report the request to the Arizona Attorney General’s Office.

The four authors represent different stages of the medical profession in Phoenix. Wilhelmi practices anesthesiology, while Jad Mazboudi and Aaron Stevens are medical students at Creighton University School of Medicine. Ahmed Nabhan, MD, serves as a research fellow at St. Joseph’s Hospital and Medical Center. They state that medicine relies on trust, and that trust functions only when patients feel free to tell the truth about their care.