The authors’ firm offers legal services to physicians who want to curtail unauthorized commentary on the Internet about the care they provide.
CASE: Accusatory comments from a nameless source
A small-town ObGyn discovers an online surprise: a claim by an unidentified patient that he caused the stillbirth of her infant. Convinced that the allegation is false, he strives to uncover the patient’s identity and counter the charges. Only after months of litigation is he successful. The patient in question was particularly noncompliant with prenatal care: She continued to consume alcohol and smoke throughout the pregnancy.
Could this kind of smear on a reputation happen to you?
Professionals have long gone to extreme measures to protect their reputation. In the early days of the Republic, gentlemen defended their honor with violence. Remember Alexander Hamilton? After his allegedly defamatory comments about longtime rival Aaron Burr appeared in a New York newspaper, Burr killed Hamilton in a duel.
We are fortunate that an attack on our professional reputation no longer needs to be addressed with violence—but we have other challenges to overcome. Scandalous comments can now be posted instantly, worldwide. Such comments can be uploaded anonymously by anyone who has a computer and a vendetta. Under Section 230 of the Federal Communications Decency Act, Web sites that serve as platforms for blogs enjoy complete immunity—even when those blogs are malicious.
With a mouse-click, a person can anonymously tarnish a reputation that took decades to build. Such musings include “He is a butcher who should be in jail” or “He’s a rotten doctor and a thief.” Hosting Web sites have no legal responsibility for content. Even if a physician can determine the blogger’s identity—itself a challenge—the doctor must hold his tongue because of privacy laws.
The Web sites that purport to “rate” physicians are hardly repositories of substantive information on which to base life-and-death decisions. Some use the sophisticated metrics of “smiley faces” or “frowny faces” to characterize doctors. The great majority of sites admit that they cannot confirm that the poster is even a patient.
One thing is evident: Most of these sites exist to make money. Observe the ads for erectile dysfunction drugs that straddle the posts. The more salacious the posts, the more eyeballs and dollars for the owners of the site and the sponsors of the ads.
Is there a solution that can protect physicians?
In response to this worsening problem, we developed an agreement for physicians to use with patients to prohibit online rating of the physician without the doctor’s assent. The document was unveiled in 2007 as a bilateral privacy agreement, but it has evolved to encourage ratings on sites that embrace minimum standards of fairness and balance. This is accomplished by having the patient transfer copyright to commentary to the treating physician. If a post is fraudulent or defamatory, the doctor has a tool to enable its removal.*
The initial agreement received much attention—and some criticism. Opponents refer to it as a gag order that impedes free speech. “What are they trying to hide?,” goes the insinuation. “Patients should have a right to know what kind of care they can expect to receive from a doctor,” plead others.
We agree: Patients have a need and a right to know what kind of care they can expect from a physician. But we reject the premise that anonymous, undocumented comments posted on a Web site whose owners are unaccountable for what is said produce this information. We do believe that patients are entirely qualified to provide impressions, but such Web sites are being used as surrogate, supposedly objective measures of quality of care. In that role, the sites have failed.
A physician is not a roofer
Selecting a physician is different from hiring a roofer. First, some measure of the success of medicine depends on the patient. Adherent patients fare better than nonadherent ones. A roofer asks only that the customer pay for services provided. If that roofer asked the customer to pay and, in addition, layer the caulk, the comparison might work, but that’s not the case.