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"Vaccine against libel" could have some side effects

A practical look at information technology issues and usage

By Pamela Lewis Dolancovered health information technology issues and social media topics affecting physicians. Connect with the columnist: @Plewisdolan  —  Posted June 9, 2008.

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It's been said that once something is posted online, it is there forever. Some physicians have learned that the hard way, after disgruntled patients starting filling Web sites with complaints.

One company says it has found a way to eliminate, or at least reduce, the risk of malicious information being posted about physicians online. But some critics say their system could be more damaging to your practice than any information that might be posted.

Medical Justice Inc. has put together a contract physicians can ask their patients to sign. In it, patients promise not to post anything about their experience, good or bad, without your prior approval. The organization calls it a "vaccine against libel."

Medical Justice is a Greensboro, N.C.-based organization with membership fees ranging from $625 to $1,995 per year, depending on location and specialty. It focuses on offering products and services intended to reduce the risk of frivolous malpractice lawsuits and help fight liability cases.

It's unknown how many of Medical Justice's 1,700 members have implemented the Internet contracts into their practices.

It's all about balance

Jeffrey Segal, MD, a neurosurgeon who founded and serves as CEO for Medical Justice, said he isn't against the idea of sites where physicians are rated and discussed. But he thinks the concept is still so new that most rating sites have not found the balance between being helpful to patients and fair to physicians.

It would be difficult and expensive for a physician to win a lawsuit for defamation or libel against someone who posted comments online, Dr. Segal notes. And even if the physician did triumph, the post would often linger somewhere on the Internet. Usually lawsuits are not filed against the site, which is deemed legally not responsible for what users write.

Medical Justice says the only way its contract solution is effective is if a physician has every patient sign it. That offers protection even against anonymous posts, as the physician can contact the Web host, explain the contract violation, and get the offending post deleted, Dr. Segal said.

If a patient refuses to sign the contract, Dr. Segal said, Medical Justice doesn't expressly recommend sending that patient to another doctor. But refusal could be a sign that the patient might cause trouble later, he said.

There are potential problems, however, with asking all patients to sign, specifically any patients who receive government assistance, says attorney Alan Howard, a professor of law at St. Louis University, whose research focuses on freedom of speech issues.

Asking someone to give up their First Amendment rights in order to receive goods or services paid for by the government is illegal.

Although there is no legislation prohibiting the use of this specific type of contract, the federal government would cite the illegality to defend enactment of one. If Congress decided to pass such a law, Howard said, it would likely say "we believe in the First Amendment. We believe it's a net plus, and we think it's unseemly for doctors to use their power over patients, especially poor patients, by saying that the price you pay is you give up your rights."

But current law does protect this type of "no comment" contract if the physician only has self-insured or self-paying patients. Commerce law, Howard said, allows any two private parties to agree to almost any terms of doing business.

Dr. Segal argues that the contract does not ask the patient to give up any rights. "If they want to write something, all they have to do is tell their doctor," he said. In fact, he encourages doctors to find rating sites they trust and direct their patients there.

Still, said Howard, if a physician asked him to sign a contract agreeing not to make any online critiques, it would be a tremendous red flag.

Steve Feldman, MD, a professor of dermatology at the Wake Forest University School of Medicine in North Carolina, said he agrees it would not send a good message to patients to tell them, before treatment, that they aren't allowed to critique your services. Instead, he says doctors should encourage their patients to offer feedback.

"Err on the side of openness"

Dr. Feldman launched a physician rating site, Drscore.com, after studying the impact of patient satisfaction on clinical outcomes.

"We should err on the side of openness and tell all to go online," he said.

Patient advocate Tricia Torrey, who founded a group called DiagKNOWsis and who runs the blog EveryPatientsAdvocate.com, said she's not convinced patients should go online to critique their physicians. Even though she got into the patient advocacy sector after having a condition misdiagnosed, she has never named the doctor involved.

But Torrey doesn't think Medical Justice has the solution either.

"What I truly encourage from both sides of the doctor-patient equation is partnership and communication," she wrote AMNews in an e-mail.

She wouldn't embrace the contract, even if she were a physician fearful of what patients might say about her, Torrey wrote. "I would instead invest the money in communications training -- that is a much better fix to the problem and might yield very positive results for his/her practice."

Pamela Lewis Dolan covered health information technology issues and social media topics affecting physicians. Connect with the columnist: @Plewisdolan  — 

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