Protect Your Practice And Reputation From A "cyber Slam" With A Mutual Privacy Agreement

Privacy Agreement

Listing: Sam's Plumbing and Heating
Posted Comments: "I'd avoid Sam's Plumbing and Heating. They showed up late to every job, and proceeded to repair the toilet in my master bathroom-when the problem was with the toilet in my guest bathroom…."

Listings and comments like these are popping up on sites all over the internet.  They can be quite useful when deciding between two given plumbers, or roofing contractors.  The problem is many such sites are now permitting users to post similar comments about physicians, and what may be a good idea when looking for someone to fix a clogged drain, may not be such a good idea when looking for the right doctor to repair a clogged artery!

The point of the now more than 40 websites that allow physician ratings by consumers is that doctors are fair game just like plumers or any other service professional.  And not to take anything away from the skills of plumbers, there are some very significant differences between fixing leaks, and medicine.

 First and foremost, the delivery of healthcare is not done with the patient on the sidelines.  Medicine is a participatory sport.  Your plumber simply asks that you pay his bill; he doesn't ask you to come and help him caulk your bathtub.  However, your doctor will need you to help with your care and treatment – and if you do not hold up your end of the bargain – the outcome comes into question.  Also, medicine is rarely handled by a single person, especially in the management of seerious diseases.  Usually, a team of physicians and healthcare providers are involved – so it is unreasonable to single out one as "bad", or the reason why the patient received a less than desirable outcome.  Third, it takes time for medical outcomes to be fully realized, often a long time.  With plumbing, once your contractor leaves your home, you turn on the faucet – either water comes out – or it doesn't.  And finally, and the most important difference between your doctor and other "service" providers – medicine is very individualistic.  After someone has had a roof repaired, it will make no difference during the next rain storm if it leaks or not whether the owner of that home is a 450 lb couch potato or a tri-athlete.  But, you bet that would make a difference after they both had heart surgery!

Yet, none of this is taken into account on such websites.  So dissatisfied patients leave messages such as, "Dr. Jones seems to have learned everything he knows from studying Grey's Anatomy – the TV show, not the text book."  It is very hard to establish libel for such comments, as often as they are left anonymously.  Even worse due to privacy and HIPPA laws, practicing physicians are prohibited to respond in kind to postings of this nature.  In fact, doctors cannot even admit that a person who has posted disparaging remarks about them are indeed their patients.

Is all this to say that consumers should not be entitled to comment on their medical care, and that such doctors rating sites do not have a purpose?  No, but there are just too many problems with them in their current state of use.

What's Wrong With the Current Model

Doctors ratings on the web could be good for the consumer and for the practice of medicine, but there are many issues with the current model.

• There is no way of knowing or proving that a posted negative comment was actually made by a patient, and not a disgruntled employee, competitor, or someone else with a personal vendetta against a given provider.
• Rarely if ever, are all the facts given.  Suppose a person posts "the doctor is a terrible surgeon, one day after my procedure my wounds opened and bled terribly and I had to be readmitted to the hospital." You probably would avoid that surgeon.  But what if you knew that the surgeon actually told the patient to avoid heavy lifting for 4 to 6 weeks, and the patient complaining actually went back to work lifting boxes in a warehouse the next day?
• The information on these sites is largely anecdotal, and just unreliable and unverifiable.

So What's a Doctor to Do?

Once a detrimental posting h, libel,as been made, there really is very little the practitioner can do to salvage his or her reputation.  Slander, libel and defamatory speech have very specific legal definitions, and because of nuances in Cyberlaw, the websites cannot be held responsible.  Which means a doctor's only option is to sue the patient directly, and in court, only direct false statements that can be proven damaging will hold up.  Opinions such as "he is a butcher" are fair game.

The best defense is to avoid such postings in the first place by having your patients sign a Mutual Privacy Agreement.  The agreement is a legally binding document that prevents the patient from making such postings without the doctor's consent.  In exchange the patient also receives from the doctor additional privacy protections above those mandated by HIPAA.  The agreement does not discourage patients from communicating their experiences about a health practitioner.  Quite the opposite, it encourages them to do so, but through proper channels and lists, medical licensing boards, hospital grievance committees, patient advocacy groups, and a wealth of other forums through which a patient can address legitimate concerns.  It also states clearly where a patient cannot air such grievances – vis-a-vis the rating websites.

Mutual Privacy agreements can do what the rating sites claim to do, set up a way for healthcare to police itself, and improve the practice of medicine.  Since they have appeared in 2007, doctors report that most patients who are asked to sign the agreement upfront do so.  It is important that you tell your patients that they are not required to sign the agreement.  If they don't, however, you may ask them to seek treatment elsewhere.  If they feel the ability to complain anonymously over unpoliced websites about the care they is important to them, then they should have the right to do so- but with a doctor who also is willing to take that risk and is comfortable with the current state of medical ratings sites.

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