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 21^st 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.