Should you keep patients from commenting online?

A column examining the ins and outs of contract issues

By — Posted Sept. 21, 2009.

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What do physicians have in common with restaurants, dry cleaners and plumbers? All are being critiqued online by the public.

Is there anything you can do about it? Yes. Have your patients sign a contract promising not to talk about you online. But realize that this approach comes with risks. The action could offend your patients. And you might inadvertently send them on a hunt for online comments about you when they never would have even thought to look for them.

There are about 40 Web sites where patients can post statements and critique physicians. There are few checks and balances to ensure that the posters actually are patients and that the content of the posts is truthful. Many physicians note that because most of these sites allow users to post anonymously, there is little to prevent a competitor, an unhappy employee or anyone else from posing as an anonymous patient and posting a negative rating.

On the other hand, some commentators have said these Web sites can be as helpful as an unpaid focus group, providing constructive criticism by highlighting the areas the physician is doing well and other areas where improvement is needed.

Regardless of your opinion about these sites, physicians have a real and legitimate concern that patients, and potential patients, are taking the comments seriously, rather true or not. Unlike word-of-mouth -- the most common way patients choose a doctor -- word-of-Web doesn't disappear into the air once the comment is made.

I'd like to talk about the legalities and niceties of online posting contracts through the example of a client of mine, who I'll call Dr. J.

He discovered he was critiqued on multiple Web sites devoted to rating physicians.

He appreciated this comment: "I have been seeing Dr. J for about four years and he came highly recommended by a dear friend. Dr. J is very knowledgeable, pleasant, professional, personable and an overall excellent physician. I highly recommend Dr. J (and have many times) to anyone looking for a brilliant cardiologist who goes above and beyond."

He was livid at this comment: "Dr. J has a cold demeanor and poor bedside manner. He was very unprofessional and wouldn't listen to my health concerns. I wouldn't recommend Dr. J to my worst enemy."

To stop any more unwanted postings, Dr. J decided to ask his patients to sign a contract whereby the patient agreed to refrain from posting any commentary about the physician on online forums, whether by name or anonymously.

His patients still may verbally share opinions with others, but online postings are contractually prohibited. The contract between the physician and the patient does not itself violate the patient's freedom of speech under the First Amendment, because it is between two private parties (the physician and the patient).

In the event that the patient breaches the agreement and posts an online comment, the physician may attempt to enforce the contract by presenting it to the Web site and asking that the post be removed. When the post is anonymous, there is an additional layer of challenge, because it is difficult to prove that the post came from a patient who has signed the contract. Federal law prevents anyone from suing a Web site for liability over what is posted, no matter how false or defamatory it is.

Also, the Health Insurance Portability and Accountability Act and state privacy laws restrict the physician's freedom to respond directly on the site. For example, a physician can't post identifying information about the patient, or post anything from the patient's medical record, to the site as part of his or her rebuttal.

Contracting with a patient before any post is made is one way to limit online critiques. But presenting such a contract -- and enforcing it -- can carry its own problems.

The patient being asked to sign the contract may never have intended to post an online rating about the physician. Moreover, the patient might not have even known that these online forums existed, but now the physician has brought them to the patient's attention.

Dr. J experienced mixed reactions from his patients. While some patients were happy to sign the contract and understood Dr. J's desire for implementing the policy, other patients were offended and refused to sign.

Whether you plan to offer such a contract to your patients, one-on-one communication remains the best prospective remedy to avoid negative online postings.

Talk to your patients, encourage them to share any concerns and address them quickly. In most cases, those discussions will clear up any animosity and will reduce the patient's need to post opinions or vent online.

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