Update (4/2/14): I just got word that Practice Fusion has updated their terms page and removed the negativity clause.
Practice Fusion’s offering a free Google Chromebook to docs who sign up for its free, web EHR. It’s one thing to give’em the razor and charge for the blades, but this offering goes that one better, you get both, gratis. Or so it seems, but there is a catch you should know about before you click in.
The heart of the offer is a free Google Chromebook worth about $300. Chromebooks are hardware platforms for Chrome’s browser, which acts as its operating system. They come in two screen sizes, eleven and fourteen inch and are made by several different vendors, such as HP and Toshiba. Google also provides 100 gigs of on line storage for two years.
Cromebooks have lightweight magnesium cases, a 1366 x 768 screen, 2 USBs, webcam, 2 gigs of RAM and a 16 gig solid state drive. They are WiFi only devices with Bluetooth. PF does not specify which vendor’s unit or screen size that it offers, though it refers to HP’s as an example. As a side note, John has the HP Chromebook and loves it and especially the 10-12 hours of battery life.
To qualify, PF requires that you meet these standards:
- License. Be a licensed US healthcare provider at least 18 years old. (Sorry, Doogie)
- Status. Be a US Citizen or permanent legal resident
- New User. Not been a PF user before
- Account. Successfully signed up for a PF account
- Rx User. Become one of their e-Prescribing users
- Survey. Participate in a PF survey of eligible users
- Agreement. Agree to their terms and conditions for the program.
As you would expect, PF puts in several clauses to protect itself and to comply with privacy and similar considerations. Oddly, I could not figure out what happens to the Chromebook if you quit PF or if they end the program.
The Gag Rule
So far, so good, but there’s a gotcha in Section 5d of the offer’s terms and conditions, which says:
Negativity. You will not disparage Practice Fusion, Inc., our Services, the Program, products, employees, partners, affiliates, contractors, or portray them in a negative or derogatory manner.
I don’t know what prompted PF to put this in. There’s nothing new in the PF technology or using a Chromebook to access it. It’s understandable that PF wants to make sure it’s getting new subscribers who are doctors, but this language is not related to the offer. It’s not part of PF’s standard agreement, which has nothing like this clause.
It’s easy to come up with questions about the language. Here are a few:
- Scope. Just who isn’t included in this rule? It applies not only to PF and its employees, but also in this case to Google or HP, etc., including their contractors without limit.
- Disparage. What do they mean by disparage, they don’t say. Commonly, it means to belittle or demean. So, if I say to a friend that my Chromebook’s OK, but it’s no MacPro, is that a violation? What if I post a problem on PF’s Community Support forum that’s an impediment to my work, am I liable under this section?
- Negative or Derogatory Manner. I guess this means if you are going to say something less than flattering, you’ll have to damn with fait praise. For example, “Considering how short staffed they are, it’s amazing their backlog isn’t worse.”
- Reviews. If I’m a doc who writes a review of PF under this program, am I barred from pointing out problems? Do they have a right to sue me for violation of the terms, if they think I said something negative?
- Legal Recourse. If I file a complaint with a consumer protection agency, the FTC, FDA, etc., does this section open me to legal action?
All these are problematic, but the greatest problem with this clause, and similar ones that other vendors impose, is not what it does to their users. It’s what it does to the vendor and its products. These gag rules, which are intended to insulate the vendor from hostile comments, etc., also isolates them from important feedback.
As I’ve noted elsewhere about the gag rules some vendors include:
Agreements. Your company lawyer did a great job of protecting you from being sued. Are you so protected, though, that your client can’t talk about problems? Client complaints may be on target or way off, but if they are afraid to tell you or discuss it with anyone, how will you know?
With Section 5d’s language, PF thinks it’s shielding itself from adverse attacks, but it’s really blinding itself to legitimate criticism and suggestions for improvement.
There is also one other factor. PF has put this language in a program aimed at practicing physicians. Shouldn’t these doctors be considered partners in their efforts to make a quality EHR? Why would Practice Fusion not want both positive and negative feedback from these core users?
Maybe this was just missed by the Practice Fusion team and wasn’t their intent. It’s not hard in these situations for a legal team to add something that’s not the intent of the company and is missed in the terms review by the company. Balancing the legal is hard, but PF ought to trim this language way back or just toss it.