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Should doctors be able to gag patients online?

Posted: May 24, 2011

One of the more frightening aspects of the ever more free exchange of information on the internet is the apparent impulse in many to stifle this open dialogue, particularly many who have a great deal of power, money or influence.

Censorship, of course, far predates the internet. But it seems every day there is a new venue where someone is trying to get someone to STFU. And while the internet is certainly used for spreading misinformation, accidentally or deliberately, should people be allowed to tell a story that is true and correct to their knowledge if the spread of that information stands to harm another individual?

The answer, of course, is yes. But Ars Technica writer Timothy Lee brings the issue of online reviews and medical reviews to the forefront again with his tale of an inadvertent almost-gagging when seeking a new dentist. Lee hadn’t planned on reviewing the dentist necessarily, but while filling out the stock-standard medical forms in the new patient intake, Lee noticed something out of sorts and investigated. What he found is a little disturbing and creates a few questions as far as the rights of private citizens to- well, speak. Lee explains:

Yelp says Dr. Cirka is one of the best in the Philadelphia area. The receptionist handed me a clipboard with forms to fill out. After the usual patient information form, there was a “mutual privacy agreement” that asked me to transfer ownership of any public commentary I might write in the future to Dr. Cirka. Surprised and a little outraged by this, I got into a lengthy discussion with Dr. Cirka’s office manager that ended in me refusing to sign and her showing me the door.

Lee explains that the agreement was supplied by a group called “Medical Justice,” purporting to aggressively defend doctors against frivolous malpractice claims. But on their site, buried in marketing-speak that can almost make you sympathetic to their free-speech objections, is a stance on net reviews that is chilling.

The practice also seems to rely heavily on both patients’ and doctors’ lack of understanding of laws surrounding these issues. Lee describes how the office was unable to explain some very simple implications of the agreement it enters into with patients on a daily basis:

I had a long conversation with Dr. Cirka’s office manager, who insisted that the agreement was not intended to censor the truthful reviews of Dr. Cirka’s patients. Rather, she said, it gave Dr. Cirka a tool to remove fraudulent reviews. She said they were especially concerned about non-patients (such as competitors, ex-spouses, or former employees) writing fake reviews to damage Dr. Cirka’s business.

She didn’t have a good answer when I pointed out that the agreement’s text didn’t say anything about fraudulent reviews. She also couldn’t explain how the agreement could bind non-patients, who by definition will not have signed it.

The conversation Lee recounts is really the crux of the issue here- it’s almost impossible to root out unethical negative complaints without stifling the many others who may have legitimate reason to post an unfavorable review. Recently, a doctor in Wisconsin brought a defamation suit against a patient’s son after the man posted a negative review online. The case was thrown out.

Do you find this practice unsettling? Should doctors be able to interfere with information you share outside their offices? Are the limits of HIPAA laws alone enough to place doctors into a protected class immune from online opinion that doesn’t apply to restaurants, nail salons, bars and other businesses?



Comments


One Archived Response to “ Should doctors be able to gag patients online? ”

  1. Anonymous
    Jun 8, 2011

    As a practicing dentist (and one who has never had a negative online review that I am aware), I would like to add the following to the discussion:

    First, there is the very real problem of false reviews by competitors, ex-spouses, and former employees.

    Second, frequently the adverse outcome of a procedure is due to a rare, but possible, side-effect that is deemed an acceptable risk given the benefits of the procedure for the vast majority. For example, some people are allergic to anesthesia even to the point that death is a possibility, but given the extreme rarity of a life-changing/ending allergic reaction, the advantage of no pain during a procedure outweighs the risk. However, if someone experiences a side-effect (other than death), they will be more likely to blame the practitioner and post a negative review even if the practitioner did everything he/she was supposed to have done from and moral, ethical and legal review of his/her actions.

    Third, most patients simply do not understand the procedures sufficiently to make assessments of the quality of the care they received with any degree of accuracy. Frankly, a dental cleaning that involves some discomfort is often a better cleaning than one that has no pain at all, but the practitioner who creates some discomfort will more likely be chastised on the internet.

    Last, and most relevant in my opinion, when the average individual is slandered, they have the recourse to defend themselves by telling their side of the story. Physicians and dentists are prohibited by HIPAA to even acknowledge a patient is a patient without written consent. I'm all for free speech, but it's an unfair fight to say one side can say anything they want, but the practitioner has to sit silent and just accept the damage to his/her livelihood even when they did nothing wrong by any impartial qualified evaluation.

    I don't believe the forms mentioned in the above article will solve this matter. I believe the best solution is to change the HIPAA law to allow practitioner's to break patient-doctor confidentiality to the extent relevant for the practitioner to tell his side of the story and defend himself/herself in the public domain. In other words, a practitioner could not divulge a patient had AIDS if the complaint was solely focused on the lack of courtesy by the front desk or a financial dispute, but if the complaint was about a severe infection after a root canal, then the AIDS medical history of the patient is very relevant and the practitioner could use that fact in his defense, but only after the patient initiated the complaint.

    Sincerely,

    Dr. H