By Evan Falchuk
Doctors have a right to be mad about medical malpractice claims against them.
Is there a creative solution to this mess in an old tenet of nuclear deterrence? What if doctors aggressively went after patients who sued them, and pre-emptively warned them about even complaining on the internet about their experience?
On the surface it sounds attractive. The doctor lets his patients know the rules of the game: I do my best, and you agree that if things don’t work out, you won’t turn on me. But a closer look reveals how destructive it is.
If you read about the North Carolina company that has been leading the charge in this area you’ll see why. Called “Medical Justice,” it has been getting a quite a lot of attention with something they call the “Deterrence Plan.” If a doctor buys one of these plans (the “recommended” plan is about $3,000 for the first year and $1,000 a year afterwards, depending on your specialty), and is then sued for medical malpractice, the company may spend up to $100,000 to counter-sue the patient. They will even go after any expert witnesses hired by the patient, filing complaints at any of the medical associations, specialty societies, licensing boards or others they think are appropriate.
But wait, there’s more. For an additional fee ($495 a year, $350 every year after), the company will give you its “Web Anti-Defamation Package.” This includes what they call a “mutual privacy agreement.” The doctor presents his patients with a contract that they have to sign in order to be seen by the doctor. Under it, the patient agrees they will not make anonymous comments on the internet about their experience with the doctor, and that if they do make any comments on the internet they will only be on sites that meet some company-defined “minimum standards of credibility.” If a patient does it anyway, they’ve broken the agreement and are now subject to being sued.
Think about what it would be like to be presented with these “Patient Contracts” at the doctor’s office. You’re there trying to get help from the doctor, and he responds by treating you like an adversary. Yes, some patients sue, but most don’t, even if they have a bad outcome. But treating every patient as if they might is deeply destructive of the most important aspect of the doctor/patient relationship: trust.
Lawyers (disclosure: I am one) do this sometimes. They’re very good at telling you you should never rely on “trust” in business dealings, that all you really have is what you have in writing. But the relationship between a doctor and a patient is fundamentally different than most any other relationship we enter into in life. In that relationship, trust is the most important thing you can have.
We should be looking for ways to strengthen the bond between doctor and patient, not for ways to twist it into an arms-length commercial transaction.
Perhaps the author will explain what protection I have against protected anonymous libel on the Internet. I don’t use Medical Justice’s “deterrence plan.”
I don’t need it but understand the reason for its existence. I do use the “mutual privacy agreement” because I have no other defence against internet libel by anonymous bloggers. (If you are an attorney you know this to be true.) Patients are not forced to sign it any more than I am forced to sign a contract with certain protections written into a contract for my lawyer or architect or realtor. They can see another doctor. By the way, I have a large number of patients who are attorneys and not one has objected to signing this document. If the relationship between doctors and patients is different from other relationships and not adversarial then DON’T list me beside plumbers on Angie’s List. The obligations necessary to preserve the important bond of trust between patient and physician should not be one-sided.
Hi Carol, thank you for your thoughtful comment.
Anonymous libel is tough because you don’t know who is defaming you.
There’s nothing that stops someone – even someone who signed a form saying they wouldn’t- from anonymously posting on website that “I saw Dr. X and he made a series of racist jokes during my exam.” If it never happened, it’s defamatory, but you have no idea who said it. The best you could do is tell the website hosting it that they need to take it down on the basis that they are defaming you, too. But this has nothing to do with what you have your patients sign.
The more complicated cases are where a patient (anonymously or not) posts something defamatory about you in a way that you can tell who they are. Can you respond?
The Medical Justice people tell you on their website that privacy laws say you can’t, so you need these agreements to to protect yourself. But it’s not true. If the patient voluntarily reveals their information publicly, you can respond, as long as what you say doesn’t reveal any new information.
To take a simple example, imagine a patient visits a doctor and then goes to a website and says “I saw Dr. X for surgery on my elbow, which I broke while rushing to a meeting. I noticed that he had a diploma on his wall from Harvard, but when I asked him if he went to Harvard he said he had not. Look out for Dr. X, he lies about his credentials and wants you to think he went to Harvard!”
You would be within your rights to say “Hi, I’m Dr. X. I remember meeting you and having the conversation about my credentials. As I told you at the time, that diploma is from the colleague with whom I practice, it isn’t mine. I am a proud graduate of Yale and would never want anyone to think I went to Harvard.”
While it may be unpleasant to have to deal with this kind of public commentary, in the internet era there is no avoiding it. No agreement is going to put that genie back in the bottle.
And so this is why I think these agreements are misguided. They can have little or no impact on the extent to which people will post lies on the internet, but create a whole new layer of formality and legality into what ought to be a personal relationship.
More broadly, Carol, I agree completely with your point that the bond between patient and doctor ought not be one sided. Legal agreements won’t get us there. We need more voices like yours making the point about the importance of the doctor and patient relationship. Keep the lawyers out of the exam room (well, unless they’re patients!).
[...] the internet, you simply can’t squash criticism. Indeed, in trying, doctors risk not only undermining the trust that is necessary for a good relationship with their patient, but they also miss out on an [...]
Online allegations of health care & medical malpractice is a growing problem they will never go away. My wife is a physician and I am actively taking steps to protect her reputation against future threats, although there has not been any problems to date.
I had a wonderful business utterly destroyed by a malicious antagonist, not to mention relationships, my career, finances, and the livelihood of other people that depended on the success of my business. Thankfully I was able to turn adversity into opportunity in that the business I have subsequently launched specializes in mitigating and remedying the destruction caused by this 21st Century pandemic. In effect, any efforts made by my antagonist to smear me becomes “exhibit A” for why I do what I do. My antagonist was jailed in May 2009, if a prison sentence follows things should get a lot quieter.
Physicians and all professionals need to make sure they have a robust online presence. You need to take control of Google search results for your name and the name of your practice. The worst thing you can do is wait for it to happen, it will take many months possibly years to bury offending material. This is compounded by the fact that the ISPs such as Google and other blog hosts have federal immunity from liability. It is a long and costly battle to redeem your name once you have been smeared.
Keep in mind also what is referred to as “The Streisand Effect” this is where the victim of libel or some other online problems caused thousands of times more attention to be drawn to it by picking a fight with the offender. As such, it is much better to “bury” the negative search engine results than to fight them.
Feel free to check out the tips I have posted on my website.
[...] in healthcare. The company “Medical Justice” is one such thing. I’ve written about them before. Medical Justice sees the medical malpractice crisis and devised a solution: muzzle the patients. [...]
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