Doctors try to stop patients from rating them online

By Peter Vieth
An increasing number of physicians across the country are trying to control what patients say about them on physician rating websites by requiring patients to sign agreements stating that that they won’t make comments about them without their permission.
The rapidly growing Internet rating services offer a unique forum for people to talk – with no reservations and often no signature – about their experiences with individual doctors.

Although most reviews are positive, other online comments can be blunt and harsh.

For example, this comment was offered about a Massachusetts psychiatrist on the RateMDs website: “He has a glazed look and doesn’t seem all there. His appointments consisted of me talking and him saying virtually nothing. They also last about three or four minutes.”

On the same site, a family physician was blistered with this comment and accusation: “I can’t believe this guy is still practicing. I got rid of him a few years ago after he prescribed the wrong medicine to one of my family members.”

In response to such negative reviews, some medical offices are asking patients to sign agreements limiting their freedom to post reports about the doctors on the Internet. Free speech advocates, meanwhile, question whether doctors should condition medical treatment, even elective treatment, on an agreement to curb public comment.

A North Carolina-based organization that sells privacy agreement forms for doctors says the web-based criticism can be unfair.

The fact that a single anonymous comment can poison the reputation of a medical provider rankles former North Carolina neurosurgeon Jeffrey Segal. He started a business called Medical Justice six years ago to provide various legal protections to doctors. He has now added a “mutual privacy template” to his menu.

Under such an agreement, a patient agrees not to post about the doctor on the web without the doctor’s permission. In turn, the doctor promises to provide a higher level of privacy than required by law, apparently by agreeing not to sell his patient list to marketing companies.

Shane Statler, a spokesman for Medical Justice, said that, in Segal’s view, the medical rating sites “do more harm than good.”

Statler explained that there is often no way to determine if posted comments actually come from a doctor’s patient. He cited one instance where a competitor tried to blacken the reputation of a dentist by posting – falsely – that the dentist was a pedophile.

In addition, Statler said, a physician would be hamstrung by privacy laws if a patient decided to complain about a bad medical outcome. The physician would be barred from telling his side of the case to defend his practice.

“Doctors feel very isolated in their practice today,” Statler said. “They feel they’re targeted a lot, sometimes by frivolous litigation.”

When a critical rating shows up on the Internet, he said, the privacy agreement provides recourse. The doctor can ask the rating site to take down the criticism by showing that all his patients had agreed to refrain from posting.

“It gives them a seat at the table,” said Statler.

Rating sites catch on

Reviewing doctors online is a relatively new phenomenon, but apparently catching on quickly.  The site Angie’s List – which started by rating home contractors 14 years ago in Columbus, Ohio – began including health care reports only about a year ago.  Founder Angie Hicks said her service now is receiving about 10,000 health care reports each month, about a quarter of all the reports they post.

“Consumers are looking for a trusted filter to help them make decisions,” she said.

Hicks said her website does not allow anonymous postings, although the poster’s identity is not publicly available. She also said service providers are allowed to respond.  “And we show their response,” she said.
Hicks said her service had not been asked by any doctor to remove a post based on a privacy agreement.
“I have heard of no activity in Massachusetts about any privacy agreements between physicians and patients related to postings on websites,” said Rick Gulla, spokesperson for the Massachusetts Medical Society.

The use of patient privacy agreements has caught the attention of Paul Levy, an attorney at the Public Citizen Litigation Group in Washington.

Levy pointed to broad language used in one form – available online from a New Jersey medical practice – that appears to bar any publication of commentary about the physicians, not just posting on the Internet. He said that the form, as written, might be read to forbid patients from making reports to state regulators or to a medical malpractice lawyer.

Rod Smolla, a First Amendment scholar and dean of the Washington and Lee University School of Law in Lexington, Va., worried that patients would sign the privacy forms without reading them, along with all the other forms doctors have their patients sign.

“Our public policy and our law should be highly skeptical of contracts that condition the public’s access to the services of a critical profession on the signing of waivers gagging the public’s constitutional right to be critical of a profession,” Smolla commented in an e-mail.

Smolla said that equal access to the forum can cure the problem of posts that are critical of a physician.
“If a doctor’s patient or a lawyer’s client engages in an unfair criticism of the professional provider, other patients or clients are free to step in and offer counter-views,” he said.

“I believe strong arguments of public policy, contract law, and constitutional law can be brought to bear against the enforcement of these waiver agreements,” Smolla said.  “Whether or not they are legally enforceable, they are not sound professional practice.”

However, Robert M. O’Neil, director of the Thomas Jefferson Center for the Protection of Free Expression in Charlottesville, Va., said that the privacy agreements probably would stand up in court.
As long as a private doctor merely gets patients to agree not to post comments, he said, the practice may be short-sighted but doesn’t raise a First Amendment issue.

“Only if some government agency or policy effectively induces patient silence would such an issue arise,” O’Neil said.

John Whitehead, president of the Rutherford Institute, a civil liberties advocacy group in Charlottesville, Va., said he would be concerned if a doctor tried to impose a no-posting agreement as part of a publicly funded health care program.

“That would be a First Amendment violation,” he said.

Medical Justice agrees that the forms are not appropriate for publicly funded health care.

A version of this story originally appeared in Virginia Medical Law Report.

Questions or comments should be directed to the writer at: peter.vieth@valawyersmedia.com