Physicians Use Copyright Infringement Threat to Block Patient Ratings on the Web

Featured Story March 30, 2009

Physicians Use Copyright Infringement Threat to Block Patient Ratings on the Web

Reprinted from INSIDE CONSUMER-DIRECTED CARE, a biweekly newsletter with timely news and insightful analysis of benefit design, contracts, market strategies and financial results.

By Michael E. Carbine, Managing Editor, (mcarbine@aispub.com)

More than 40 Web sites, ranging from RateMDs.com to Zagat, now offer consumers the opportunity to rate physicians. Most allow anonymous postings, and most offer physicians the opportunity to post rebuttals. Advocates argue that the information helps consumers who are looking for physicians or other providers. And physicians can use the information to improve their practices.

But Medical Justice, a North Carolina firm run by Jeffrey Segal, M.D., J.D., a neurosurgeon, takes issue with these sites. Two years ago he launched an "Internet defamation protection" service to help physicians force Web sites to remove negative comments. At the heart of the service: a mutual privacy agreement (MPA) that, when signed by a patient, in effect prohibits the patient from posting comments — positive or negative — about the physician on public rating sites.

"Reputation is a physician's most valuable asset," Segal tells ICDC. "These sites are not self-policed, and they are largely protected from lawsuits." He argues that the anonymous information could come from nonpatients with an ax to grind. The information is anecdotal, he claims, and it deals largely with customer service, not quality. "Physicians want to be rated on quality of care, not 'comfort of care,'" he contends.

MPA Relies on Copyright Infringement

To date, 2,000 physicians have signed up for the Medical Justice program and, according to Segal, are asking their patients to sign MPAs. What makes the agreement unique is its use of copyright law. Segal says that Web sites are immune from accountability under Section 230 of the Communications Decency Act. But they aren't immune from copyright infringement suits. So when a patient signs an MPA, the patient automatically assigns all intellectual property rights for anything the patient may write (and publish) about the physician to the physician. Should the patient post a rating on a Web site, the physician can then claim copyright infringement and issue a "take down" notice, forcing the Web site to remove the review pending further legal action.

Medical Justice wouldn't provide a copy of the MPA. But a copy obtained by ICDC.reveals a document so broadly drawn that patients could be limited from discussing their treatment with anyone but medical peer-review bodies, other medical providers and government agencies. Attorneys and other experts who were shown the agreement call it "breathtaking." But they question its broadness and ability to withstand court challenges. ICDC knows of no actual lawsuits that have been filed.

Steve Zansberg, head of the digital media and online practice group of the law firm Levine Sullivan Koch & Schulz, L.L.P., tells ICDC that while he couldn't predict that a court wouldn't honor the agreement, he's skeptical about whether all courts would honor it. "A judge may find this to be an extremely broad waiver," Zansberg says. "The key word is 'airing.' That could be construed to mean that the patient is precluded from discussing the physician or treatment with a spouse, family members, friends and colleagues." Zansberg says that he could see a court saying this was unenforceable because it is overly oppressive and broad, and even unconscionable. "It also creates an adversarial relationship between the physician and patient."

RateMDs.com Is a Popular MPA Target

RateMDs.com, a physician rating Web site with more than 700,000 posted ratings of 187,000 physicians, has become a major target for take-down notices. John Swapceinski, co-founder of the site, helped launch it in 2004 after successfully launching RateMyProfessors.com and RateMyTeachers.com. Swapceinski tells ICDC that he receives threats of lawsuits on a weekly basis, and that six have come from physicians claiming copyright infringement under an MPA. Swapceinski adds that in a new tack, one physician has gone after the site's Internet service provider (ISP). So far, no physicians have taken actual legal action against either the ISP or RateMDs.com, he says.

Swapceinski says that RateMDs.com allows anonymous postings because consumers are afraid of being blackballed by their physicians if they post negative ratings. He dismisses the argument that anonymous postings encourage postings by nonpatients. "We have found that, for the most part, people who are sufficiently motivated to rate a physician are indeed patients." The site, according to Swapceinski, monitors postings and uses various tools to flag suspicious postings, including duplicates. Physicians can respond to negative postings and ask that a review be "re-reviewed." Physicians who use MPAs are listed on the site's Wall of Shame. So far, two physicians are listed on the Wall. When asked how physicians know that ratings were posted by their patients when the postings are anonymous, Swapceinski says it's obviously a shot in the dark. "It's why I don't think this [strategy] will hold up in court."

Responding to Medical Justice's argument that customer-service measures are not relevant to physician ratings, Swapceinski counters that "patients don't want to waste money, and until physicians start giving away their services for free, patients will be interested in how they spend their money."

Angie's List Avoids Anonymous Postings

Angie's List, which began posting physician ratings in 2007, recently polled both its members and physicians who have been rated on its site to measure their attitudes about the use of MPAs. "Our members were almost unanimous in saying they were against them," Angie Hicks, founder of Angie's List, tells ICDC. "And 60% of the physicians we surveyed said they would not use them." Hicks argues that consumers should not have to choose between their First Amendment rights and their health care. "The most important thing about a physician-patient relationship is trust. And if a physician asked me to sign a waiver, it would make me suspicious and call that relationship into question," she says.

Hicks notes that consumers have been discussing their physicians since day one and that the use of the Internet to do this reflects a shift in societal norms. "The issue is how a Web site is collecting and using the information [from consumers]," she says. Angie's List does not use anonymous postings, and providers have the opportunity to respond to a negative posting. If a physician doesn't recognize a patient's name, Angie's List contacts the patient to verify the patient's identify and the validity of the complaint, Hicks says.

Hicks contends that customer-service measures are as important to consumers as clinical quality. "All elements of a physician's service are important to consumers and should be evaluated," she says. "Physicians need good interpersonal skills and should be running consumer-friendly practices." She argues that non-clinical factors make a difference in terms of the larger customer experience.

Medical Justice Pushes Ratings Standards

Segal tells ICDC that Medical Justice isn't opposed to physician ratings on public Web sites. Rather, the company wants the sites to apply certain standards developed by Medical Justice for collecting and posting comments. Among the standards:

• The site must verify that the individual posting the comment is indeed a patient of the physician, and
• Anywhere from 30 to 50 evaluations of a physician should be collected before a review is posted.

Segal also says that Medical Justice has been working with DrScore.com, a new Web site that collects patient-satisfaction measures from patients and then provides feedback to the physicians. He says Medical Justice's goal in working with sites like DrScore.com is to make sure that "ratings are done right." According to Segal, Medical Justice has provided feedback to DrScore.com on the standards Medical Justice is advocating for rating sites.

Steven Feldman, M.D., founder of DrScore.com, confirms that he has been working with Medical Justice. But he sees MPAs as counterproductive. "They limit the public's access to very positive news about doctors," he tells ICDC. "But even when the patient feedback is less than positive, those comments are a benefit to doctors because they enable us to see what we need to be doing better." Feldman also asserts that patient anonymity "is critical to ensuring that patient comments are unbiased, honest and candid."

Segal says that his goal is to "develop a [rating] system that is credible and reliable." He wants more self-policing of the rating sites so that they are less "name and blame" sites. "If there is more self-policing [of these sites] and the use of the standards we're recommending, then I say we've accomplished our mission."