The Rating Game

Technology is truly transforming healthcare. Electronic medical records, more precise prescribing, and Web-based access to scanned images enabling specialists in another state or even country to review a patient’s case are all exciting innovations in healthcare technology. The Internet has shown limitless promise in patient care by enabling unprecedented access to medical information and allowing physicians to communicate instantaneously with each other anywhere in the world. Unfortunately, this tool is also being used in a counterproductive and malicious manner.

A host of websites have emerged that enable unbridled criticism of physicians, often with little or no basis in fact. Physicians have been bound by confidentiality laws for years. But patients can now go on websites like RateMDs.com and make outrageous, often inflammatory statements that can do serious damage to a physician’s reputation. The misinformation posted is often anecdotal, statistically invalid, and impossible to verify. Attacks often come anonymously, providing no recourse for the physician and no accountability on the part of the disgruntled poster. At first glance, there appears to be little physicians can do about it. But it is possible to take some of the methods used to help physicians defend themselves against meritless malpractice lawsuits in a court of law and adapt them to help physicians defend themselves against defamation in the court of public opinion.

Uncommon Solutions for an Uncommon Medium

In other mediums, such as television, radio, and print, defamatory and untrue statements can be addressed by filing a libel or slander lawsuit in civil court. But the Internet is different. The courts have held that Internet Service Providers (ISPs) are only a vehicle for user-generated content, and are thus not responsible for that content. This means that physicians can’t sue an ISP that publishes false and defamatory content about them in the way that a physician could sue a newspaper, magazine, or broadcast station.

But there is a solution—one that uses well-established tenets of contract law. By crafting proprietary contract language, patients are asked beforehand to respect their physician’s privacy on the Internet. In order to be successful in making medical malpractice law fairer for both patients and physicians, physicians can design—and have a patient sign—a contract that benefi ts both the physician and the patient. Such a contract asks patients before care is delivered to respect their physician’s privacy on the Internet in the same way that the physician respects the patients’ privacy. In exchange, the physician grants patients privacy protections well beyond those mandated by HIPAA.

With such contracts, patients reserve the right to file a lawsuit in the event that a genuine dispute takes place. However, the patient and doctor must agree to use “expert” witnesses only from the doctor’s specialty, and these experts must be board-certified and agree to abide by the code of ethics designated by their specific specialty. In my experience, patients are willing to sign such contracts. Among physicians with whom my organization has worked, members are sued at a rate of less than 2% per year, while the national average is around 8-12%. There can be no doubt about the need for measures that protect physicians from defamation. Patients can post whatever they want on an increasing number of healthcare-specific blogs and doctor review websites, with little or no policing. A single, disgruntled individual, masquerading as many patients, can post multiple entries and opinions.

Posts can also come from “competitor” physicians, or a former member of the office staff with a grudge. The purpose of the contract is to enable the physician to force an Internet service provider to take offensive material down. Established case law suggests these contracts are enforceable. In recent years, the courts have upheld contracts and enforced confidentiality agreements in cases involving anonymous employee bloggers who uploaded private information about their company onto the Web. The rulings in these cases support the view that patient—physician contracts will be treated similarly by the courts.

This is not to suggest that publishing physician outcomes is not important. But if physician rating sites are to have any real value, the information they present must be verifiable and statistically valid, like the information presented on sites with rating surveys, including DrScore.com. Contracts can embrace the use of such surveys that actually inform. That way, the public has better information, and the doctor is protected against abuses from which he or she would otherwise have no recourse. The main goal of all this is better patient care, something that is best accomplished when the doctor and patient work together as partners, and when the relationship is based on trust. At fi rst glance, having a contract that defines the rules of engagement would seem to do little to support trust. But I’ve found that the opposite is true, and the reason is that a key part of that trust is effective communication.

Jeffrey Segal, MD, is a board-certified neurosurgeon and the founder and CEO of Medical Justice Services Inc, a firm that provides doctors with a proactive way to deter and defend themselves against frivolous medical malpractice lawsuits. He may be reached through www.MedicalJustice.com.