By Jeffrey Segal, M.D.
President, Medical Justice
“Don’t see this doctor. Run, and run as fast as you can.”
“This doctor learned everything he knew from Grey’s Anatomy. The TV Show.”
“Butcher. Need I say more.”
Welcome to the world of the Internet. With the click of a mouse, a patient can review a doctor’s performance. There are now over 40, mostly anonymous, rating sites targeting healthcare professionals. The paradigm argues that all service providers are fair game. Roofers, contractors, plumbers…and now physicians.
There are at least four differences between healthcare and plumbing. First, medicine is not spectator sport. Patients participate. Results depend upon how compliant patients are with taking medications and following post-op instructions / post-op care. My plumber only asks that I pay his bill. He does not ask that I assist him in applying caulk to the tub. Second, medicine is often delivered by a team. Not one person. Third, medical outcomes are often knowable only over time; often a long time. With plumbing, you either have hot water or you don’t. Fourth, not all patients are equal and results vary. If a patient is 400 pounds and smokes, a different result is more likely than if the patient is a svelte, marathon runner.
So, if healthcare is different than plumbing, is it not possible that healthcare rating sites are, in principle, useful? Perhaps. Most patients prioritize their concerns in the follow order: Don’t kill or maim me; Make me better; Be kind to me. Most patients prefer a competent jerk to an incompetent diplomat with great bedside manner. That said, patients are interested in knowing whether their doctor has good communication skills, is trustworthy, and punctual. So, in principle, there may be some utility to rating sites — if done right.
What’s wrong with doctor rating sites in 2009? A lot.
(1) Is the posting individual a patient or someone posing as a patient? Anyone with an axe to grind – such as a competitor, ex-spouse, or disgruntled employee — can post and post and post.
(2) Physicians are forbidden by law to respond to factually incorrect claims. The usual response to offensive speech is more speech. However, due to HIPAA and state privacy laws, physicians are foreclosed from this option. A physician can’t even acknowledge that the poster is his patient. Half a story is not a full story.
If a patient has posted that on post-op day number two his wound opened up- sounds bad. Right? But, what if the real story is the patient was told to avoid heavy lifting for six weeks, but he went back to work as a ditch digger on post-op day number one. The interpretation changes.
(3) The information on these sites is misleading. It is simply unreliable. If there is a “wisdom of the crowds” on most sites, there are no crowds. Unverifiable, anecdotal, anonymous postings do not improve the quality of healthcare. These postings are detrimental to doctors’ reputations and misleading for patients who use the Internet to locate the best healthcare providers for their condition.
What can physicians do if they are unfairly targeted on such sites?
If the doctor does not plan ahead, he has little to no recourse. As an arcane nuance of cyberlaw, the web sites are immune from any accountability (Section 230 of the Communication Decency Act). These sites have generally taken the position they will not monitor or police any content. If a patient posts truly defamatory speech, the doctor can potentially sue the patient.
But defamation has a formal legal definition. Mere opinion does not rise to the level of libel or slander. Both require a false statement of fact that damages reputation. In the eyes of the law, opinions are fair game. In fact, the comments referenced at the beginning of this article would not cross the threshold for being actionable in court. But make no mistake — even though a doctor is denied a remedy in law, these statements are clearly damaging.
With that backdrop in mind, Medical Justice crafted a solution: Mutual Privacy Agreements. When the patient first sees the physician, the patient signs a Mutual Privacy Agreement. He agrees not to post on such sites without the doctor’s assent. In exchange, the doctor grants the patient additional privacy protections above and beyond those mandated by law.
The patient is free to speak with friends, family, other healthcare providers, hospitals, lawyers, Medical Licensing Boards, and more. The list is long. Such a long list encourages further communication in the most effective channels. The long-term goal is to promote an accountable way to provide reliable ratings, similar to JD Powers and Consumer Reports. Mutual Privacy Agreements were enacted to prod the market to self-police and do a better job.
Since 2007, the vast majority of patients who have been asked to sign such an agreement have done so. If a new patient seeks care for an elective condition, and the patient is not comfortable agreeing to the provisions in the Mutual Privacy Agreement, the doctor may recommend that that patient seek care elsewhere. The doctor may also make a judgment call and accept this patient into his practice.
Both patients and doctors are best served if their thinking on this issue overlaps. That is, if a patient values being able to post on the Internet more than other criteria, that choice should be honored; but, with a physician who is entirely comfortable with the current collection of now over 40 mostly anonymous Internet rating sites.
Medical Justice has been approached by at least four organizations asking how to “get ratings right.” Our wish list is simple. First, make sure the patient is a patient.
Next, require a minimum number of posts before they are made public. The average doctor sees between 1,000-3,000 patients a year. A sampling of four posts is statistically nonsensical. Fifty posts – that’s another story. Further, requiring a minimum number of posts would smooth out the extremes.
Finally, limit comments to a patient’s subjective impressions. This would encompass categories such as communication skills, bedside manner, and the like. If the patient wants to comment on a doctor’s technical prowess, it would need to be backed by an expert opinion. Most patients are unskilled in analyzing whether a doctor is adept at catheter ablation of arrhythmias. Hence, their published opinion would, at best, be misleading.
Welcome to the 21st Century. Most doctor rating sites have become un-policed repositories of Jerry-Springer-like material. Medical Justice Mutual Privacy Agreements give doctors a viable, time tested, proven tool to manage negative content until credible sites evolve. Just don’t hold your breath.
Jeffrey Segal is founder and president of Medical Justice Services Inc.
Is this the real problem? Or is the problem THE DOCTORS themselves. As a caregiver to my elderly parents, one now deceased, the other refusing to go to a doctor ever again due to maltreatment, I have to believe the MOST patient abuse isn’t even reported. Think about, people are afraid to even honk their horns at a speeder that nearly hits them – they aren’t going to go online and complain when they should. I am contacting the State Health Dept. over my mother’s abuse. I just went online to see if I could name this doctor by name publicly and all I get are these stupid articles about how doctors want to cover their butts.
In response to a newspaper article about David McKee MD V. Dennis Laurion, Dr. McKee, founder of Northland Neurology and practitioner at St. Luke’s Hospital in Duluth, Minnesota, said that money is money, and he wouldn’t remember the impact in five years.
I wrote my review of Dr. David McKee five years ago. I can’t speak for Dr. McKee, but I still remember the impact.
This entire experience has been distressing to my family. We were initially shocked and blindsided by “jocular” comments made so soon after my father’s stroke by somebody who didn’t know us. We were overwhelmed by my being sued after posting a consumer opinion, and we were shocked by the rapidity with which it happened.
David McKee MD V. Dennis Laurion has been the 800 pound gorilla in the room. My parents would be 88-year-old witnesses. My mother and wife prefer no discussion, because they don’t want to think about it. Conversation with my father only reminds him of his anger over this situation. My siblings and children don’t often bring it up, because they don’t know how to say anything helpful. I have been demoralized by three years of being called “Defendant Laurion” in public documents.
While being sued for defamation, I have been called a passive aggressive, an oddball, a liar, a coward, a bully, a malicious person, and a zealot family member. I’ve been said to have run a cottage industry vendetta, posting 108 adverse Internet postings in person or through proxies. That’s not correct. In reality, I posted ratings at three consumer rating sites, deleted them, and never rewrote them again.
What it’s like for a patient or family member to be caught up in a case like McKee V. Laurion was already described by the plaintiff’s lawyer in a Star Tribune newspaper article, “Company sues over info put on Yahoo message board,” August 27, 2001, and repeated in http://chronicle.augusta.com/stories/2001/08/27/bus_321610.shtml . It said in part: “IF A COMPANY SUES, alleging simple business disparagement or perhaps defamation, ITS GOAL ISN’T NECESSARILY TO WIN,” SAID MARSHALL TANICK, a First Amendment expert at Mansfield & Tanick in Minneapolis. “THE STRATEGY IS TO FORCE THE OTHER PERSON TO INCUR HUGE LEGAL EXPENSES THAT WILL DETER THEM AND OTHERS from making such statements,” he said … “yet very few (cases) go all the way to trial and verdict,” Tanick said. [ Emphasis added ]
The plaintiff’s first contact with me was a letter that said in part that he had the means and motivation to pursue me. The financial impact of being sued three years to date has been burdensome, a game of financial attrition that I haven’t wanted to play. The suit cost me the equivalent of two year’s net income – the same as 48 of my car payments plus 48 of my house payments. My family members had to dip into retirement funds to help me.
After receipt of a threat letter, I deleted my rate-your-doctor site postings and sent confirmation emails to opposing counsel. Since May of 2010, postings on the Internet by others include newspaper accounts of the lawsuit; readers’ remarks about the newspaper accounts; and blog opinion pieces written by doctors, lawyers, public relations professionals, patient advocates, and information technology experts. Dozens of websites by doctors, lawyers, patient advocates, medical students, law schools, consumer advocates, and free speech monitors posted opinions that a doctor or plumber shouldn’t sue the family of a customer for a bad rating. These authors never said they saw my deleted ratings – only the news coverage.
It was not my intention to use any descriptions or conclusions. It was also not my intention to claim that I had proof. Only my family and the doctor were in the room. My intention was to portray my recollection of what happened in my father’s room. The public could decide what to believe and what – if any – impact it had on them: insensitive doctor or overly-sensitive consumer?
Medical peer newsletters or magazines that interviewed the plaintiff did not approach me. Websites maintained by doctors for doctors or lawyers for lawyers often caused an inference that I was a zealot family member or somebody who had asked about my dad’s chances and then shot the messenger. Generally, however, those websites echoed other websites in advising public relations responses other than a lawsuit – for fear of creating the “Streisand Effect.” As a retired layman, I brought far less resources to the battle of financial attrition.
The Minnesota Supreme Court compared every statement I attributed to Dr. David McKee against every statement he claimed he really said. The Court concluded the impact of each set of statements was the same. For instance, the Minnesota high court said that Dr. David McKee’s version of his comment about the intensive care unit was substantially similar to mine.
I’ve learned that laws about slander and libel do not conform to one’s expectations. I’ve read that online complaints are safe “if you stick to the facts.” That’s exactly the wrong advice. I did not want to merely post my conclusions. I wanted to stick to my recollection of what I’d heard. I don’t like to read generalities like “I’m upset. He did not treat my father well. He was insensitive. He didn’t spend enough time in my opinion.” However, such generalities are excused as opinion, hyperbole, or angry utterances. If one purports to say what happened, factual recitations can be litigated. The plaintiff must prove the facts are willfully misstated, but the defendant can go broke while waiting through the effort.
During the existence of David McKee MD vs Dennis Laurion, I heard Dr. McKee’s lawyer tell the Minnesota Supreme Court how I could have commented without being defamatory. I am upset. I think Doctor McKee did not treat my father well. I think he was insensitive. He did not spend enough time in my opinion.
I think the real work done by the patients to doctor relation is to make sure both have the best working enviroment as these rating services helps patients find new dimensions of selecting there doctors and healthcare services.
i am despertly looking for a on-line doctor, i have lupus,fibromiliga,deg.joint and disc, disease, 3 slipped disc in bck,also i have severe musculosketelier pain, added to all the above,it is miserbable for me to go anywhere, including dr. appts, also, i have been sick with this a good part of my life,and i have never had a understaning,concerend,throughyl, nice attiduded, or unjudgmental dr, i need all of this in a dr, i have very good federal bluecross ins, my husband has been with the army now for 30 yrs, right now he is in iraq, he is the supervisor over the contractors, trying to rebuild,i live alone with no family, i rent mobile homes to people that will now and then help but i pay them,it is almost impossible for me to even walk to wait on my needs,or get to the bathroom,and at times,im in too much pain to even wipe good underneath, sorry about how that sounds, but it is true, i feel like my hips have detterated, but no dr, concerned enough, has time enough for me to explain, my husband makes good money and my ins, is good, he would pay anything to get me better, so he dont have to worry so much while doing all of his 6 month tours in iraq, and once he retires, we woud love to have a life together, traveling and ect,,, but at this time,in my condtion, i have no life, only depression, from the days i live this way,everyday, i need help, please, i can pay my help to take me for face to face visit,and x-rays,ect, but after that i need on-line dr, so i dont have to move around so much, my pain is that severe,im in abbeville s,c ,, can be brought if nesserary for first visit, and maybe after that,maybe some online visits, please., can some one, some dr, fnd it in their heart to treat and help me? i promise, i will do all i can to help myself, thank you, bobbie brubaker
I’m presently being sued by a doctor.
A family member was hospitalized. In the presence of several visitors, a consultant entered the room without a knock or introduction and aired his irritation that the patient’s room change was inconvenient. His exact statement was incredibly shocking. He then wanted to perform an exam that would have let the patient’s family see him exposed. The family members had to make the doctor wait until they left the room. When the hospital disavowed an employment releationship, I posted our experience on less than 5 rate-your-doctor sites. I related my family’s experience with no stated conclusions or hyperbole – merely a recitation of that once instance. Then I wrote to state and county agencies and peer review groups. I’m being sued for defamation. The doctor feels that his assertion that the posting is false justifies call it defamation. Our state allows hip pocket lawsuits. His lawyer serves me, I answer the complaint, provide discovery, answer interrogatories – all before he has to record it in court, if he does.
It’s ridiculous to suggest that patients who rate their doctors should be required to publish their own names. If this were to happen, no psychiatrist would be rated. Ever. Nor would any AIDS specialist. Nor would any oncologist. Nor would any doctor who treats stigmatized conditions. No doctor would ever receive a negative rating. Ever. Sanitized ratings are pointless and useless. You, the doctor, may feel that ratings as they are are pointless and useless, but patients don’t. If you don’t like your ratings, learn from them and become a better doctor.
The reality is that no matter how good or bad a physician is, he/she will always have complaints, just like any company, no-matter how small or big or successful the company, their will always be some disatisfied customers.
I personally think a physicians/surgeons experience, specialized training, and other credential data should be focused on. The only establishments that I know who offer doctor ratings based on factual data are Blue Cross/Blue Shield and mdnationwide.org.
If I were a physician I would probably feel the way most of you do, however I’m a patient and I disagree with some of what’s been said here.
1. I would never choose a physician based on a site that allows patients to spew libel with impunity. There are a lot of people out there like me.
2. The moment a physician pulls out a contract that literally bullies me into keeping my mouth shut for a period of time, I thank him, say no and find someone else.
Someone mentioned a plumber. It is the plumber who signs the agreement to offer good service, not I. True, a physician can’t, and shouldn’t be compared to a plumber unless it’s to say that both provide a service to a customer.
3. Carol mentioned medical boards and voodoo dolls in the same sentence. Some patients see the medical boards doing as much for them as voodoo dolls.
Finally, as one who is happy with her physicians, I thank all of you for all the years of sacrifice it took so that you could help people like me.
The websites have been sued. They are protected by cyber law. The only ones not protected are the doctors. A mutual privacy agreement is no different from signing an agreement with an arbitration clause (common in many contracts). If you don’t like it…don’t sign the contract and go see another doctor. No patient is restricted from legitimate venues for criticism….state medical boards. voodoo dolls etc…. Doctors should have the same protection under the law against libel as other citizens. Libel is not protected speech and these sites can’t or won’t police comment. Also doctors are not plumbers. What next “rate your priest or minister.”
To continue my last post (hit enter too soon). Even though the law supposedly “protects” or excludes websites and their owners from slander, that law won’t change until it’s challenged. As doctors know, whether innocent of not of malpractice, being sued is costly even when you win. Enough lawsuits, and these websites might just close up shop.
Anyone accused, or criticized, should have the right to defend themselves. I agree with the idea that if a poster wants to criticize a doctor, they should be required to reveal who they are (verified somehow).Perhaps this would change if a criticized doctor sued the website for slander.
They should balance out the “playing field”. If a Doctor/ Facility/ Practice is listed by name, then the author of the post should be as well. I find it ironic that even in a court of law, the accused has a right to know their accuser (some instances aside) but in the court of public opinion (internet) someone can remain totally anonymous and sling mud. Any rating site should require the poster to identify themselves as a “Term of Service” and if a poster violates the TOS the post should be removed and a notation that a non-qualified post was attempted and removed. (This would be used show a pattern of fraudulent posts against an individual, such as a smear campaign, disgruntled employee/ spouse). Furthermore, if a Patient does post a rating it should allow the (albeit limited) response from the named entity without constituting a violation of HIPPA. In other words if I as a paitient say my doctor (John Doe, MD) sucks, I shouldn’t be able to say that he violated my privacy when he responds that I was discharged for non compliance of an office policy. I wouldn’t expect John Doe, MD to respond with specific medical data (ailments/ medications/ treatments) unless it was specifically listed by the poster.
Just a few of my thoughts on the issue.
How about a web site rating non compliant patients? Or how about listing patients who simply shop and shop for a doctor?
Another way to deal with this, perhaps, is to go to these web sites and flood them with “ratings”. If someone unfairly targets a colleague, and it’s clearly done in bad faith, maybe write your own “rating”, praising the doctor, medical skills, his necktie, her shoes, etc………garbage in, garbage out.
I think patients should be free to post reviews about their doctors or other health care providers. Just displaying a number from 1 to 5 is not enough. Patients love to read comments by others, as well as using other public information in picking a doctor. While doctor rating sites are not complete in itself, it is one of the many ways in conjunction with others that many consumers use in picking a doctor.