Rate-a-Doc: Online services prompt some to use privacy agreements

Some doctors are raising eyebrows by trying to control what patients say about them in online rating services. The rapidly growing Internet rating services are themselves eye-opening. They 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.

Typical is the comment offered about a Richmond area physician on a site called RateMDs: “[S]he was rude and condescending at times. I felt very rushed and it was very obvious she was more concerned with getting me out than listening to my concerns.”

A psychiatric office in Roanoke was blistered on the Angie’s List Web site with a comment that the “diagnostic team did not respond to my child’s needs” and the staff was “rude and unreliable.”

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. 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.

A spokesman for Medical Justice explains that, in Segal’s view, the medical rating sites “do more harm than good.” Shane Statler explained that there was often no way to determine if posted comments actually came 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 is 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 a 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.

Reviewing doctors online is a relatively new phenomenon, but apparently catching on quickly. 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 posted.

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

Hicks said her Web site 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.

A spokesman for Angie’s List said the company had no plans to begin offering ratings of lawyers or legal services.

There’s no apparent stampede by doctors to use the privacy forms in Virginia, according to W. Scott Johnson, general counsel for the Medical Society of Virginia. “I don’t think there’s been much activity about it,” he said.

The MSV posted a link to a recent article about the privacy forms on its Web site, but it does not offer any suggested forms to its members. “We’ve just been trying to keep physicians informed about it – in sort of an FYI,” Johnson said. “We’ve not been getting calls or voices of concern or anything of that nature.”

The use of patient privacy agreements has caught the attention of Paul Levy, an attorney with the Public Citizen Litigation Group. He pointed to broad language used in one form – available online from a New Jersey medical practice – that appeared to bar any publication of commentary about the physicians, not just on the Internet. Levy said the form, as written, might be read to forbid patient reports to state regulators or to a medical malpractice lawyer.

Levy said his group is ready to take up a patient’s cause if the issue arose from one of those forms. “If somebody came to us with an interesting case, we would figure out whether it was litigable,” he said.

Rod Smolla, a First Amendment scholar and dean of the Washington and Lee University law school, 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 critical posts.

“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.”

Robert M. O’Neil, director of the Thomas Jefferson Center for the Protection of Free Expression, says 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. “First because this is private action with no government involvement or imprimatur, and second because patient compliance is presumably voluntary. 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, 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 the forms are not appropriate for publicly funded health care.