The Ratings Game

The rise of social networking websites that encourage patients to rate their physicians and discuss their experiences has some practitioners worried about the damage a malicious review could do to their practice. One physician group advocates preventive action in the form of contracts that bar patients from commenting online. Others say this approach could damage the physician—patient relationship and have a chilling effect on patient-generated online content.As the health revolution continues to gain momentum, physician rating websites, blogs, and forums are gaining in popularity and ferocity. Now, in addition to malpractice suits, review boards, and report cards, physicians must deal with Internet defamation. Winning a defamation suit is a long, diffi cult, and often unsuccessful process that, like frivolous malpractice suits, wastes time, money, and resources while giving everyone involved a headache. Doctors are often left wondering how to protect themselves. Medical Justice Services, a proactive malpractice prevention firm, is helping by going after the source.

Physician members of Medical Justice who are concerned about patients blasting them online now have another option. Medical Justice has developed a “Mutual Privacy Agreement” contract that stipulates patients, in exchange for additional privacy rights, agree not to post any comments (good or bad) online without first asking for the doctor’s permission. The contract walks several fine lines; it has the potential to harm the physician—patient relationship, and it perhaps threatens the communication and social networking needed to propel consumerdirected healthcare forward.

Can doctors successfully navigate the world of consumer-generated healthcare content, or will they simply become helpless victims, failed by the complicated legal maze of Internet defamation law?

Defamation basics

The schema for an actionable defamation suit includes four points: a false statement regarding another; unprivileged publication of that statement; in public matters, negligence by a publisher; and damages to the subject. All four provisions apply to Internet defamation, and they all must be met to win the case. On the Internet, especially on rating sites, these points are difficult to prove.

Frank Pasquale, Associate Law Professor, Seton Hall University, South Orange, NJ, says it is difficult to prove the first claim of defamation—false statements—because it often comes down to debating fact versus opinion. “If you said, ‘Dr. X cut off my left leg when in fact he should have cut off my right leg,’ that is a fact that could be defamatory if it’s not true,” he explains. “But if you say, ‘Doctor X was mean, hateful, angry, and greedy,’ these sorts of evaluative opinions are all protected by the Supreme Court.” Because defamation indicates falsity, these cases become a muddled process of trying to convince a judge that someone’s claimed “opinion” is actually a false statement.

Unfortunately, the content on rating sites derives predominantly from patients’ evaluations of a doctor’s competence or amiability. “We couldn’t really have a rational argument over whether the doctor was mean,” Pasquale says, and therefore, “a lot of times, the courts are going to want to kick these cases out because they hate dealing with them.”

If these weren’t already insurmountable odds, add in anonymous posting, site monitor immunity, and a public fi gure threshold in which doctors may have to prove that comments were made maliciously. Perhaps most intriguing is the immunity of site monitors, blog owners, and Internet service providers.

Although the schema of defamation law includes negligence by a publisher, the Communications Decency Act of 1996 protects Web owners from liability. The act defines owners of rating sites not as publishers but merely as distributors of content, and therefore they cannot be required to remove posts or even reveal the IP address of an anonymous poster. Furthermore, even those sites that monitor content by editing or removing comments are protected. Although the law strives to protect reputations, doctors are frequently on the losing side of cases because of these ambiguities and technicalities. In this hostile legal landscape, doctors are in need of help.

Putting physicians “back in the driver’s seat” A woman unsatisfied and upset with the results from her plastic surgery logs onto the Web and creates MySurgeryNightmare.com to tearfully and scathingly cry out to other plastic surgery patients so they may avoid similar consequences. The previously polished record of a reputable doctor is now globally tarnished. The doctor files a defamation suit but loses because the court rules he does not meet the public fi gure threshold. The site is permitted to stay, while the doctor’s reputation and business suffer.

It was this real-life scenario, and the growing number of physician rating sites, that inspired Medical Justice founder and CEO Dr. Jeffrey Segal to devise a way to protect doctors from Internet defamation. “The difference with the Internet,” explains Segal, “is that it’s searchable, it goes around the planet, and it never goes away. It’s that sense of permanence; if you get it wrong, there’s no real way to self-correct. What we tried to do is at least put physicians back into the driver’s seat.”

Medical Justice Services provides proactive and preventative legal strategies and support to physicians so they may, according to the company's website, “prevent, deter, and respond to frivolous malpractice suits” that may harm one’s reputation and practice. The company has been active for six years, and for the past two years, Medical Justice has provided a template to members who may be concerned about patients posting libelous comments about them on the Internet. A patient who signs the contract is barred from posting any comments online about the physician or the care received without fi rst obtaining permission from the doctor.

“Traditionally, the antidote for off ensive speech is more speech, but in the medical world, or more broadly in the professional world, there are duties of confi dentiality,” says Segal. “You can’t just post the medical records to defend your good name. We thought that perhaps a better way of addressing this is to set the ground rules up front as to how each party, the doctor and the patient, will live and work with each other in the future, and we do that through the contract or at least a template for an agreement.”

The contract outlines an exchange of privacy, asking doctors to respect that of the patient while the patient respects the doctor’s privacy by staying away from all online forums. In a perfect scenario—in which the doctor successfully secures each patient’s signature, even in the case of an anonymous post—the physician will know online content is in violation of the contract and should be taken down. Pasquale agrees, “Where it really helps,” he says, “is that rather than having to go through a long lawsuit on defamation, you could sue the person under contract. You don’t have to go through the whole question of whether what the person said was true or not or was it really defamatory.” A doctor using the contract pulls greater weight in a lawsuit, far greater than those claiming defamation. “Freedom of speech and privacy are always in tension with one another. You can’t have unlimited privacy and unlimited freedom of speech,” says Segal. “I think our society has spoken. They certainly prefer privacy to freedom of speech. Most people really do want to fi ght tooth and nail for their privacy. This agreement takes advantage of that. Essentially, it says we will grant even greater privacy than required by law, but please respect the doctor’s privacy and reputation, also.”

The contract could be a needed life preserver for doctors looking to take back more control to protect their reputations. However, a poll of MDNG readers shows 66% of respondents would not implement a similar contract in their practice. The contract does raise several controversial issues, but some may ask what alternative doctors have without sitting back and letting patients blast them online.

Should patients have to choose between privacy and freedom? Regardless of holes in HIPAA, shouldn’t doctors protect patient privacy in full? Dr. Scott Shreeve, founder of Crossover Health and a leading Health 2.0 advocate, agrees that Medical Justice is mixing messages. “I don’t think they’re the same issue. Certainly a patient’s privacy is an essential and critical foundation to building a trusting physician—patient relationship, but trying to introduce privacy as a shield against negative comments is a farce,” Shreeve says.

Doctor vs. patient

Recent reports have focused on the deteriorating physician—patient relationship, and our own poll found that 54% of doctors feel a contract like the one off ered by Medical Justice Services would harm the relationship. Often, patients trust each other more than they trust their doctors, and with the growing popularity of patient education sites, Internet therapy, and online communities, patients are relying on each other even more. “There is power in collaboration and social networking,” says Shreeve. “It surfaces information faster than individuals could do on their own. In the past, you just had to learn from the school of hard knocks. Now, you have a social networking site that can help make your own journey a little bit easier.”

Although 48% of our survey respondents indicated they are “very concerned” about Internet defamation and 40% said they are “somewhat concerned,” 66% said they would not implement the Medical Justice contract. Violating patient trust appears to be the main reason why doctors hesitate to use the contract.

“I’m not comfortable with the idea of trying to control the speech of a patient as a condition of treatment. I feel that such a contract might have a negative eff ect on the doctor-patient relationship, raising concerns about the doctor’s trust or suggesting that maybe there was something to be hidden,” says Dr. Leonti H. Thompson, psychiatrist, Fairfi eld, CA.

Medical Justice argues that this contract could strengthen the physician—patient relationship because both parties would have equal respect and value for privacy. But what if a patient refuses to sign the contract? What could a doctor be hiding that he or she doesn’t want posted online? Rising fear of these sites and using the contract to prevent patients from going online may have an adverse eff ect: pushing patients’ trust farther from their doctors and relying heavily on rating sites, blogs, and forums where the credibility of information is questionable.

Doctors’ future in Health 2.0

In Health 2.0 networks, search engines, blogs, wikis, video, and online communities are the main participation outlets that enable consumer-generated health content to expand and evolve. Communication between patients is a crucial element to Health 2.0’s success. “What’s interesting about patient communities is that they often trust themselves as much or more than they even trust their doctors,” says Shreeve. “The concept of other ‘patients like me’ is that powerful. The Internet accelerates this empowerment by removing time and geography so that you can now start making these types of connections at an exponential versus traditional linear rate.”

Segal questions the usefulness of social networking on rating sites, saying they are not credible sources and patients should not reference them when searching for a new doctor or practice. “Ideally, you’re trying to extract wisdom. Wisdom would be to try and fi gure out who is the best practitioner to see, for what condition, and under what circumstances. A single, anonymous blogger writing about a doctor, I don’t think, would properly qualify as wisdom. I would suggest it’s more in the realm of raw data and accordingly not particularly useful.”

Physicians in our survey agree that rating sites are not helpful or credible, and even the AMA responded to a May 19 LA Times article about these sites, warning patients that online opinions, “should be taken with a grain of salt, and should certainly not be a patient’s sole source of information when looking for a new physician.” Jeff rey Kaplan, MD, MS, New York, agrees. “Allowing a patient to vilify a physician on the basis of whether they get along with each other, meaning the patient has the power to criticize the doctor’s technical and scientifi c abilities on the basis of personality, does not make any sense to me. It’s only one factor in many having to do with the quality rating of a physician.”

However, despite doubts of credibility by physicians, the AMA, and Medical Justice themselves, doctors are still wary of libelous comments made online. But even though doctors are fearful of online defamation, they are mostly unwilling to put the trusting relationship with their patients in jeopardy, and consequently, may remain trapped in a vulnerable legal position. Although the debate over how to fairly grade doctors may never end, we must find a way for online patient communities and the doctors treating these patients to work together harmoniously. However, in doing so, there need to be certain guidelines or stronger legal tools to protect doctors from legal defamation, without going as far as to threaten the doctor—patient relationship.

Giovanna Palatucci, a senior at The George Washington University, is an editorial intern for MDNG.