The Ratings Game

Giovanna Palatucci
Published: Tuesday, Sep 16, 2008
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.

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